The Thirteenth Amendment and John Bingham

101px-John_Bingham_-_Brady-HandyLast week the Fifth Circuit followed at least one other circuit court by upholding federal hate crimes legislation as an exercise of Congress’s enforcement authority under Section Two of the Thirteenth Amendment.  One question worth asking is if that authority (and the Court’s 1968 decision in Jones v. Alfred H. Mayer Co) will eventually be narrowed to make them consistent with City of BoerneShelby County, and other recent cases on Congress’s enforcement power under the Reconstruction Amendments.

Related to that issue, I want to point out an inconsistency of sorts.  One reason why the Thirteenth Amendment is hardly ever used to sustain federal legislation is that John Bingham read it narrowly.  As I explain in my book, Bingham was the only significant congressional Republican who opposed the Civil Rights Act of 1866, and he did so on the grounds that the statute was unconstitutional.  Only with the Fourteenth Amendment, Bingham said, could such a statute be sustained.  His colleagues disagreed.  They argued that Congress already possessed the authority to enforce civil rights within the states. The Supreme Court, though, agreed with Bingham’s position when it rejected the Thirteenth Amendment in The Civil Rights Cases (addressing a broader civil rights statute enacted in 1875). In this respect, Bingham’s idiosyncratic view became (and still is) the law.

When it comes to whether the Fourteenth Amendment incorporated the entire Bill of Rights, Bingham once again held what could be described as an idiosyncratic view that the answer was yes.  (It wasn’t as idiosyncratic as his view of the Civil Rights Act of 1866, but since that is how his position gets described by critics let’s just go with that.)  Most people, though, take that “outlier” position as evidence that his view cannot be the law.  How can that be true when the opposite is true for the Thirteenth Amendment?

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