We think of John Bingham as a civil libertarian because he called for the extension of the Bill of Rights to the States. Some of his views on free speech, therefore, may come as a surprise. (They certainly did to me.)
During President Andrew Johnson’s Senate trial, Bingham (as a House manager) defended the article of impeachment that accused the President of sedition because of his criticisms of Republicans in Congress. In response to defense counsel’s argument that the charge violated the First Amendment, Bingham said that this was wrong because, in his view, the Alien and Sedition Act of 1798 was constitutional. After pointing out that no court had held the Act invalid, he explained:
“I admit that no such law as that ought to be upon your statute-book, of general opposition and application in the country, except in a day of national peril. That was a day of national peril. There was sedition in the land. The French Minister was abroad in the republic, everywhere attempting to stir up the people to enter into combinations abroad hurtful and dangerous to the security of American institutions.”
. . .
“The freedom of speech guaranteed by the Constitution to all the people of the United States is that freedom of speech which respects, first, the right of the nation itself, which respects the supremacy of the nation’s laws, and which finally respects the rights of every citizen of the republic. . . . I stand, Senators, for that freedom of speech, but I stand against that freedom of speech which would disturb the peace of nations and disturb the repose of men even in their graves.”
Somehow I doubt that Bingham’s (qualified) endorsement of the Alien and Sedition Acts will be cited by anyone as an expression of the original understanding of incorporation.