The Lost Speech on the 14th Amendment

I am in Washington DC doing research for my John Bingham biography.  (And in case you haven’t heard, it’s boiling hot here.) There is an interesting point about the project that I want to share.

The bane of my existence these days is my inability to find anything that Bingham said about Slaughterhouse or any case interpreting the Fourteenth Amendment.  There are no public statements and (so far at least) I cannot find any private ones. Moreover, I see no evidence that anyone even asked him for his views on the issue.  Part of the reason that there is nothing in the record is that Bingham was in Japan from 1873-1885 as our Ambassador.  He may have felt constrained in that role to offer public comments about Supreme Court cases, or he may just have not been paying attention.  (That isn’t a satisfying explanation, but it’s the best that I can do at this point.)

This raises a fascinating counterfactual.  Suppose Bingham had not been denied renomination for his congressional seat in 1872.  Then he would have been in Congress when Slaughterhouse came down.  It is hard to believe that in that public role and with that platform he would not have made a major speech either attacking or praising the decision.  Would this have mattered in subsequent cases?

The answer may turn on whether Bingham’s views were representative or idiosyncratic.  If they were representative, then removing him from the scene at that crucial time should not have mattered much.  He may have been more eloquent or authoritative as the drafter of Section One, but others would have expressed similar views and moved the legal culture in a similar way.  If his views were unusual, though, then silencing his voice would have counted for a lot.  He was in no position to shape the law from Japan, and hence his position on incorporation steadily declined.

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