John Bingham and Unwritten Rights

I want to draw your attention to a superb article by Kurt Lash that came out in January about the Privileges or Immunities Clause.  The Article traces the evolution of John Bingham’s thinking during the drafting process that produced the Fourteenth Amendment and is something that any serious scholar of that period will have to address.

Two things struck me about Lash’s account.  First, Bingham never referred to Justice Bushrod Washington’s discussion of fundamental rights in Corfield v. Coryell as a guidepost for interpreting the Fourteenth Amendment. Second, Bingham insisted that the Privileges or Immunities applied the first eight amendments to the Constitution to the states and nothing more.

There are some important conclusions that follow from these observations (which, by the way, are consistent with my research thus far).  One is that the Court’s holding in Slaughterhouse was correct at least according to Bingham’s understanding of the text (i.e., common-law rights were not incorporated).  Another is that Bingham appears to have been hostile to the concept of unwritten fundamental rights.  One cannot say that he opposed all such rights, but his exclusion of the Ninth Amendment from the Fourteenth is telling, as was his refusal to cite Corfield when others did. He did say at one point that the Due Process Clause should be read against the backdrop of existing case law, which did recognize the concept of substantive due process, but that looks like the only time he said anything that could be construed as endorsing that doctrine.  No wonder Justice Hugo Black liked Bingham so much.  They shared a rather similar view of how the Fourteenth Amendment should be interpreted.

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6 Responses

  1. Joe says:

    The article suggests Slaugherhouse leaves open the “incorporation” of the BOR, but the Supreme Court soon (citing its tenets) ended that possibility.

    As for the “privileges or immunities” being limited to the BOR, freedom from slavery itself would seem to compel some other rights. There should be some middle ground there that resists incorporating common law rights as a whole.

    For instance, some freedom to contract (without going into a myriad of questions like minimum wage laws or whatever), choose lawful occupations, travel inside states (in ways that don’t raise Crandall v. Nevada issues), control family life in some basic ways, etc. seem basic to “freedom.”

  2. Chris says:

    He quoted Corfied in his January 1871 report on women voting. See at 61-64.

  3. Chris says:

    “Second, Bingham insisted that the Privileges or Immunities applied the first eight amendments to the Constitution to the states and nothing more.”

    His March 1871 speech did say “chiefly,” though.

  4. Gerard Magliocca says:

    The 1871 report on Victoria Woodhull’s petition (for women’s suffrage) is problematic in that it says several things that contradict Bingham’s prior statements. That could be because he was issuing the report on behalf of the Judiciary Committee, which had many members with different views, but I’m not sure.

  5. Joe says:

    The haziness is telling.

  6. Gerard Magliocca says:

    Well, Bingham was not hazy — his views were pretty clear. The Congress more generally is a different matter.