Omelets and Eggs

I have now reached the Thirty-Ninth Congress and Bingham’s drafting of Section One of the Fourteenth Amendment, which means that my blogging will cease for a while. (Besides, I think I annoyed enough people with my posts last week.  Next month I look forward to irritating people of a different persuasion when the Supreme Court hears the health care arguments.)

Couple of thoughts about the chapter that I just finished about Bingham’s prosecution of John Wilkes Booth’s co-conspirators (including Mary Surratt).  The obvious irony in this case is that the great civil libertarian argued for a military trial and rejected the application of the Bill of Rights to the defendants.  Here’s the more subtle point, though.  But for the fame that Bingham achieved in this (highly questionable) prosecution, he may not have received a spot on the Joint Committee on Reconstruction and would not have been in a position to write the Due Process Clause into the Fourteenth Amendment. It’s probably going too far to say that Section One of the Fourteenth Amendment rests in part on the conviction of innocent people, but it’s worth pondering.

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2 Responses

  1. Shag from Brookline says:

    I look forward to hearing back from Gerard after his completes the chapter he is working on, especially regarding incorporation of certain of the provisions of the Bill of Rights. Query whether the chapter will also include a review of the ratification process? I am presently reading Frederick Mark Gedicks’ essay “Establishment Clause Incorporation: A Logical, Textual, and Historical Defense,” which includes discussion of both Bingham and Jacob Howard (near the end which I haven’t gotten to as yet). Incorporation of the Establishment Clause via the 14th Amendment is contentious, including Justice Thomas’ anti-incorporist views. The article runs 72 pages but has a lot of white space. What caught my attention was Gedicks’ list on pages 9-11 of what might possibly result from the disincorporation of the Establishment Clause, what with the current religious/cultural wars of the GOP candidates in their quest for the presidency. The essay is available via SSRN at:

    As for Gerard’s comment on annoying/irritating people, that’s a two-way street.

  2. Shag from Brookline says:

    I finished the essay referenced in #1. I don’t think it adds to Bingham more than has been noted in past posts by Gerard, and of course it is not as complete. While I recommend the essay, I am disappointed with its closing as the author declines to himself address “Serious History.” Kurt Lash’s work is referenced extensively regarding the “entire historical record” on incorporation of the Establishment Clause. Perhaps legal historians will take up the author’s concluding point: “It is far past time, then, for a comprehensive re-examination of historical evidence on the question whether the Fourteenth Amendment applied the Establishment Clause to the states. Given the logical and textual case for Establishment Clause incorporation, it is no longer sufficient to cite Blaine as if it alone demolishes the historical case for incorporation. The high stakes surrounding incorporation for the Establishment Clause demand its serious reconsideration in the light cast by all of the Fourteenth Amendment history.” (Page 72)

    I shudder to consider the possibilities of disincorporation noted by the author at pages 9-11, some of which are very high stakes.