John Bingham in the Supreme Court
The book is six weeks away from publication. (Here is a different picture of Bingham that someone sent me recently.) I thought I’d review how the Supreme Court has cited Bingham in its opinions. This is not something that I discuss in the book all that much, in part because I did not want to disrupt the flow of the narrative.
The first judicial discussion of Bingham came in Justice Black’s dissent in Adamson v. California, in which he advanced his theory of the total incorporation of the Bill of Rights by reviewing the legislative history of the Fourteenth Amendment. Two other opinions refer to Bingham in the context of incorporation (Justice Black again in a separate opinion in Duncan v. Louisiana, and a note in McDonald v. Chicago (incorporating the Second Amendment)). Two more cases use Bingham to assess Congress’s enforcement power under the Reconstruction Amendments. For example, in Jones v. Alfred E. Mayer, the Court held up Bingham’s speech against the constitutionality of the Civil Rights Act of 1866 as evidence that (since it was enacted over his objections) Section Two of the Thirteenth Amendment should be read broadly. On the other hand, City of Boerne v. Flores relied on the rejection of Bingham’s first draft of Section One of the Fourteenth Amendment as evidence that Section Five of that Amendment should not be read so broadly.
The most detailed assessment of Bingham’s views came in Oregon v. Mitchell, which held that Congress could not regulate the minimum age of voters in state elections (and was overruled by the Twenty-Sixth Amendment). Justice Harlan’s partial dissent relied on Bingham’s assertions that the Fourteenth Amendment did not speak to voting, while Justice Brennan’s partial dissent argued that this was not Bingham’s view. Justice Brennan’s analysis, I must say, was way off, though in fairness he was reflecting a widespread view at the time about what Bingham said. It is perfectly clear that Bingham thought Section One of the XIV Amendment did not apply to voting, as I explain in the book. The Court also looked to Bingham in Richardson v. Ramirez, which held that felons could be constitutionally disenfranchised by pointing to his statements in that vein during debate on the Fourteenth Amendment.
Another category of cites comes in the context of 42 U.S.C. Section 1983, as Bingham played a significant role in the drafting and enactment of that provision. In Monell v. Department of Social Servs. of New York, the Court cited Bingham (accurately in my view), for the proposition that Section 1983 can be read to impose tort liability on municipalities. Justice Brennan’s concurrence in Quern v. Jordan built on those observations, while Justice Powell’s dissent in Owen v. City of Independence used Bingham to argue against excessive liability for municipalities. (A couple of other Section 1983 cases refer briefly to Bingham.) There are also a couple of Section 1981 cases that mentions Bingham’s comments on the Civil Rights Act of 1866.
Then there is Pyler v. Doe, which cited Bingham (correctly) to support the point that the Equal Protection Clause applied to illegal aliens, since they were persons and aliens were intended to be covered by that portion of Section One.
Finally, Justice Douglas cited Bingham three times in separate opinions. In Furman v. Georgia, he quoted Bingham’s view that the Fourteenth Amendment prohibited cruel and unusual punishments to argue for the abolition of the death penalty. In Picard v. Connor, he argued in a footnote that Bingham used due process and equal protection interchangeably. And in Anderson v. United States, he cited Bingham’s role in framing the Enforcement Act of 1870 (to protect voting) in passing.