John Bingham and Thomas Jefferson

101px-John_Bingham_-_Brady-HandyI think I’ve come across an interesting inflection point in constitutional discourse (or what others might call an example of intergenerational synthesis.)

In 1871, John Bingham gave an address on the House floor in support of the Ku Klux Klan Act that offered a detailed explanation of his view that Section One of the Fourteenth Amendment extended the Bill of Rights to the States.  At one point, Bingham declared:  “Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.”

Here’s the problem:  I cannot find any evidence that Jefferson said this.  He was an advocate of a bill of rights after the Constitutional Convention, and many of the subjects that he wanted addressed were covered by the first set of amendments.  As far as I can tell, though, he never said that the first eight were a bill of rights.

What was going on?  Maybe Jefferson did say this and I can’t find the quote.  Maybe Bingham thought Jefferson said this but was mistaken.  Or maybe Bingham just made this up.  In any event, what I find fascinating about this is that many people today believe that Jefferson must have said something like this.  Why do they think that?  Partly because of the importance that we attach to the Bill of Rights.  It also may be that we think Jefferson said this because John Bingham told us so.  In so doing, though, Bingham was changing the Constitution’s meaning.

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6 Responses

  1. Joe says:

    Justice Black cited that line in his Adamson v. CA dissent. Anyway, it wouldn’t be strange, since Jefferson, e.g., talked to Madison about the need of a “bill of rights” and listed various rights that eventually wound up there as examples. It would be passing strange actually if after listing said rights as necessary for a “bill of rights” and such rights put there that he didn’t think that the resulting list (bill) of rights was not an American bill of rights.

    I also see Bingham’s statement is cited in Prof. Akhil Amar’s book on the bill of rights. I wonder what he thinks of this enterprise. For instance, Amar cited Bingham using the term and argued the others listening were not surprised. He cited Rep. John Hale and James Wilson also using the term, one that apparently was not in common use until c. 1900.

    I would think Bingham et. el. would avoid things listeners would find strange. Perhaps, it was only used in special circles, but Bingham was at times speaking to a wider audience. Then again back in 1840 in oral argument for Holmes v. Jennison, an advocate told the Supreme Cour court that the amendments were “commonly called the bill of rights.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=39&invol=540 Where did he get this idea?

  2. Gerard Magliocca says:

    It’s not strange if you think of the Bill of Rights in formal terms, which is how most people thought about it then. Any formalism can seem silly (and maybe is) except to the people who care and insist that equivalent things are not equal. Anyway, as I’m working through the paper you see a gradual shift to the modern view, though it took many decades to take hold. Each person who called the first set of amendments the Bill of Rights moved that forward.

    • Joe says:

      I continue to be confused about this. I have seen repeated use of “bill of rights” in common parlance, e.g., during the Founding Era. The term was not some special term of art. Jefferson, e.g., again, spoke to Madison about the need of a “bill of rights.” He meant a list (bill) of rights and cited examples found in our own. If all we are talking about is that the exact usage of “Bill of Rights” wasn’t popular — putting aside the as was noted by the advocate in 1840 that it was “commonly” understood the amendments were a “bill of rights” (cf. “band-aid” with Band-aid [TM]), it is somewhat trivial. But, you seem to be saying that the very term “bill of rights” had a special meaning that the first ten amendments did not meet. This however is not what my reading — as shown repeatedly by examples — of the evidence.

  3. Brett Bellmore says:

    “Perhaps, it was only used in special circles”

    Alternatively, perhaps it was only NOT used in special circles. Which would in some ways be even more interesting.

  4. Gerard Magliocca says:

    The problem is that almost nobody called what was ratified in 1791 “the Bill of Rights” for a long time afterwards. The best you have is one quote from a lawyer fifty years later. That’s not much, and besides you cannot find people saying it then either. The first notable reference comes in 1860, then some more during Reconstruction, and then more after 1900. But as I said, you can read the paper when it’s ready and judge for yourself.

  5. Curmudgeon says:

    Why does anyone care what Jefferson thought about the Constitution? He was in France.