Author: Gerard Magliocca

3

Justice Bingham?

One curious letter that I stumbled upon in the Bingham papers was sent to him while he was Ambassador to Japan. Dated March 16, 1877 and sent by S.R. Frazier, the letter states that:

“It has been whispered among some prominent ones at Washington as it comes to me that had you been here at home you would have been quite sure of the place now supposed to be in the hands of Stanley Matthews had you wished it.”

Stanley Matthews was appointed to the Supreme Court in 1881. (So Frazier’s gossip was off by a few years).  I see no other indication that Bingham was ever considered for the Court, but the prospect of his service there while the Fourteenth Amendment was being initially construed is a tantalizing constitutional “what if.”

The picture, BTW, shows you what you can get at the local diner in Cadiz.  I passed on the Bingham — eggs benedict is not my favorite.

11

Extending the FBI Director’s Term

FBI Director Robert Mueller’s ten-year term of office expires in September, and the President is proposing that Congress extend his tenure by two years.  This is a terrible idea.  That is so not because there is anything magical about ten years.  The point of giving the director a term in office was to prevent the kinds of abuses (ahem . . . blackmail) that J.Edgar Hoover engaged in to stay in office for 48 years.  If Congress had picked a twelve-year term when the limit was established in the 1970s, I would have no problem.  But once the term is set, it should not be changed for one man.

Besides, there is no principled reason for extending Mueller’s term.  We face no emergency or extraordinary situation. The President simply does not want to have a messy political fight to confirm a successor this summer (even though the deadline for such a nomination was clear a long time ago).  Boo hoo–nominate someone and take the heat.

2

John Bingham–The Man

Another interesting discovery in Cadiz was a recollection by William Lucas, who was a prominent African-American in the town (he was the municipal clerk for thirty years).  I think this gives us a taste of Bingham’s personality:

“It was my fortune to know Mr. Bingham intimately from my boyhood days.  Being a poor colored boy, I entered his family when about 17, and remained to do family chores and errands while attending the leading public schools—from 1867 to 1872.

From the first Mr. Bingham took a personal interest in me and assisted me much in my efforts to pass through schools here.  . . . In 1872 I graduated, and to rest up from school work I took a trip to Richmond Virginia to visit relatives there.

During this summer Mr. Bingham received his appointment to Japan, and now to show his deep interest in a poor unknown colored boy!  He was in need of a private secretary to accompany him to Japan.  No sooner did he arrive at his home after receiving his appointment; then he sought me out to take the position.  He came himself down to my mother’s house to offer me the place.  When he learned that I was away, he was quite insistent that I should go with him and asked mother to give him my address that he might send for me to come home at once.  My mother, in her ignorance supposed Japan, of which she had never heard, was somewhere clear outside of the world, and fearing I might go, and never return to her again, refused to give him the proper address or to inform me of the offer till it was too late, and so I lost the opportunity which I have many a time since sincerely regretted.  But I have never ceased to appreciate the friendly interest of Mr. Bingham as shown on that occasion.  That he in the zenith of his fame, should remember the errand boy at home and offer him a position of trust.”

Lucas then recalled another encounter with Bingham almost twenty-five years later:

“[M]y oldest son Fred, by accident fell from the roof of a house, sustaining injuries that, for many days, were thought to be fatal.  Day after day, we sat in hourly expectancy for that grim messenger to make his appearance.  During one of these dark sad days, I met Mr. Bingham on the street, who having heard of the accident, stopped me and said, ‘William Henry,” the name he always called me by, “How is Fred?”  When I had told him of his precarious condition, he said “Well, that is too bad.  You tell Fred that I am coming down to see him.”  He was then walking feebly with his cane himself and I hardly expected him to come down so far.  But that same evening I heard the tap of his cane on the porch.  Opening the door there was Mr. Bingham, who came in and sat down by the bedside of my sick boy.  It was a moment of surpassing interest.  Here was a great man who had thrilled the nation with his eloquence and whose statesmanship had won imperishable and lasting renown, sitting by what seemed to be the bedside of a poor dying colored boy; and with voice trembling with emotion and eyes dimmed with tears, he talked of the nearness of eternity and the kind love of the Heavenly Father, as tenderly as a mother would comfort her sick child.  And on going to leave, in bidding him good bye he said, chokingly with emotion, “Fred, in our Father’s house there are many mansions, we shall meet again.”

Toast by W.H. Lucas, Bingham Banquet, Oct. 5, 1901 (Harrison County Historical Society)

2

John Bingham’s Last Word on the Fourteenth Amendment?

One of my interesting finds in Cadiz is that John Bingham did, in fact, make a speech about the Fourteenth Amendment after he left Congress. In 1885, he returned to the United States after serving as our ambassador to Japan for 12 years.  Not long after his return, he addressed a Republican rally and said the following:

“It gives me pride to know that the representatives of the Republican party—which is emphatically the party of the country, the party of the Constitution and the party of the Union—had the good sense and the patriotism in this contest to open it with the declaration that the guarantees of the Constitution (meaning these amendments that were put in the Constitution by Republican votes both in the Congress and in the Legislatures of the States) must be sacredly observed and zealously maintained . . .”

After explaining that the Democrats opposed the Fourteenth Amendment’s guarantees, he said that:

“The Constitution does not execute itself.  It must be executed though laws.  It must be executed through executive officers.  It must be executed through judicial officers.  And these guarantees of which I speak come home to the bosom of every man dwelling between the two oceans under the protection of the flag.  It devolves on the State Legislature to see to it that the necessary laws are passed to carry out the effect of the Constitution of the United States; it devolves upon the Judges of the Supreme Court, in their final judgment in all cases affecting the guaranteed rights of citizens to see to it that the spirit of the amendments is respected and carried out.”

Finally, he concluded with:

“You want unity and harmony.  So do I; so do all the Republicans in this land.  There is nothing we desire so much.  But we must have the Constitution of our land respected.  We must have the guarantees which it secures all citizens respected and we must have them enforced.”

Cadiz Republican, Oct. 8, 1885.  (The picture of Bingham is from 1893–I found it at the local historical society.)

Now this speech is very interesting but also very ambiguous.  You could read Bingham’s remarks either an an attack on the construction of the Amendment up to that point (“It’s not being enforced properly”) or as a statement of satisfaction with the status quo (“We can’t let Democrats mess up the excellent ongoing enforcement”).  Given Bingham’s views expressed in the 1860s and 1870s, the former reading seems more plausible, but we’ll see if I can find anything else that might support that assertion.

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My Visit to Cadiz

I just returned from a three-day visit to Cadiz, Ohio (population about 3,000), which was the hometown of John A. Bingham.  The folks at the historical society there were incredibly helpful and I can’t thank them enough.  I will do some posts over the next week discussing what I found there.  On the right is the bronze statute of Bingham that stands in front of the county courthouse.

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The End of the Beginning

Who knew that the caves in Pakistan were so luxurious?

In Hamdi v. Rumsfeld, the Supreme Court addressed the concern that authorizing the detention of alleged enemy combatants for the duration of the War on Terror might be tantamount to perpetual detention because the war would never end.  Here is what the Court said about that point:

“[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in the Clerk of Court’s case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the AUMF.”

I think this clearly means that Bin Laden’s death does not end the hostilities that support the ongoing detention of the detainees in Guantanamo.  But If the President carries out his plan to withdraw from Afghanistan this year (and what occurred yesterday increases the likelihood that will go ahead), then I think there would be a viable claim that the statutory authorization has expired.

1

John Bingham–Grass Roots Organizer

One frustrating thing about my research on John Bingham is that I have not found many new primary sources.  In other words, I’ve gone through all of the known materials and am trying to track down the missing ones (I’ll say more next week about what might be in them), but I have not located much that was unknown.  There is, however, one significant exception.

What follows is an excerpt of a letter from Bingham to Salmon P. Chase written in 1845, when Bingham was a private lawyer in Ohio.  I think that this letter has not been quoted until now:

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“I think I may safely vouch for Liberty men generally in this vicinity, that your views and suggestions are fully approved.  We try to be as active as possible, in efforts to advance the cause, though we labor under many discouragements.  The counties of Scioto, Lawrence, Jackson, Gallia, and Meigs, are collectively, perhaps as inveterately Proslavery, as the same number of contiguous counties any where else in the State.  If there be any portion of the Ohio field demanding a greater share of anti-slavery Labor than any other, it would seem that these central frontier counties embrace that portion, and yet . . . have been wholly neglected.  Not a single Lecturer, document, or even extra newspaper has ever, to my knowledge, been sent into either of these counties, or any other kind of labor bestowed under the State Society’s patronage.  We have felt entirely neglected, and not a little surprised that the Committee should have found time to . . . direct three copies of their circular to the Post Office at Pine Grove.  For myself, hoping against hope I almost felt like hailing the circumstance as the harbinger of better days.  . . . . [T]he sending of Lecturers and printed documents into any part of the field where Liberty men are too few, or too poor to pay the expense, . . . seems to me imperative.  No doubt an immense amount of good might be done here, just in this very neighborhood, by the single week’s labor of a good Speaker . . . Being 10 miles from Gallipolis, back from the river, just far enough from that miserable pro-slavery atmosphere to be able to take breath without the danger of suffocation, and by dint of effort, obtained an under-current in our favor if we can . . . make a demonstration here, the influence will be seen and felt throughout the five counties . . . I pray you if possible, send us a laborer for a short time this fall, one who has a missionary spirit, whose heart and soul is in the cause; who will be willing to address small meetings or large ones, who will go from neighborhood to neighborhood, from one appointment to another . . . until this half-dead community shall begin to wake up and show signs of life . . .

It is all a mistake, that nothing can be done . . . in the large, wealthy, and populous portions of the State.  There people are entirely too fashionable—and it is just as different to get them to lay aside fashionable politics, as the fashionable . . . coat, or frock, or pair of breeches.  In the country we [are] not so accustomed to ape the fashions of the great, and considerations founded on moral truth and patriotism have more easy access to the heart and conscience, and produce more corresponding action.”

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Bingham was 30 when he wrote this, and what’s striking to me is how similar it sounds to what any civil rights lawyer in any age might say.  Next week I’ll be in Cadiz (Bingham’s home for most of his life), and I’ll post from there if I find anything worthwhile in the local archives.

0

Voluntary Disenfranchisement

Congratulations to Kate Middleton, who will not be permitted to vote as of Friday (longstanding custom precludes the Royal Family from voting).

And you thought CoOp could not find a way to join the wedding hysteria.

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The Party Whip and a Free Vote

I am fond of using British constitutional practices and precedents to think about our Constitution.  And right now I’m working on a paper about “constitutional liability rules,” which argues that relationships between public institutions are often better structured as a highly-constrained choice rather than as a free choice or a mandate.

With that as context, I’ve been pondering the relevance of parliamentary practice for my research.  The norm for an MP in most countries is that he or she must vote with the party leadership.  This is not a requirement, but there are strong constraints (both informal and formal) on an MP who defies the party whip.  The most obvious one is that the party can refuse to renominate the member at the next election.  What MPs faces is exactly the kind of “constitutional liability rule” that I’m reviewing.

Sometimes, though, MPs are given a “free vote.”  When an issue is deemed constitutional in some sense or involves a matter of conscience, then the party leadership announces that members can do as they wish and will not face the usual arm-twisting.  This is more akin to “member sovereignty.”

This is the opposite of how things work in the United States.  In our constitutional system, free votes by bodies are norm, protected by separation of powers and federalism.  Highly-constrained choices are the exception, as I’ve discussed in some prior posts.  This is an interesting result, though I’m not entirely sure what it means.

UPDATE:  I should add that Matthew Stephenson wrote an excellent article in Yale three years ago about how courts often protect constitutional values by making certain legislative acts more costly without prohibiting them.  I’m more focused on how this sort of thing works from the point of view of Congress, the Presidency, and constitutional text.

3

Breaking a Vice-Presidential Deadlock in the Senate

One of the unusual features of the 1896 presidential campaign that I talk about in my new book is that William Jennings Bryan had two running mates at the same time.  The Democratic Convention nominated Arthur Sewell, a New York businessman who appealed to the conservative wing of the Party.  The Populists chose Thomas Watson, an agrarian radical from Georgia.  (Watson spent most of his time on the stump attacking Sewell instead of McKinley.)  This meant that if Bryan had won, no vice-presidental candidate would have received a majority in the Electoral College.  In that scenario, the Twelfth Amendment provides that the Senate must choose from between the top two candidates.  This meant that Bryan could have ended up with McKinley’s running mate, William Hobart, as his vice-president.

The only time that a presidential candidate won a majority of the electoral vote and his vice-president did not was in 1836, when Martin Van Buren’s running mate, Richard Johnson (depicted right) came up short.  Why did that happen?  It was because Johnson had two children with his slave, Julia Chinn, and treated her as his common-law wife until her death.  Virginia’s electors refused to vote for him as a result, but the Senate did approve him as VP.  But he was not renominated by the Democrats in 1840.  An interesting story that I had not heard about until recently.