John Bingham's Epiphany

The second part of Lawprof Kurt T. Lash's "three-part investigation of the origins of the Privileges or Immunities Clause" is out at SSRN: The Origins of the Privileges or Immunities Clause, Part II: John Bingham's Epiphany. I haven't read it yet, but here's the abstract:

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.

This article, the second in a three-part investigation of the origins of the Privileges or Immunities Clause, presents historical evidence which strongly suggests that none of these assumptions are correct. Although John Bingham’s first draft of the Fourteenth Amendment used the language of Article IV, mid-way through the Reconstruction debates Bingham realized he had made a mistake. Withdrawing his initial proposal, Bingham abandoned the language of Article IV and drafted a second version of the Amendment. This second version protected the “privileges or immunities of citizens of the United States” — a phrase which mirrored antebellum language regarding the rights of national citizenship. Bingham insisted that his second and final version of Section One did not refer to the common law state-conferred rights of Corfield and Article IV, but instead nationalized a different and limited set of constitutionally recognized privileges and immunities, in particular the first eight amendments to the Constitution. Understanding the difference between Bingham’s first and second drafts not only explains what otherwise appear to be inconsistencies in Bingham’s speeches, it also calls into question contemporary efforts to read the Privileges or Immunities Clause as a source of un-enumerated natural rights. Like other moderates in the Thirty-Ninth Congress, Bingham wished to expand the protection of individual rights in the states, but not at the expense of the retained right of the people in the states to regulate the content of most civil rights, subject only to the requirements of due process and equal protection.

The first secion of Prof. Lash's study, which was published on SSRN last year, is The Origins of the Privileges or Immunities Clause, Part I: "Privileges and Immunities" as an Antebellum Term of Art.

UPDATE: Prof. Lash has published a post on his article at PrawfsBlawg: Alternative Interpretations of the Privileges or Immunities Clause - and desperately seeking John Bingham.

History in the Making

The big news in the legal world today is that the Supremes have granted cert in a case called McDonald v. City of Chicago. The issue? Whether the Second Amendment right to bear arms applies against the states (and their political subdivisions):

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

The reference to the Privileges or Immunities Clause is fascinating.

Dave Kopel at Volokh recommends a number of articles for background reading here.

Based on the explosion of scholarly articles we got in advance of Heller, I am hopeful that we will be beneficiaries of a like outpouring between now and next June, when McDonald will likely be decided. This time, the articles will focus on Reconstruction and the Reconstruction Congress. John A. Bingham may become the most famous man in America!

Kurt Lash, hurry up with the second part of your article on the Privileges or Immunities Clause!

Kurt Lash on the Privileges or Immunities Clause

A new paper by Kurt Lash is always a treat. I haven't read it yet, but Prof. Lash has turned from the Ninth, Tenth and Eleventh Amendments to the Fourteenth Amendment: The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art. Here's the abstract:

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice [Bushrod] Washington’s opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV. According to this view, Justice [Samuel Freeman] Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.

A close analysis of antebellum law, however, suggests that Justice Miller’s approach was faithful to long-standing legal doctrines regarding the meaning of Article IV and a distinct category of rights known as the “privileges and immunities of citizens of the United States.” As of Reconstruction, Article IV’s protection of “privileges and immunities of citizens in the several states” was broadly understood as providing sojourning citizens equal access to a limited set of state-conferred rights. The “privileges and immunities of citizens of the United States,” on the other hand, was an accepted term of art which referred to those rights conferred upon United States citizens by the Constitution itself. Even as the country came apart over the issue of slavery, slave-state advocates and the proponents of abolition both expressly maintained the distinction between Article IV and national privileges and immunities. In the Thirty-Ninth Congress, John Bingham, the drafter of Section One, insisted that this distinction informed the meaning of the final draft of the Fourteenth Amendment. According to Bingham, the Privileges or Immunities Clause protected “other and different privileges and immunities” than those protected by Article IV. Understanding the roots of this distinction in antebellum law helps illuminate Bingham’s explanation of Section One, and the likely reception of the Privileges or Immunities Clause by the public at large.

Addendum:

Prof. Lawrence Solum comments:

This important new paper by Lash should cause quite a stir. Lash located the origins of the phrase "privileges or immunities of citizens of the United States" in pre-civil-war sources such as the Louisiana Cession Act of 1803 and provides strong evidence that this phrase was a term of art with a meaning that was quite separate and distinct from the meaning of the privileges and immunities clause of Article IV, which itself had a more complex interpretive history than the recent emphasis of Corfield v. Coryell would suggest. This is an important article, and essential reading for anyone interested in the 14th Amendment or fundamental rights jurisprudence. Highly recommended. Download it while its hot.

Two Articles

These two articles look interesting:

Seth Barrett Tillman, The Puzzle of Hamilton's Federalist No. 77: It Turns out that Hamilton was Right After All:

The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. There is nothing new about that insight. But one alleged error has always struck me as somewhat different from other alleged errors. I am speaking of Hamilton's 1788 publication: The Federalist No. 77. There he wrote:

IT HAS BEEN MENTIONED as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

This is the enigmatic great white whale among Founding-era documents.

Partisans of Senate (or congressional power) agree with Hamilton (or, at least, they think they agree with Hamilton). These commentators look back to the Tenure in Office Act and to any number of statements made on the floor of the House when statutory removal was first debated in 1789 -- all purportedly consistent with Hamilton's statement here. Partisans of presidential power disagree with Hamilton (or, at least, they think they do). They affirm that Hamilton erred. These commentators look to Myers v. United States and to statements made by Madison on the floor of the House during the statutory removal debates. The consensus view, nay - the universal view, is that Hamilton was speaking to the issue of the "removal" of federal officers.

However, this understanding of The Federalist No. 77, the standard view, the view that Hamilton was speaking to "removal," creates as many problems as it might resolve. And this is true without regard to whether or not you think Hamilton correct or erred. First, the standard view is puzzlingly inconsistent with everything we know about Hamilton, the premier Founding-era spokesman for energy and unity in the Executive. How is it that he would concede a role for the Senate in regard to the removal of federal officers, if a contrary view were even remotely tenable? Second, Hamilton's opining on the scope of the removal power is inconsistent with his plan for and the purpose of The Federalist. His plan for The Federalist was to discuss the defects of the then-current regime, the government under the Articles, the need for a more energetic government, and finally, to provide an article-by-article, clause-by-clause defense of the newly proposed Constitution of 1787 as consistent with the principles of Republican government, liberty, and property. Removal is simply not expressly addressed in the Constitution. To bring up "removal" is just bad tactics - why open up that can of worms, particularly where one's conclusion lacks direct textual support or any closely reasoned argument. Was Hamilton really such a poorly skilled tactician and propagandist? There is a third problem with the standard view .... This problem is not historical, but textual. If you read Hamilton's statement, you will notice that he does not actually use the word "removal" or any variant on "removal." Rather, he uses the word "displace." And that is the key to this ancient intellectual puzzle. Hamilton was not speaking to the power of removing federal officers, rather he was speaking to who had authority to displace federal officers. The two words are akin, but they are not at all times and for all purposes the same.

Lawrence B. Solum, Incorporation and Originalist Theory:

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that "original meaning" is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase "privileges or immunities" was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the "privileges or immunities clause" instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

The Fourteenth Amendment and Incorporation XIII: A New Article

I have previously published a number of posts here discussing the background of the Privileges or Immunities Clause of Section 1 of the Fourteenth Amendment, analyzing portions of the speeches and debates in the 39th Congress concerning the Amendment, and arguing that the Clause was clearly intended to apply the Bill of Rights against the states. You are invited to look under the tags "Fourteenth Amendment" and Incorporation" to find those earlier entries.

I am pleased to see a new article that reaffirms this conclusion. Bryan H. Wildenthal of the Thomas Jefferson School of Law has released on SSRN a working draft of an article entitled "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67." The full article is available via SSRN. Here is the abstract:

For many years, the reigning view among scholars was that the Fourteenth Amendment was never understood (except by a few “eccentric” or “confused” figures) to “incorporate” or nationalize the entire Bill of Rights so as to apply it to the states. This modern conventional view was developed primarily by Charles Fairman and Stanley Morrison in 1949, and defended by Raoul Berger from 1977 to 1997. A revisionist, pro-incorporation view was expressed by Justice Hugo Black (and three colleagues) in Adamson v. California (1947), echoing the late-19th century view of the elder Justice John Marshall Harlan, and defended by William Crosskey in the 1950s and Alfred Avins in the 1960s (among others). Michael Curtis, starting in 1980, led a renewed wave of revisionist scholarship, joined by Akhil Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook (among others) in the 1990s.

Few scholars would dispute that the modern conventional account has been severely challenged. Many have been persuaded that Black (and the “eccentric” Justice Harlan the elder) were right all along. But some still reject or question the legitimacy of the “incorporation doctrine.” Hence the purpose of this article. It demonstrates the truly shocking and inexcusable extent to which Fairman, Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. Fairman's 1949 article, in particular, has been viewed as a “classic” for more than half a century. It is one of the most-cited law review articles of all time.

Surprisingly, my research has shown that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. I have found relevant original source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67 that suggests the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period.

This article, following up on two articles I published in 2000, is part of a broader project that will include several forthcoming articles, to be eventually combined into a book.

The Fourteenth Amendment and Incorporation XII: Robert Safford Hale

OK, let’s discuss an opponent of the Fourteenth Amendment – or at least the version of the amendment as it existed in late February 1866. One of the principal opponents of that early version in the House was Robert Safford Hale (R. – NY). Hale hailed (sorry, I can’t help myself!) originally from Vermont (born 1822). He moved to Elizabethtown, New York (near Lake Champlain), opened a legal practice there in 1847 and later became a judge. The 39th Congress was his first term in Congress. He was one of the most conservative Republicans in the House.

Hale spoke against Bingham’s proposed amendment as it then stood on February 27, 1866. Rep. Hale’s remarks concerning the amendment as then proposed focused on the “equal protection” language, not on the “privileges and immunities” language, which I have bracketed for sake of clarity:

“The Congress shall have power to make all laws which shall be necessary and proper to secure [to the citizens of each State all privileges and immunities of citizens in the several States, and] to all persons in the several States equal protection in the rights of life, liberty and property.”

Rep. Hale construed this language as “a grant [to Congress] of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.” Granting Congress such power, he argued, would turn the Constitution on its head. Rather than being limited to specific, enumerated powers, Congress would be granted sweeping powers to legislate on almost every subject.

In the course of his speech, Rep. Hale turned to the Bill of Rights. His explanation of his understanding of the Bill demonstrates that Rep. Hale believed that the Bill of Rights was already binding on and enforceable against the States in court. He had no problem with that idea. He objected only to granting Congress the power to enforce the Bill of Rights through general legislation.

Rep. Hale began by setting forth his understanding of the Bill of Rights. It protected citizens by limiting Federal and State powers. What the Bill did not do was grant Congress power to enact legislation to enforce its provisions:

“Now, what are these amendments to the Constitution, numbered one to ten . . .. What is the nature and object of these articles? They do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power. They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation. They are not matters upon which legislation can be based.”

That did not mean, however, that the Bill of Rights conveyed rights without remedy. “Throughout they provide safeguards to be enforced by the courts, and not to be exercised by the Legislature.”

Rep. Hale obviously was unaware of Barron v. Baltimore. Rep. Bingham, who was aware of that case, jumped up and rudely challenged this assertion:

“I ask him [Mr. Hale] now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindication of a right or the redress of a wrong? I want an answer.”

In response, Rep. Hale admitted that he did not know of such a case. He simply assumed that the Constitution somehow protected the liberties of citizens. I quote the response in full because it is so striking:

“The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his questions with a warning.

“I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression.”

After another Representative joined in to ask Rep. Bingham whether he was aware of such a case, Bingham said that was “ready to answer the gentleman now, and to produce such a decision” – almost certainly Barron and Livingston v. Moore, the cases that he cited and quoted from the next day (see my post immediately below). Hale, however, objected that this was a “side issue” and stated that he preferred to continue with his speech.

Shortly thereafter, Hale nonetheless returned to the issue of court enforcement of the Bill of Rights. Yet again, he made clear that he understood that the Bill applied to the States and was enforceable against the States in court:

“If he [Rep. Bingham] claims that those provisions of the constitution or the laws of Oregon [to which Bingham had referred] are inconsistent with the bill of rights contained in the Constitution of the United States, then I answer that his remedy is perfect and ample, and the courts may be appealed to vindicate the rights of the citizens, both under civil and criminal procedure. Their powers are ample; it never was questioned, it never could be questioned, that the decrees of the courts, in all the States at least where slavery did not exist, have been thoroughly and sufficiently enforced.”

In short, even the most conservative Republican, one who clearly believed in a federal government of limited powers, believed that the Bill of Rights was binding on the States and thought that it was perfectly natural to assume that citizens could vindicate those rights in court.

No wonder, then, that the speeches of Rep. Bingham and Senator Howard explaining the Privileges or Immunities Clause elicited few if any objections. So far as I'm aware, no Republican – including Rep. Hale -- stated during the debates that he believed that the Bill of Rights did not and should not apply to and restrict the States. (As I’ve noted before, Radicals complained that the amendment did not go even further and grant political rights, particularly the right to vote, as well as civil rights.) Rep. Hale and a handful of other Republican legislators objected only to granting Congress sweeping enforcement powers.

The final version of the amendment passed by the House (and Senate) in June 1866 may have alleviated some or all of Rep. Hale’s concerns. The enforcement provision of the final version was placed in a separate Section 5. Although it affirmed the enforcement power of Congress, it did not contain the language that Rep. Hale found most offensive. It stated simply: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Perhaps also, Rep. Bingham’s quotations from Barron and Livingston v. Moore and the need to overrule Dred Scott ultimately convinced Rep. Hale that the amendment was essential to "vindicate the rights of the citizens." For whatever reason, Hale voted for the final version of the amendment.

All quotes are from The Congressional Globe, 39th Congress, First Session, pp. 1063-65 (Feb. 27, 1866). All emphasis within the quotes is mine. Easy access to the Globe for the 39th Congress may be found here.

The Fourteenth Amendment and Incorporation XI: John A. Bingham

My last post inspired me to return to my discussion of the Fourteenth Amendment and Incorporation.

John A. Bingham (R. – Ohio) was a member of the Joint Committee on Reconstruction and the principal author of the Amendment. By contemporary Republican standards, he was no radical. Several modern scholars have ranked him as moderate or mildly conservative in relation to his Republican colleagues. He gave several speeches. To keep this post manageable, I will focus here on one of them, given on February 28, 1866.

At that point, Section 1 of the proposed Amendment had not reached its final form. As of February 28, 1866, it read as follows:

“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.”

In his speech of February 28, Rep. Bingham made clear that he regarded the amendment as giving Congress the power to enforce the Bill of Rights against the States. After a brief introduction, he squarely stated the issue as follows:

“The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”

He then turned to the question why the amendment was even necessary. Republicans almost universally believed that the Bill of Rights already applied to the States, and that Congress naturally had the power to enforce it. Unlike his less sophisticated colleagues, however, Bingham was aware of Barron v. Baltimore and its progeny. He pointed directly to Barron and another Supreme Court case, which had held that provisions of the Bill of Rights (the Fifth Amendment and the Seventh Amendment) were not binding on the States:

“A gentleman on the other side interrupted me [in debate recently] and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.

“Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

“’The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.

“’If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.’

“I read one further decision on this subject – the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:

“’As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.’”

Invoking the ghost of Daniel Webster, Bingham then explained that he believed the Supreme Court was wrong, but only in part. Alluding to the Supremacy Clause and the Oaths Clause (Article VI, Clause III, which requires that all State officials “shall be bound by Oath or Affirmation, to support this Constitution”), Bingham explained that, in his view, the Constitution bound the States just as it bound the Federal government. The problem, Bingham believed, was that the Constitution contained no effective enforcement mechanism that penalized State officials for violating their oaths. There was a “right”, but no “remedy,” making the Bill of Rights “a mere dead letter.” The purpose of the amendment was to supply that enforcement mechanism.

[Aside: We have seen this “right but no remedy” argument, in a different context, before. Before the War, Salmon Chase and others had argued, in effect, that the Fugitive Slave Clause conveyed a right on the slave states, but that they had no remedy if free states refused to turn over fugitive slaves.]

“Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment. By the decisions read, the people are without remedy. It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government.”

[I would add here that Bingham’s understanding of the Constitution was almost certainly wrong as a historical matter. Neither the Supremacy Clause nor the Oaths Clause bound State legislators to pass State laws that did not violate the Bill of Rights (or any other requirements of the Constitution that did not expressly apply to the States). That, however, is irrelevant. Bingham’s understanding, or misunderstanding, was a common one; indeed it represented the mainstream Republican view.]

Bingham then continued as follows, in a passage that emphasized that the proposed amendment supplied no new rights (because the Bill of Rights, properly construed, already applied to the States), but rather an enforcement mechanism for those rights (emphasis added):

“Those oaths have been disregarded; those requirements of our Constitution have been broken; they are disregarded to-day in Oregon [more about Oregon in another post]; they are disregarded to-day, and have been disregarded for the past five, ten, or twenty years in every one of the eleven States recently in insurrection.

“The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for their violation of their oaths and of the rights of their fellow-men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.

* * *

“Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life, liberty and property?”

A few minutes later, Bingham was even more explicit as to what his understanding of the Constitution was. In the process, he made clear that he equated “the privileges and immunities of citizens” with “these provisions of the bill of rights.” Specifically citing the Supremacy Clause and the Oaths Clause, Bingham explained that the Framers had placed an obligation in the Constitution – the obligation of State officials to honor the Constitution. They had even placed in the Constitution an enforcement mechanism of sorts – the final portion of the Supremacy Clause, which provided that “the Judges in every State shall be bound thereby [i.e., by the Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What the Framers had failed to do was provide an effective enforcement mechanism, namely power in the Congress to enforce those obligations and rights. The purpose of the proposed amendment was to supply Congress with that power:

“With these provisions in the Constitution for the enforcement in every State of its requirements, is it surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person – those rights dear to freemen and formidable only to tyrants – of which the fathers of the Republic spoke, after God had given them the victory, in that memorable address in which they declared, ‘Let it be remembered that the rights for which America has contended were the rights of human nature?’ Is it surprising that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred right of person, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction?

“What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”

The New York Times reported a summary of Bingham's February 28, 1866 speech and specifically noted Bingham's belief regarding the purpose of the proposed Amendment. "This was simply a proposition to arm the Congress of the United States ... with power to enforce the Bill of Rights as it stood in the Constitution." N.Y. Times, Mar. 1, 1866, at 5.

Later in 1866, while the Fourteenth Amendment was awaiting ratification by the States, Bingham had his speech published as a separate pamphlet. In the title, the pamphlet specifically described the proposed amendment as one “to Enforce the Bill of Rights.” (The full title is, John A. Bingham, One Country, One Constitution, and one People, Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, Feb. 28, 1866, in Support of the Proposed Amendment to Enforce the Bill of Rights (Washington, Printed at the Congressional globe [sic] office, 1866)).

Salmon Chase and The Fugitive Slave Clause

I don't know whether Abram Smith, Sherman Booth or Byron Paine ever met Salmon Portland Chase, but they had clearly absorbed Chase's arguments about the constitutionality of the Fugitive Slave Acts. You will recall that one of Associate Justice Smith's principal arguments was that the Fugitive Slave Clause did not delegate any power to Congress. The Clause was simply a compact between the States, unenforceable by Congress.

Well, this was exactly the argument that Chase had been making and popularizing since the late 1830s, as part of his thesis that the founders loathed slavery and provided in the Constitution that the federal government should have nothing to do with it:

"Chase . . . tried to interpret the [fugitive slave] clause almost out of existence. The section . . ., Chase pointed out, differed from other clauses in neglecting to delegate to Congress power to enforce it by appropriate legislation. Since all powers not delegated to the federal government were reserved to the states, Chase insisted that the clause was really a compact between the northern and southern states, and that 'each State must judge for itself as to the character of the compact, and the extent of the obligation created by it.' The laws of 1793 and 1850 involving the federal government in the capture of fugitives were unconstitutional, since Congress had no power on the subject."

Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (Oxford Univ. Press 2d Ed. 1995) at 77.

Sound familiar?

This helps us understand, by the way, why many members of the Reconstruction Congress believed that it had the power to enforce the Thirteenth Amendment via civil rights legislation, even though that amendment contained no provision specifically delegating power to Congress to do so. It also helps explain why many members of the Reconstruction Congress believed that Section 1 of the Fourteenth Amendment was unnecessary. In Prigg v. Pennsylvania (1842), the Supremes had held -- contrary to Chase's arguments, that the Fugitive Slave Act of 1793 was constitutional: the Fugitive Slave Clause necessarily gave Congress, by implication, the power to enforce it. Members of the Reconstruction Congress reasoned or assumed that the Thirteenth Amendment similarly carried the necessary implication that Congress had the power it enforce it.

It was John Bingham of Ohio who drove his colleagues to include Section 1 in the Fourteenth Amendment because he was one of the few who understood that the implication of Barron v. Baltimore was that Congress did not have the power to enforce the provisions of the Bill of Rights against the States.