Michael Rappaport on how Hayek's use of the Ninth and Fourteenth Amendments supports traditional rights - and originalism.
The seven articles and twenty-seven amendments to our national Constitution contain roughly 8,000 words. Of those, perhaps none have generated so much intense controversy as the fifty-two words placed inconspicuously in the second sentence of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In this sentence’s three prohibitions—the Privileges or Immunities, Due Process, and Equal Protection Clauses—jurists have found a variety of sharply disparate injunctions, concerning all manner of procedural, economic, and social regulation. Indeed, this diversity of interpretation has risen to direct adversity, involving mutually opposed requirements. Some argue, for instance, that the Amendment prohibits the states from implementing racial preferences, while others contend that the Amendment sometimes requires such preferences. Some conclude that the Amendment prevents the states from enforcing anti-abortion laws; others insist that the Amendment mandates such enforcement.
Indeed, there is little consensus as to even the original meaning of these clauses, despite, or because of, the many thousands of pages written on the subject. Perusing the massive scholarly literature, one finds not harmony, nor even intelligible dissonance, but a cacophony of clashing certitudes.
The source of this confusion, however, is perhaps not too much scholarship but too little. So many studies have relied almost exclusively on the readily-available but limited evidence found in the records of the Thirty-Ninth Congress. Some of this evidence has been parsed to death. Yet other evidence, such as the ratification debates and various writings of the Amendment’s drafters, has been largely overlooked.
Professor Gerard Magliocca’s new biography of John Bingham, American Founding Son, addresses this gap in the scholarship by providing the first extended treatment of the life and works of the principal drafter of the Amendment’s crucial first section. Magliocca traces Bingham’s life from his youth in eastern Ohio, a region heavily influenced by the same religious and political convictions that made New England so hostile to slavery and so favorable to the Republican Party. Magliocca shows how, throughout his life, Bingham would remain a strong Calvinist, an ardent foe of slavery, and a champion of African-Americans’ political equality. A congressman for all but two years between 1855 and 1873, Bingham would play a leading part in the great Republican victories of that era: when the Party, as celebrated in its 1872 platform, “suppressed a gigantic rebellion, emancipated four millions of slaves, decreed the equal citizenship of all, and established universal suffrage.”
The author’s research yields new insights into the legal and political history of Reconstruction. To cite a few important examples, Magliocca confirms and elaborates the connection between antebellum antislavery constitutional thought and the Fourteenth Amendment; Bingham’s close relationship with the veteran abolitionist Joshua Giddings is emphasized. Further, Magliocca explains the connection between Bingham’s support for the Amendment and his subsequent role as lead prosecutor in President Johnson’s impeachment trial: the President’s resistance to the Amendment’s ratification in the South had partly provoked the impeachment; and his promise to cease such resistance helped to secure (barely) his acquittal in the Senate.
Moreover, perhaps most notably, we learn that during the summer of 1871, two years before the Supreme Court’s decision in the Slaughter-House Cases, the author of that decision, Justice Samuel Miller, traveled extensively with Bingham and his wife, and that during the trip, “Bingham was almost daily expounding his views of the Amendment.” It is probable, then, that these conversations had some influence on Miller’s opinion for the Court in that case.
Magliocca presents this evidence in a fine narrative, an excellent example of an intellectual biography. It preserves a chronological presentation, without obscuring the primacy of the subject’s legal and political thoughts.
Still, the book will be a partial disappointment to readers hoping for new evidence as to Bingham’s understanding of the Fourteenth Amendment. Magliocca’s research has not uncovered any significant material that not already generally available; his discussion of Bingham’s views is generally limited to Bingham’s remarks as recorded in the Congressional Globe and a handful of newspaper articles. Bingham’s silence is frustrating to reader and author alike: “The most frustrating aspect of his biography is that, after he retired from Congress [in 1873], Bingham said virtually nothing about constitutional law.”
Despite the lack of new evidence, Magliocca ventures some bold conclusions as to Bingham’s constitutional reforms. First, Magliocca weighs in on the perennial debate as to the “incorporation” of what we today call the “Bill of Rights.” Bingham, he writes, was a total incorporationist. He “wanted the Bill of Rights, which he defined as the first eight constitutional amendments, to apply to the states,” and that these rights, and perhaps some other fundamental rights, were incorporated by the expression, “privileges and immunities of citizens of the United States.” Second, more broadly, Magliocca concludes that the drafting of the Amendment represented a “Second Constitutional Convention,” where Bingham and his colleagues “created” a “new multiracial republic,” involving changes “as profound as the ones launched” in 1787. Indeed, as the book’s indicates, the author considers Bingham a founder of a new polity.
Neither of these conclusions seems warranted by the evidence presented in the book. As to the first claim—total incorporation—the evidence remains ambiguous. During the 1866 congressional debates, Bingham did state that his proposed measure would secure, against state violation, the “immortal bill of rights [already] embodied in the Constitution.” Yet at that time, he seemed here to equate this “bill of rights” not with the first eight amendments, but with two discrete provisions: the Privileges and Immunities Clause of Article IV and the Due Process Clause of the Fifth Amendment.
We might wonder why Bingham might give such an exalted title, “immortal bill of rights,” to these two clauses. Perhaps the usage was not as “novel” as Magliocca suggests. The answer probably can be found in the Republican Platform of 1860, which featured both these clauses in separate planks. Both constitutional planks had been proposed by Ohio’s Joshua Giddings, who, Magliocca notes, was Bingham’s mentor and “closest professional confidant.” According to Giddings and many other Republicans (including Bingham no doubt), these two clauses vindicated two key principles of antislavery constitutionalism: the Due Process Clause provided some security to the human right to liberty by prohibiting the government from giving “legal existence” to slavery in the territories, while the Privileges and Immunities Clause entitled citizens, including antislavery citizens, to the broader freedoms of travel, residence, and opinion throughout the Union.
Consistent with this platform, Bingham intended to incorporate at least one First-Amendment right against the states. During the 1866 election campaign, he declared that after ratification of his proposal, the states would no longer be able “to take away the freedom of speech.” Still, elsewhere Bingham suggested that the incorporation of the First Amendment would be only partial. During the subsequent debates over the Fifteenth Amendment, Bingham plainly implied that the Amendment had not incorporated the Establishment Clause against the states. He tried to persuade Congress to protect the right to vote against not only racial discrimination, but also religious discrimination, for otherwise, the states would remain free to “set up a religious test.”
To be sure, Bingham would later emphatically identify all the rights of the first eight amendments as the privileges and immunities of U.S. citizenship. He said so expressly in a congressional speech in March 1871. But this identification rested on a problematic distinction between these privileges and the “privileges and immunities” guarantied in Article IV: the former the privileges arising under national law, the latter the peculiar privileges (whatever they may be) of the respective states. The problem was that Bingham had earlier rejected the distinction. He did so tacitly in 1866 when he said that Article IV secured the “privileges and immunities of citizens of the United States.” Indeed, as Magliocca notes, Bingham had expressly rejected the distinction as late as January 1871, when, as author of a committee report, he declared that the privileges secured by the Amendment did not “refer to privileges and immunities of citizens of the United States other than those embraced in [Article IV of] the original text of the Constitution.”
The evidence, then, suggests (but does not demonstrate) that Bingham changed his mind sometime in early 1871. In 1866, Bingham believed the “privileges and immunities of citizens of the United States” were identical with the privileges protected in Article IV; these privileges included the rights of travel, residence, opinion, and no doubt other fundamental rights, and thus overlapped with some of the fundamental rights set forth in the first eight amendments. By March 1871, however, Bingham drew a sharp distinction between Article IV and Fourteenth Amendment privileges; the latter category included all the rights set forth in first eight amendments, and only possibly some other important rights..
Perhaps, then, it was not unimportant that the following summer, Justice Miller would spend so much time discussing the Amendment with Bingham. Bingham’s new distinction between Article IV and Amendment XIV would figure prominently in Miller’s opinion for the Court two years later.
As to Magliocca’s second claim—the revolutionary character of the Amendment—the evidence that he presents is flatly contradictory. As far as Bingham was concerned, the Amendment served to renew and restore, and not overthrow, the Framers’ Constitution. While Magliocca concludes that Bingham and his colleagues “created” a “new multiracial Republic,” many Republicans, including Bingham, had always believed that the Republic was multiracial and had rejected Taney’s holding in Dred Scott in favor of the common law rule of birthright citizenship. For them, the Citizenship Clause was merely declaratory, corrective of erroneous interpretation.
As to the rest of section 1, Bingham repeatedly insisted that the Amendment was not revolutionary; it would not take away any rights from the states, but would merely provide new security for the old rights of citizens and persons. Magliocca candidly presents all the supporting evidence. Before the Civil War, Bingham indicated his belief that native-born free blacks and other bona-fide citizens were constitutionally entitled to certain fundamental rights throughout the Union. In 1866, he likewise declared that no state ever had any right “to withhold from any citizen of the United States…any of the privileges of a citizen of the United States.” Still, as he indicated in his vote against the Civil Rights Act, Congress lacked authority to enforce these fundamental rights. Thus for Bingham, at least, the prohibitions of Section 1, like the Citizenship Clause, were largely declaratory or clarificatory of existing constitutional law. Only Section 5, by granting a new power to Congress, represented a clear change to the Constitution’s meaning.
The Framers of the 1787 constitution, in contrast, openly acknowledged the revolutionary character of their act. Madison, as Publius, twice quoted the Declaration of Independence to justify the Conventions’ decision to propose a wholly new Constitution to be adopted by the concurrence of only nine states—in violation of both Congress’ express mandate and the solemn constitutional promise of the Articles of Confederation. Further, upon his inauguration as the nation’s President, the Convention’s President spoke openly of “the important revolution just accomplished in the system of [the people’s] United Government.”
Magliocca presents no evidence that Bingham ever spoke of the Fourteenth Amendment in this way, even privately. Thus, as Professor Allen Guelzo noted in his review of this biography, “it may be too much to nominate Bingham as the author of some brave new constitutional order.”
Instead, Magliocca interprets Bingham’s expressions of conservative intent as subterfuge. Bingham is said to have worked “some bait and switch”—a “clever tactic” designed “to make Section one more palatable by downplaying its breath,” as he “was doing his best to convince people that [his] proposal was modest.” Yet it seems highly unlikely that Bingham would resort to such tactics, as they were foreign to his principles and character, as sketched by Magliocca himself. Bingham repeatedly denounced all political lies. “The truth can wrong no man,” he declared, and celebrated “the truth that a lie cannot live forever, that it must die.” His eulogist, quoted with great approval by Magliocca, attributed to Bingham “the highest ideals consistent with truth, honor, justice, and liberty.”
Nonetheless, even if the reader disagrees with some of Professor Magliocca’s conclusions, or is disappointed in the lack of new evidence as to the meaning of the Fourteenth Amendment, this biography represents a significant advance in American constitutional history. It is a welcome, necessary, and long-overdue contribution to scholarship.