Madison, Bingham and the Crapshoot of History

There was a lecture at the McKinney School of Law yesterday about Jonathan Bingham, the most important constitutional figure you’ve probably never heard of. One of the professors has just written a biography of him–“American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”

I came across Bingham and the role he played in U.S. history a number of years ago, when I was researching a book of my own. He was a Republican Congressman from Ohio, a fervent believer in racial equality, who wrote the first and most famous passage of the 14th Amendment–the one forbidding states to deny “the privileges and immunities of citizenship” to their citizens, and requiring that they extend to those citizens the guarantees of due process and equal protection of the laws.

It was clear even from the brief research I did then that Bingham’s intent was to finish what Madison had tried but been unable to do–apply the entire Bill of Rights to state and local governments. (Originally, the Bill of Rights only restrained the federal government.) In the aftermath of the Civil War, he was able to get it done.

Or so he thought.

The Supreme Court declined to interpret the 14th Amendment as requiring complete and immediate”incorporation,” the weird term used by lawyers that means applying the Bill of Rights’ restrictions against government at all levels. The Court opted for “selective” incorporation–and only over a period of many years, as cases came before it, used the Amendment as a vehicle to ensure that ┬álocal government units respect the “fundamental liberties” protected by the Bill of Rights.

What too few Americans appreciate is the importance of the 14th Amendment to our current Constitutional system. Yale Constitutional scholar Akil Amar has called the post-civil rights period and the changes wrought by the 14th Amendment a second founding, and it does seem odd that even Americans who are quite familiar with the roles played by Jefferson, Madison, Franklin, Hamilton et al have never heard of Bingham, nor been taught about the profound effect of his Amendment.

Just goes to show, I guess. HIstory’s a crapshoot.

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