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Tuesday, March 16, 2010

The Father of the Fourteenth Amendment—and Why He's Almost Entirely Unknown

Every well-educated high school student in the United States has heard of James Madison, often because their school is named after Mr. Madison.  If pressed, a few of them might even be able to explain why Madison is an important figure in our country’s history—the so-called “father of the Constitution,” Madison helped shape the original Constitution and he drafted the original Bill of Rights. 

In terms of individual rights, however, the Fourteenth Amendment arguably is even more important than the original Constitution and the Bill of Rights.  The vast majority of cases decided by state and federal courts which involve claims of individual freedom are directed at state government officials.  If anything, judicial protection of rights under the Fourteenth Amendment has had a feedback effect on judicial construction of rights under the original Bill of Rights.  Thus, if anyone can claim the title of “father of American constitutional rights” it is not James Madison, but John Bingham—the man who drafted Section One of the Fourteenth Amendment.  Despite Bingham’s importance to modern constitutional freedom, however, most Americans have never heard of him.  There are no John Bingham High Schools.

Even among constitutional scholars, Bingham remains a controversial figure.  Some of the most influential constitutional scholars of the twentieth (and twenty-first) century have dismissed Bingham as a “gasbag,” a “windbag,” and a “confused,” “befuddled” and “muddled” thinker.  Although  Bingham has his defenders, his odd and occasionally conflicting statements about the Fourteenth Amendment have made him seem less than a stellar spokesperson for what is arguably one of the most important provisions in the United States Constitution—even though he drafted the clause.  


In a recent paper, I defend John Bingham as both a principled constitutionalist and key figure in the adoption and public understanding of the Fourteenth Amendment.  However, before celebrating the man, one simply has to acknowledge that his initial statements about the first draft of the Fourteenth Amendment were, from a modern perspective, exceedingly odd.  To begin with, Bingham based his initial draft of Section One on the language of Article Four.  Here is Bingham’s first draft of what became Section One of the Fourteenth Amendment:


The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all the privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment”) [parenthesis in Cong. Globe].


This was not an attempt, however, to simply enforce the equal protection provisions of Article IV.  Bingham’s goal was to force the states to protect the rights listed in the first eight amendments to the Constitution.  Although Article IV spoke of privileges of citizens in the several states, Bingham believed the text should be read as if contained the additional words “of the United States,” as in “ . . . all the privileges and immunities of citizens [of the United States] in the several states.”  This reading allowed Bingham to maintain that the clause protected privileges and immunities which citizens held by reason of their federal citizenship—in particular rights enumerated in the Constitution such as those listed in the first eight amendments.


For years, scholars have struggled to understand Bingham’s “ellipsis” reading of Article IV.  Critics use it to bash the odd and “muddled” thinking of John Bingham.  Scholars who wish to rely on Bingham’s statements regarding the Bill of Rights tend to downplay or ignore altogether Bingham’s initial “ellipsis” reading of Article IV.  The end result is a critical mass of scholarship that takes either a critical or embarrassed approach to the full record of public statements by the man who gave us Section One of the Fourteenth Amendment.  This is not the stuff of which high school dedications are made.

I believe, however, that both critics and advocates of John Bingham and his views of Section One have been, at most, only half correct.  Bingham did initially have an odd and idiosyncratic view of Article IV.  However, when confronted with his error, Bingham realized his mistake and withdrew his initial proposal.  His second draft abandoned the language of Article IV and instead expressly protected the privileges or immunities of citizens of the United States.  In future posts, I’ll explain why Bingham made the change and why he truly deserves to be known as the father of American individual liberty.

Posted by Kurt Lash on March 16, 2010 at 04:58 PM | Permalink


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How did Madison draft Article IV, section 2 of the Constitution? That language was a shortened version of Article IV of the Articles of Confederation, and Madison, to my knowledge, played no role in the drafting of the Articles: he did not even enter the Continental Congress until 1779, two years after the Articles were sent to the states for ratification

But if all Madison had to his credit was our miserably written Constitution -- with its confusing use of the passive voice in the Bill of Rights, its failure to specify who had the power to remove executive officials, its wacky "general welfare" clause which almost swallowed the enumeration of powers in Article I, section 8, etc, etc, then his reputation as a writer and thinker would be deservedly dim indeed. Fortunately for his reputation, Madison lost on the most important battles about the Constitution's text, such as the Counsel of Revision, his state-restricting version of the First Amendment, and the composition of the Senate. So he cannot be blamed for our dismally written and ill-constructed organic document from which we still suffer today. (One state, two senators?! Good grief: No wonder 10% of the population can hold us all hostage to their agrarian fantasies). Far from being the father of the Constitution, Madison was (to his credit) the Constitution's estranged spouse.

As for the Fourteenth Amendment's being "the source of judicial protection of some of our most cherished rights for over a century," I guess that I am too much of a realist to take that claim of the power of constitutional text too seriously. Do you really think that SCOTUS' opinions creating these rights would be very different had section 1 been worded differently?

In any case, I'd say that Bingham's version of the 14th Amendment actually delayed the protection of civil rights: Bingham's version replaced the more specific version offered by Robert Dale Owen, Jr., which would have explicitly prohibited discrimination "in the civil rights of persons, because of race, color, or previous condition of servitude." A more specific prohibition on racial discrimination would have prevented corporations from taking advantage of the amendment's language, and it would have made it more difficult for the SCOTUS to endorse "separate but equal" state laws in Plessy, Cummings, and Pace v. Alabama. Thus did the grandiosely vague language of the amendment impede the civil rights of unions and wage earners (in Lochner, etc) while facilitating racial discrimination for a half-century or so.

Posted by: Rick Hills | Mar 19, 2010 7:16:01 PM

Prof. Lash asks in his comment:

"What, exactly, is more vague about Section One of the Fourteenth Amendment than the Privileges and Immunities Clause of Article IV and the Due Process Clause of the Fifth Amendment (both of which Madison helped draft)?"

Does this question suggest that the P/I Clause of Article IV and the Due Process Clause of the Fifth Amendment are or are not vague, in comparison to Section One of the Fourteenth Amendment? Or are the public meanings/understandings of these provision clear?

Posted by: Shag from Brookline | Mar 19, 2010 7:10:39 AM

I'm pretty sure that the so-called tedious blather of John Bingham is on the walls of thousand of classrooms throughout the United States, and in many places around the world. Not too shabby for such a mediocre talent. As for his egregiously vague prose, it has been the source of judicial protection of some of our most cherished rights for over a century. Whatever his flaws, and however brighter the flame of James Madison, don't you think his accomplishments place him a bit higher than, say, Millard Fillmore?

I am curious, though. What, exactly, is more vague about Section One of the Fourteenth Amendment than the Privileges and Immunities Clause of Article IV and the Due Process Clause of the Fifth Amendment (both of which Madison helped draft)?

Posted by: Kurt Lash | Mar 18, 2010 11:24:48 AM

Bingham will never rival Madison in terms of either name recognition or originalist authority for the simple reason that Madison could write and Bingham couldn't. Bingham was an Ohio politico who, aside from his role in drafting the egregiously vague section 1 of the 14th Amendment, was a mediocrity whose talents deservedly relegated him to the footnotes of history. Madison, by contrast, was a brilliant writer and learned thinker who left us a legacy of essays on everything from coinage and foreign policy to republicanism and justified revolution. History is not kind to mediocre writers: The Madisons and Lincolns tend to crowd out the Pinckneys and Binghams, regardless of the central role that the latter might have played in historical events, because no one wants to read the tedious blather of the latter.

This is not fair or just or even legally correct, but there you have it: Good, intelligent writing just has staying power. In W.H. Auden's words...

Time that is intolerant
Of the brave and innocent,
And indifferent in a week
To a beautiful physique,
Worships language and forgives
Everyone by whom it lives;
Pardons cowardice, conceit,
Lays its honours at their feet. . .
Time that with this strange excuse
Pardoned Kipling and his views,
And will pardon Paul Claudel,
Pardons them for writing well.

Posted by: Rick Hills | Mar 18, 2010 9:57:55 AM

As I read Prof. Lash's Part II, and as I read other articles that directly or indirectly touch on originalism, I remind myself of Paul Brest's law review article on original intent, the early version of originalism. Yes, intent of framers is some evidence to consider in constitutional interpretation and as historical background. But originalism has advanced (is that the right word?) to public understanding at the time of ratification. But there may be subjectivity in ascertaining that public understanding over time. We all have biases that preferably we should overcome in reviewing the evidence from which such public understanding of the increasing distant past is to be determined. Most likely in many instances there will not be universality regarding such public understanding. I'm talking here about constitutional law and/or history scholars. But then we should consider how the current public relates to originalism. In this regard, Jamal Greene, Stephen Ansolabeher and Nathaniel Persily have recently offered "Profiling Originalism" available via SSRN at:


The abstract includes this: "This Article presents the first empirical study of public attitudes towards originalism." To what extent are such public attitudes influenced by the views expressed by constitutional law and/or history scholars? The Article does not address this but perhaps future articles on public attitudes towards originalism will.

Posted by: Shag from Brookline | Mar 18, 2010 8:01:49 AM

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