Saturday, April 4, 2009

Finkelman on John Bingham and the Background to the 14th Amendment

Paul Finkelman, Albany Law School, has posted an article, John Bingham and the Background to the Fourteenth Amendment. It appeared in the Akron Law Review (2003). Here's how it begins:

Legal scholars have long debated the "original intent" of the Fourteenth Amendment, especially Section one, which has been the driving engine of the national expansion of civil rights and civil liberties for the past half century or more. 1 Lawyers comb the records of the Thirty-ninth Congress, certain they will find some Rosetta stone that will explain such terms as "privileges or immunities of citizens of the United States," "due process of law" or "equal protection of the laws."

While exploring the records of Congress can be useful, the debates in Congress do not tell the whole story of the origin and meaning of the Fourteenth Amendment. These debates may not even tell the most important story. Two other stories may be a better guide to what the members of Congress, and especially John Bingham, the primary author of Section one of the Fourteenth Amendment, had in mind when they wrote the Amendment. An understanding of the Fourteenth Amendment begins not in Congress, but in the history leading up to the Civil War. The first crucial story in understanding the Fourteenth Amendment is the striking changes in the law of race relations that took place in the North - especially in Bingham's home state of Ohio - in the dozen or so years before the Civil War began. The second story is about the South, and the legal repression and brutal racial violence that took place there immediately after the Civil War ended.

These two stories compliment each other. The first gives insight into the legal and political history that shaped Bingham's thoughts about race and his aspirations for a racially just society. The second helps understand what Bingham was struggling against in drafting Section one of the Fourteenth Amendment, and thus illuminates what he hoped the Amendment would accomplish.
John Bingham.