Was John Bingham Right about the Fourteenth??
laycockd at umich.edu
Thu Feb 1 11:07:04 PST 2007
Fairman is always cited con, but my recollection is that he
rejected only total incorporation of all eight amendments. His
position was that only fundamental rights were incorporated, not the
entire Bill of Rights. He didn't fully spell out what he thought was
fundamental and what he didnt', but he seemed to think that most of
the First Amendment was incorporated.
Quoting michael curtis <curtism at bellsouth.net>:
> To the list of works suggested with Earl Maltz's addition, I would
> add Crosskey (pro) and Fairman (con), Dick Aynes, and James Bond
> a recent skeptic. Raoul Berger's Govt by Judiciary has a negative
> chapter--but a number of the asserted facts are mistaken---just
> simply factually wrong.
> At the risk of stating the obvious, Bingham thought that the
> privileges or immunities of the 14th were "chiefly" in the first 8
> amendments. There are certainly strong reasons to see the rights
> the Bill of Rights as privileges and immunities.
> 1. Historical linguistics--there was a long and rich trandtions of
> using the words "privileges" and " immunities" to describe the
> rights in the Bill of Rights or liberties of that sort. I think
> probably the most detailed collection of examples running from the
> colonial era through FDR--is in 78 NC L. Rev. 1071-1151. Almost
> all--up to 1138 giving lots of examples from before the Revolution
> to up to and about contemporaneously with the 14th A. Examples are
> also in No State Shall Abridge and (more than there) in Amar, The
> Bill of Rights
> 2. You see congressmen in the 39th congress--in addition to
> and Howard-- using the words in this way. And describing Bill of
> Rights liberties as rights of American citizens rather than just as
> limit on the federal government instead of a right (as in Cruickshank).
> 3. Bingham and Howard both say the 14th will protect the Bill of
> Rights vs. the states and allude to Barron. Howard also refers to
> fundamental rights beyond those in the Bill of Rights which he says
> cannot be fully listed. He cites Corfield. Bingham thinks
> is about something else (by 1871 at least), but does not say it is
> 1-8 and nothing more. As I read it no one explictly contradicts
> and in the 1870s a number of both Republicans and Democrats embrace
> this interpretation. Bryan Wildenthal's work gives many later
> examples, richer and beyond those in No State Shall.
> 4. Historic grievances. Anti slavery activists faced Southern
> making anti slavery speech a crime in the South. The laws were also
> applied to the Republican party--Lincoln and Douglas agree
> Republicans can't campaign in the South. For the repression of
> slavery speech and connections to the 14th A. (and searches for
> slavery books and repression of anti-slavery ministers --free
> exercise) one source is Curtis, Free Speech.... There are
> of these complaints from the 39th Congress in No State Shall
> Abridge--but much more of the story in my free speech history
> Helper's book The Impending Crisis was abridged as a Republican
> campaign document and endorsed by about half of the Republicans in
> the House including Bingham and a several who were on the joint
> committee that produced the 14th. In 1860 North Carolina convicted
> minister for circulating the book and soon changed its law to make
> its bad tendency anti-slavery speech a capital crime for the 1st
> offense. Leading Republicans who endorsed the book would have
> serious legal problems in NC and other Southern states.
> 5, As Bingham pointed out he followed the Barron cookbook
> instructions for making guarantees a limit on the states--using "no
> state shall" just as Article I, sec. 10 had done and as Marshall
> you should. Akhil Amar points out the use of abridge in the 1st
> 14th Amendments and other intertextual arguments.
> 6. Some of the punishments for violating these laws to protect
> slavery involved whipping, and I think the pillory (but I may be
> confused on this last ). Bingham in the 39th refers to cruel
> 7. Some Black Codes explictly targeted free speech, arms, and free
> exercise of religion. See e.g., the example set out in Curtis, et
> Constitutional Law in Context.
> 8. Those who say section 1 = the civil rights bill obviously find
> some bill of rights guarantees in section 1--e.g. due process.
> Presumably in the "full and equal benefit of all laws and
> for the protection of person and property." This phrase was
> used to describe rights like those in the Bill of Rights. See e.g.
> Dred Scott describing rights in the Bill of Rights this way &
> Chancellor Kent. One of the Senators in the 39th Congress says we
> now have a national protection for free speech in the Civil Rights
> 9. While only Bingham and Howard explictly say Bill of Rights in
> 39th Congress, lots of congressmen and others in the campaign of
> say the amendment will protect all the rights of American citizens
> all constitutional rights and lots assume that these rights
> understood include Bill of Rights liberties. There are a number of
> references to the denials of civil liberty in the South--with free
> speech being the most common example--in the 1866 campaign.
> There are lots more technical arguments which I omit. And of
> there are contra arguments. But cumulatively, it seems to me that
> the idea that Bingham was right about the Bill of Rights as
> in the privileges or immunities clause has a good bit of support.
> History is rarely conclusive and people were focused on other
> things--the effect of the repeal of the 3/5th clause, etc. But the
> preponderance of the evidence and the most obvious (and least
> recondite) reading of it points that way. It is the stronger
> hypothesis, I think.
> So there are substantial arguments from text (privilege = rights);
> original meaning, context or intertext (Article I, sec. 10);
> precedent (Barron and Dred Scott--which also uses constituitonal
> rights and privileges interchangably), historic grievances for 30
> years before the Civil War about civil liberties in the South,
> original understanding, expressed intent, etc. that offer (I think)
> substantial support. When examined carefully, many of the
> arguments simply do not hold up. The best negative argument is
> all of this is not enough & that p or i is simply a guarantee of
> equality within the state as to certain basic rights, to testify,
> hold property, etc. An adaptation of Article IV equality. I don't
> think this deals very well with Bingham, Howard and the rest, the
> many references to free speech, etc. but others see it differently.
> There is certainly support in the 39th Congress debates for seeing
> incorporation plus other fundamental rights. But here I focus on
> Bill of Rights question--& Bingham's views on it.
> Michael Curtis
> ----- Original Message -----
> From: RJLipkin at aol.com
> To: CONLAWPROF at lists.ucla.edu
> Sent: Wednesday, January 31, 2007 8:25 PM
> Subject: Re: Was John Bingham Right about the Fourteenth??
> Several members of the List asked me to post this to
> everyone. Here it is. Thanks to those who provided this
> 1. http://www.constitution.org/col/intent_14th.htm,.
> http://www.constitution.org/14ll/14ll.htm )
> 2. Sandy's casebook (Brest et al.) has a section on this at
> 3. Michael Kent Curtis's book.
> Akhil Amar's book on the bill of rights.
> Calvin Massey's essay on the P/I clause in the new Heritage Guide
> the Constitution.
> John Harrison (UVA) articles in the Yale and Chicago L Revs on the
> 14th Amendment.
> David Currie's book on the Constitution in the Supreme Court, the
> first century.
> Maybe Currie's work on the Constitution in Congress has progressed
> far enough that he's covered Reconstruction.
> Randy Barnett's book on the Lost Constitution.
> You might also check Kurt Lash's scholarship
> Texas student by the name of David Upham, in the Texas Law
> He focused more on the Comity Clause and pre-Civil War case law
> it, but his findings are hugely relevant to 14A and Upham
> specifically talks about Bingham.
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Ratio Juris, Contributor: http://ratiojuris.blogspot.com/
> Essentially Contested America, Editor:
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Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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