The Great Amnesia

The Fourteenth Amendment and Bingham Constitutionalism

Discussion of the Fourteenth Amendment and Reconstruction Amendment, in general, fundamentally misconstrues the purpose of those amendments. In the context of modern debates, the Fourteenth Amendment is generally debated as a constitutional instrument within the domain of the Judiciary. That the power, the substance, of the Amendment is provided by the Courts and often the Courts alone.

This diminishes the authority—and misconstrues the nature—of the Fourteenth Amendment, and the Reconstruction Amendments in general. They are inherently legislative amendments; they were intended to expand the authority of Congress. The Fourteenth Amendment, in particular, is an example of constitutional retroactive continuity, that has been nearly entirely forgotten—or ignored.

The Fourteenth Amendment—more specifically, the most debated elements of its first section—is essentially the product of a single author, an influential Radical Republican Representative from Ohio, John Armor Bingham.

What is often forgotten is that the Fourteenth Amendment is the product of an intra-Congressional (really intra-Radical) debate on Congressional authority.

In the wake of the Civil War, the Radical faction of the Republican Party held the reins of authority in an overwhelmingly Republican Congress and was faced with the daunting task of stitching together the Union. Unsatisfied with just that, they also wanted to transform the Union. They wished to bring about multi-racial democracy and market economic development in the South, backed by a system of federal guarantees for the rights of all American citizens.

However, there was furious debate over the very authority of Congress to enact such a sweeping agenda.

Thus, there came forth two factions:

The mainline Radicals led by Thaddeus Stevens, who thought that Congress could act by statute alone, without further amendments to the Constitution; as that the Thirteenth Amendment empowered Congress enough to eliminate the “badges of slavery.” That by abolishing slavery in America, the Thirteenth Amendment empowered Congress to also abolish the supporting social and political institutions of slavery. Slavery as understood in 1866 was not merely a condition of chattel bondage, but a social, civil, economic, and political institution.

And then, there were the more reservationist Radicals, principally led by John Bingham, who believed Congress needed further authority to insure their planned Reconstruction. They thought, in short, that the Thirteenth Amendment did not extend sufficient authority for Congress to enact all of the Civil Rights Act of 1866. That overreach was not bad in and of itself. What was dangerous about it was that it created a vulnerability. A vulnerability so massive that a Redeemer Congress or Supreme Court could use it to, by the dash of a pen, resurrect that cephalopodic demon that the Republican Party had just spent four bloody years defeating, in whole. Bingham feared that short of a further constitutional rewrite, the Radicals’ plans for Reconstruction could not be secured future assault. That they could be washed away, and be washed away forever.

These factions spared off and on until, eventually, in 1866 a finely crafted compromise amendment passed the House and the Senate to negotiate several issues facing Congress. IN one fell swoop Congress would: overturn Dredd Scott, provide itself with sweeping new authority, provide countermeasures to the disenfranchisement of African Americans, disqualify rebels from holding office, and repudiate Confederate debts.

At its core, the Fourteenth Amendment was an omnibus amendment intending to reunify an unruly Republican Congress. It was basically, one-part For the People Act, one-part American Rescue Plan Act—in a constitutional altering package.

But notable amongst the omnibus nature of the Fourteenth Amendment is that Section One represents a two-fold constitutional retroactive continuity.

First and foremost, Section One is effectively one of the most profound cases of bet-hedging and ass-covering in American history, as it provides—at a bare minimum—the retroactive constitutional bedrock for the Civil Rights Act of 1866, and also implicitly, the other acts of the 39th Congress. This is the intra-congressional coalition-building part of the amendment, Congress was giving the thumbs-up to itself for its past actions.

Section One is—in a sense—an ex-post-facto authorization of the 39th Congress’s Reconstruction policies. Representative Stevens thought that Congress could overturn Dredd Scott and secure the rights of America’s newly christened African American citizens by statute alone, Rep. Bingham demanded an amendment, so they split the difference and did both. To make this even more clear, the 41st Congress re-enacted the Civil Rights Act of 1866 in 1870, as a provision of the First Enforcement Act—an act introduced by none other than one Representative John A. Bingham, then Chair of the Judiciary Committee.

Second and more interestingly, Section One also represents a much deeper retconning of the entire Constitution of 1787.

The Second Sentence of Section One of the Fourteenth Amendment should be best understood as embedding a strain of self-consciously anachronistic abolitionist constitutionalism into the text of the national charter of the United States.

The core conceit of Section One is premised on a specific interpretation of the Privilege and Immunities Clause of the Constitution, that it should be understood as: “the citizens of each state shall be entitled to all privileges and immunities of citizens [of the United States…] in the several states."

This “ellipsis” reading turns a rather benign clause about states treating other states’ citizens into a sweeping creation of a new set of national rights. However, Bingham argued that though the constitution created an enduring set of national rights at its onset—the Constitution did not create an enforcement mechanism for those rights. More or less that the Constitution had created a set of national rights, placed them behind a locked door, and did not to give Congress a key.

John Bingham and the Radicals wrote a key into the constitution.

The Second Sentence of Section One of the Fourteenth Amendment to the Constitution of 1787 can be fairly understood as retroactively ratifying the ellipsis reading of the Privileges and Immunities Clause—all the way back in 1868.

Or in Bingham’s words:

by express authority of the Constitution to do that by congressional enactment which hitherto they have not had the power to do, and have never even attempted to do; that is, to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.

Of course, this begs the question—what exactly is this new set of retconned national rights?

Bingham, arguing the minimalist case before, up that point a fairly, recalcitrant Congress, argued that:

The fourteenth amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States.

This is important to read in context, as Bingham’s previous attempts to codify the ellipsis theory were more direct, expansive, and failed. He had originally written a clause empowering Congress “to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” This was a step too far for the Congressional majority at the time, who feared directly empowering Congress would effectively end federalism. Thus, Bingham rewrote the clause to protect against abridgment, a weaker phrase that was intended to convey that the clause was not adding new privileges or immunities.

But even then, Bingham stated that the privileges and immunities were not exclusively the first eight amendments of the constitution—they were just “chiefly defined” by the Bill of Rights.

Which runs headlong into the issue of what exactly are the privileges and immunities of citizens of the United States?

Here is where the dead become considerably less helpful, as with an intentionally unenumerated list—things become by their nature, contextual and debatable. Or to use the words of “The Anti-Majoritarian Mistake” by Will Wilkinson:

There’s a sense in which basic rights, whatever those turn out to be, are non-negotiable. But what they turn out to be is the product of negotiation. In the real world, the rights we demand either reflect the exploitation, domination, constraint, and injustice we’ve experienced or privileges we seek to protect. But the rights that are ultimately recognized and protected are a function of the inclusion or exclusion of classes of citizens in the political system and the equality or inequality of influence on the process of political deliberation and decision-making. Political deliberation and negotiation can be a process of discovery, but what’s discovered depends on who’s allowed in the room. Rights don’t come to us on tablets etched by the divine. They come from people who know where the shoe pinches demanding more comfortable shoes.

The dead cannot fetter the living, only the living can fetter the living. Even if it was agreed that the privileges and immunities of citizens of the United States were only the Bill of Rights, or the Bill of Rights plus Justice Washington’s list in Corfield v. Coryell—That is a decision reached by the living not the dead (an also ignoring that even Justice Washington’s list was not intended to be exhaustive), even if the living think the reason why they reached that decision is because of the dead, the dead aren’t calling the shot.

Of course, the “we” in question matters greatly. This brings me to the point: there is only a single body vested with sufficient legitimacy and power to determine what are the privileges and immunities of the United States and what remedies are needed to protect them.

The United States Congress.

The only way for these fundamental rights to be decided in a non-arbitrary way is through contestatory democracy, and therefore the only proper forum is a representative and a freely elected legislature. This is not only just but it is also fitting. The Fourteenth Amendment to the United States is by its nature and by its intent, an amendment by Congress—for Congress.

The Judiciary still has its role in enforcing the amendments, which gives them much latitude, but the Fourteenth Amendment, nor the privileges and immunities of citizens of the United States are the exclusive domain of the Courts. The tribunes wreathed in black robes cannot dictate, after all—they may only opine.

Unfortunately, the course of constitutional events has so far seen this intention ignored or outright rejected. The Fourteenth Amendment has become the sole plaything of the Judiciary, this is as much a product of our constitutional system as much as anything else.

But the question of Why have we gotten a Fourteenth Amendment shorn of its intent? Still lingers

The Why, is relatively intuitive: self-interest, intra-coalitional wrangling, and path-dependency.

It is important to state just how weak the federal judiciary was in the 1870s. They had spent the previous decade suffering what can only be described as a beat down for the centuries.

The Supreme Court had sowed the wind and they reaped the whirlwind.

Chief Justice Taney, a partisan Jacksonian Democrat, had sought to strangle the Republican Party in its crib with Dred Scott. He assumed that it would shatter the Republican coalition—it backfired horribly, and the Court paid for it. The Court was explicitly ignored by the Executive with habeas corpus in Ex parte Merryman. The Court then had its number reduced twice by the Judicial Circuit Acts of 1866 in a blatant game of political maneuvering to screw over Andrew Johnson. And in Ex parte McCardle, to drive the final nail in the coffin, Congress stripped the Supreme Court of its jurisdiction of a case it was in the process of hearing in 1869.

If the Court were to act as Bingham provided and incorporate the entirety of the Bill of Rights in one fell swoop it face two major issues: one, it would lose the authority to decide which elements of the Bill of Rights were incorporated because there would be nothing left to incorporate and two, it would find itself burdened with a truly tremendous workload—the gate of hell would open and a voluminous deluge of litigation would drown the tribunes in their seats, while also quite potentially raising major questions about every facet of the American constitution structure.

The court would simultaneously lose its power to choose, find itself with a truly massive new and self-inflicted workload, and a workload built on fundamentally reworking the foundation of the American legal system with all the instability and ambiguity that could introduce.

This applies as much to the late 1870s as it does today. Stare Decisis bind the court, as does their own rational self-interest toward furthering their power and control of their branch of government.

So, by rejecting Bingham Constitutionalism, the court was able to empower itself after a decade in the wilderness. The Gilded Age saw the court re-asserting its influence not only because Congress was no longer curb-stomping it, but also because the remit of the federal government had expanded—federal courts were hearing and deciding much more “regular” cases than it had prior.

Now, the reason why the Court was able to enact opinions contrary to the intent of the ratification of the Fourteenth Amendment is a twofold lack of consensus:

One, quite simply, there was not enough time with anyone in a trifecta or a particularly strong trifecta to go kick the Court in the shins—there were only six years of united government between 1874 and 1896 elections (four Republican and two Democratic).

Two, the court wasn’t acting against the Republican Party, which had appointed them—it was acting within the Republican coalition. The GOP was divided on civil rights, and the general trend of the party as the century headed towards its close was something along the lines “yeah we support civil rights, but we won’t invest political capital in their assertion.” The Republican coalition had run the limit of its consensus on civil rights, and thus that gave the court freedom to act—and it usually sided with the more legally conservative and lily-white factions of the GOP.

Take, for example, Plessy v Ferguson, which legalized “separate but equal” segregation—but it also firmly closed the door on a return to the all-but-slavery of the Black Codes of the late-1860s and early-1870s. The Court had sided with the Republican Party’s position, almost to a T—at the expense of the privileges and immunities of those Blacks Americans the Supreme Court and the Republican Party saw as not worth the cost of defending.

This mostly brings us to the present day, where the Court has finally resurrected the intent of the Fourteenth Amendment through unintended means, using the Equal Protection and Due Process Clauses. The process of selective incorporation, of course, privileged the Court, but has seen the privileges and immunities of Americans protected.

However, in the age where it seems as if the Roberts Court may take a step hitherto untaken in American history, rescinding a long-standing privilege or immunity, as seem to be the likely outcome of pending anti-abortion litigation, the original intent and original—unclaimed—power of the Fourteenth Amendment is as important as it has ever been.

The privileges and immunities of citizens of the United States are not safe in the hands of robed tribunes alone—they can only be safe in a true, pluralist liberal democracy with free and fair elections—something that itself seems frightfully in danger. Self-styled prattling autarches are not exempt from entropy. Every order falls—every sun sets eventually. This is the strength of democracy. This is why, those who are best furnished to decide what are the privileges and immunities of the citizens of the United States… are the citizens of the United States—not the Supreme Court. Defeat is not forever, so long democracy prevails.

This alone is enough reason why democracy, realized democracy, must prevail.

We must remember that democracy is not defenseless if those in positions of power are willing to defend it. The Radical Republicans leveraged every tool availed of them—and their legacy and instruments remain unclaimed. It may be necessary for those liberty-loving Americans to reclaim the mantle of Radical—and to defend our democracy with the same tools availed in its defense some one-hundred-and-fifty-seven years ago.