John A. Bingham (1815–1900) was a Republican congressman from Ohio who served eight terms between 1855 and 1873, but with an interruption of two years that followed defeat in the election of 1862. After the Civil War he served on the Joint Committee on Reconstruction (1865–69) and from that position became instrumental in drafting the Fourteenth Amendment to the Constitution.
When Congress was considering the Civil Rights Act of 1866, which purported to extend civil rights to freed slaves, Bingham objected that the bill lacked a constitutional foundation. Congress had no power to enact such a law because “the care of the property, the liberty, and the life of the citizen, under the . . . Federal Constitution, is in the States, and not in the Federal Government.” Congress passed the bill over President Andrew Johnson’s veto, while Bingham undertook the framing of a constitutional amendment that would legitimate the enactment and guarantee federal protection of the civil rights of black Americans.
An early draft, which the Joint Committee reported to both houses, was framed as a grant of power to Congress: “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several States [Article IV, Section 2]; and to all persons in the several States equal protection in the rights of life, liberty and property [Fifth Amendment].” This failed to secure support in Congress.
The Joint Committee then resumed consideration of an amendment, and Bingham proposed a different approach, constructed as a prohibition on the states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” This became the core of Section 1 of the Fourteenth Amendment, the meaning of which would depend on judicial interpretation, although a concluding section of the amendment provides, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Whether Bingham and other sponsors of the amendment intended it to incorporate the first eight articles of the Bill of Rights and apply them to the states became a topic of controversy among jurists and other students of constitutional law. Remarks by Bingham on the floor of the House in 1871 indicated that he intended incorporation, but what he and others said in 1866, when the amendment was under consideration, was less clear. Justice Hugo Black, in a notable dissent in Adamson v. California (1947), asserted categorically that the sponsors of the amendment intended incorporation, but the Supreme Court was not persuaded, and adopted instead a practice of selective incorporation of rights deemed fundamental.
Richard L. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal 103 (October 1993): 57–104; Erving E. Beauregard, Bingham of the Hills: Politician and Diplomat Extraordinary (New York: Peter Lang, 1989); and Joseph B. James, Ratification of the 14th Amendment (Macon, GA: Mercer University Press, 1984).