American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 9780814761465

Citation preview

American Founding Son

american

founding son joh n bi ngh a m a nd t he i n v en t ion of t he fou rt een t h a m endm en t

r Gerard N. Magliocca

a NEW YORK UNIVERSIT Y PRESS New York and London

NEW YORK UNIVERSITY PRESS New York and London www.nyupress.org © 2013 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Magliocca, Gerard N. American founding son : John Bingham and the invention of the Fourteenth Amendment / Gerard N. Magliocca. pages cm Includes bibliographical references and index. ISBN 978-0-8147-6145-8 (cl : alk. paper) 1. United States. Constitution. 14th Amendment—Legislative history. 2. African Americans—Civil rights—Legislative history.. 3. Bingham, John Armor, 1815-1900. 4. Civil rights—United States. 5. Equality before the law—United States. I. Bingham, John Armor, 1815-1900. II. Title. KF455814th .M34 2013 328.73092—dc23 [B] 2013010671 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Book design by Marcelo Agudo Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1

For Preeti

The Republic, sir, is in the hands of its friends, and its only safety is in the hands of its friends. John A. Bingham, 1866

contents

Acknowledgments

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Introduction: Measuring a Man

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1. Group Think

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2. Franklin College

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3. Lawyer and Whig

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4. Republican Congressman

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5. And the War Came

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6. The Trial of the Century

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7. The Fourteenth Amendment

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8. Reconstruction and Impeachment

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9. Farewell to Washington

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10. Ambassador

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11. Obscurity

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Conclusion: Legacy

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Appendix: The Reconstruction Amendments

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Notes

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Bibliography

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Index

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About the Author

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acknowledgments

Every biographer should explain why it is worth spending so much time learning about somebody else’s life. In my case, the answer is that John Bingham is a fascinating man who is largely unknown despite his immense contributions to law and justice. One of my most prized possessions is Bingham’s autograph, which I purchased from an antique shop in Chicago and had framed with his picture. His stern face looks down at me every day in my office: a vivid reminder until recently that this book was undone. In keeping with my view that a biography should be about the subject, not the author, I will now recede into the background as best I can. Let me begin by thanking Deborah Gershenowitz, Clara Platter, Constance Grady, Alexia Traganas, and everyone at NYU Press for their support and confidence. I am also grateful to Bruce Ackerman, Jack Balkin, Randy Barnett, Josh Chafetz, David Fontana, Brian Kalt, Carlton Larson, Mike Pitts, David Stewart, Tom Shakow, Charles Wallace, Bryan Wildenthal, and the students in the Georgetown Law School Recent Books on the Constitution Seminar for reading drafts and giving me comments that shaped the final product. I owe a special debt to Richard Aynes, the greatest living authority on Bingham, who was generous with his time and wisdom. Finally, the critical eye of Carlo Andreani, an accomplished lawyer in his own right, was indispensable in clarifying my thinking. I never could have written this book without the assistance of the staff at the libraries and archives that possess many of the sources that I consulted. Consequently, I want to pay tribute to the Abraham Lincoln Presidential Library, the Franklin College Museum, the Harrison County Historical Society, the Historical Society of Pennsylvania, the J. P. Morgan Library, the Library of Congress, the Massachusetts

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Historical Society, the National Archives, the Ohio Historical Society, and the Rutherford B. Hayes Presidential Center. Many individual volunteers in Ohio, particularly Ray Ferrell, Scott Pendleton, and Charles Wallace, helped me find crucial items and deserve recognition for keeping Bingham’s memory alive. At my law school, Debra Denslaw did an amazing job of locating other sources and photos, and John Higgins, my research assistant, took on the thankless but essential task of getting every statement that Bingham made on the floor of the House of Representatives. He deserves a medal. Last but not least, I salute my colleagues at the Indiana University Robert H. McKinney School of Law, whose friendship and encouragement inspire my work. And to my family and friends who have patiently endured my Bingham obsession for the past few years, this is what all of the fuss was about.

introduction Measuring a Man

No biography of Bingham has ever been written and perhaps none ever will be. It is too late now. He has been in his grave for many years. Those  .  .  .  who knew him intimately and watched his public career and were received into his confidence are all gone. His family are scattered and his books and papers. All authentic records too are gone, save of some of his speeches in Congress, and a few others. . . . So there is little encouragement for anyone to attempt a life. Besides those who would purchase such a book are gone too. There could be now little inducement for the preparation of such a “life.” Walter Gaston Shotwell, 1927

Americans are of two minds about their past. When the subject is military history, the Civil War holds a special place in our national life. When it comes to political and legal history, the Founding Fathers and the birth of the Constitution are sacred. Most people know who Robert E. Lee and Alexander Hamilton were and want to learn more about them. Turn this pairing around, however, and a strange thing happens. Interest in the Revolutionary War is less common: George Washington is the only general who stands out. Likewise, the politicians who led the Civil War are largely unknown, except for Abraham Lincoln. This indifference to the civil side of the Civil War is unfortunate because the Confederacy’s defeat led to constitutional changes that were as profound as the ones launched in Philadelphia after our first civil war between royalists and patriots.1 The most striking example of neglect with respect to our Founding Sons is Congressman John Bingham of Ohio. In 1866, Bingham wrote

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the following language that became part of Section One of the Fourteenth Amendment to the Constitution: 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.2

This is the most important sentence in the Constitution. It is the language that the Supreme Court used to desegregate the public schools, end discrimination against women, establish equal voting rights, and find the right to sexual privacy.3 The first section of the Fourteenth Amendment is also the text that extends most of the Bill of Rights to the actions of state governments, since the Founding Fathers believed that the first eight constitutional amendments—including the freedom of speech, the right to bear arms, and the right to a jury trial—applied to only the federal government.4 Yet the man who crafted the Fourteenth Amendment’s guarantees of liberty and equality, along with his understanding of what they were intended to do, was forgotten even before he died.5 Bingham’s invisibility is even more astounding given that he was at the center of almost every dramatic event that shook the Capitol in the 1860s. Not long after entering the House of Representatives in 1855, he became one of the strongest anti-slavery voices of the Republican Party. When Lincoln was murdered in 1865, Bingham was appointed as one of the prosecutors in the military trial of John Wilkes Booth’s alleged accomplices and delivered the closing argument against them. He was also the most influential leader in shaping the demands that the North made on the South before the ex-rebels could return to the Union, and when Lincoln’s successor, Andrew Johnson, sabotaged that policy, Bingham joined the team that prosecuted the president’s impeachment in the Senate and gave the closing argument there as well. All of this was in addition to his career as a lawyer, his skill as an orator, and a successful tenure as the U.S. ambassador to Japan in the 1870s and 1880s. Many who saw Bingham in action knew that he was touched by greatness. A profile published in 1863 described him in his prime:

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In person he is spare, and rather slight; sharp in face and sharp all over, as well in mind as in body. Rather inclined to verbosity, he is, nevertheless, regarded on all hands to be one of the ablest debaters in the House, as he is beyond doubt the readiest speaker in either branch of Congress. He is of medium stature, inclining forward in attitude; shoulders tending to be a little out of square—the last two features in his personal appearance not being in any manner improved by his habit of buttoning his coat at the waist. His face, not round, is deeply furrowed and indented, giving him the appearance of an austere, thoughtful man. His brown, brilliant eyes are deeply set in his head; his nose prominent, as is usual with prominent men; forehead bold and intellectual; hair thin, light brown, sprinkled with gray, complexion fair; he is quiet and inclined to reserve his manners . . .  In repose there is nothing in his appearance to attract the attention of the casual observer. In looking down upon the House from the galleries, with a scanning eye even, the stranger would scarcely select him as one of its acknowledged leaders. It is only when he rises and launches into some high theme, with his massive and manly arguments enunciated in a sonorous, round, full and powerful voice, and in elevated, well modulated, chastely framed periods, flowing in spontaneous smoothness and profusion from his tongue, that you are conscious of being in the presence of a remarkable man.6

Like every powerful man, Bingham also had his detractors. Some thought that he was too radical in the pursuit of racial justice, and others thought that he was too moderate. He was called a “woman-killer” because of his role in the execution of Mary Surratt, one of the convicted conspirators to Lincoln’s assassination who claimed that she was innocent. A prominent historian in the 1930s called Bingham a politician who was “all shrewd, adroit, empty, and on the make.”7 And some law professors have dismissed the author of the Equal Protection Clause as “befuddled” or as “a gasbag” who did not possess a strong legal mind.8 John Bingham’s life is a study of the role of the rule of law in a constitutional democracy. His fight against slavery and the invention of the Fourteenth Amendment presented these questions in the starkest terms, as they were deeply concerned about embedding into law the creed that “all men are created equal.” At the same time, the unconventional means

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that Bingham championed to achieve those ends, such as an extended period of military rule in the South and the stripping of the Supreme Court’s jurisdiction to consider a lawsuit challenging his Reconstruction policy, stretched the Constitution to its breaking point. Likewise, his participation in a military trial, not a jury trial, of the citizens who were accused of killing a president was controversial and raised the age-old question of what “due process of law” means in a time of war. Finally, the inability of legal equality under the Fourteenth Amendment to secure equal justice for African Americans until Dr. Martin Luther King Jr. carried Bingham’s work forward in the 1960s shows that the rule of law is not enough to make freedom ring. Nevertheless, justice without law is impossible, and Bingham’s labors were essential to the long, slow march of progress.9 Lincoln was our greatest constitutional poet, but Bingham was the man who turned that poetry into prose. It was an unlikely journey, filled with personal tragedies and professional triumphs, which redefined the United States as one nation under law.

1 group think [C]hattel slavery is an “infernal atrocity.” I thank God that I learned to lisp it at my mother’s knee. John Armor Bingham, 1862

John Bingham and the abolitionist dream that was his life’s pursuit were both rooted in the emerald hills of western Pennsylvania and eastern Ohio. The Bingham family traced its origins to another John Bingham, a knight who marched with William the Conqueror, but its American patriarch was Hugh Bingham, who came from Ireland in 1736. Hugh settled in central Pennsylvania (near what is now York) and married Martha Armor, who was the source of her great-grandson’s middle name. Hugh and Martha had six children, including Mary Bingham, the great-grandmother of President William McKinley, and Hugh Jr., John’s grandfather.1 The younger Hugh Bingham fought with the British during the French and Indian War and against them during the American Revolution. After the Revolutionary War, he wed Martha Duncan, who according to family lore helped supply the Continental army in Pennsylvania. Before Hugh Jr.’s death in 1793, he had two sons, Hugh III and Thomas, who both played a critical role in shaping John’s destiny.2 Hugh Bingham III was a carpenter who was active in local civic life. He settled in Mercer, about ten miles east of the Ohio border, and married Esther Bailey, whose father came from the same part of Pennsylvania as Bingham’s ancestors and had also fought the redcoats during the War for Independence.3 (No royalists appear in Bingham’s family tree.) Hugh served in the state militia during the War of 1812, was elected to the city council, and became county commissioner.4 A nineteenth-century book on Mercer County described Hugh as “an industrious and worthy gentleman,”5 and his politics were staunchly anti-slavery and opposed to secret societies such as the Masons that were seen as inconsistent with

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democracy. Men of Scotch-Irish descent were the base of the Anti-Masonic Party, which never gained traction nationally but did have a strong following in Pennsylvania led in the legislature by Thaddeus Stevens, who would be John Bingham’s great rival and partner in the House of Representatives decades later.6 Joseph Ritner, the only Anti-Masonic governor of Pennsylvania, named Hugh the county clerk of courts, which was the kind of patronage job that went to those who supported Ritner’s policies.7 When the Anti-Masons fell out of favor, Hugh shifted his loyalty to the Whigs, the chief political alternative to the Democrats, and ran for office as a Whig.8 John Bingham was born on January 21, 1815, the oldest of Hugh and Esther’s seven children.9 The two-story brick house where they grew up was built by Hugh on the south side of the town square and today serves as local Republican Party headquarters.10 As a boy John would have looked at the county courthouse across the street, not knowing that one day he would make his living arguing in court. The size and prominent location of the house, along with records listing Hugh Bingham’s name on property transactions, indicate that the family was prosperous.11 John’s siblings are almost never mentioned in his surviving letters, and they do not appear to have played a significant role in his adult life.12 There is evidence, though, that Bingham was on good terms with his father, as he often visited him in Mercer on his way to Washington following his election to Congress. When Hugh died in 1866, Bingham called him “my dear father” and wrote that his grandchildren loved him “so much.”13 John was twelve when his world was turned upside down by the death of his mother. Unfortunately, we can say little for certain about Esther Bingham. The same goes for how John spent his youth. He received some basic schooling in Mercer, but the details are vague. What is clear is that Hugh decided that until he remarried, his oldest son would be better off in Cadiz, a town about a hundred miles southwest of Mercer, with his uncle Thomas. This was a fateful choice, because it was in Cadiz that Bingham found the close-knit community that would sustain him throughout his life.14

Cadiz When John arrived in Cadiz, it was just a tiny village surrounded by wheat, sheep, and cows. Walter Shotwell, a local judge and historian

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John Bingham’s boyhood home in Mercer. Harrison County Historical Society.

who was Bingham’s first chronicler, painted the following picture of what this part of Ohio was like in 1827: Its streets were unpaved and unpiked; and in the deep lime-stone soil of that locality, constantly cut up in winter by wagons hauling coal and wood, they became quagmires of mud, that were at times impassible. The houses were generally log or frame, with a few of the better class of homemade brick. The street crossings were of ashes. The stores were small. There was no railroad and being an inland town, there was no river communication. Two coach roads crossed at the public square and brought periodic mails; and these were almost the only means of communication with the outside world. The long winters of deep snow and mud hemmed the residents in for six months of the year, and the sole places of interest then were the Church and the Court House.15

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Despite this less-than-rosy assessment, Cadiz was not without its charms. The nearby countryside evoked the land of Bingham’s Irish forefathers, and he said in retirement that “[t]he hills and primeval forest and green fields which girdle this village make a picture of quiet beauty which, I think, is scarcely surpassed in any part of our country which I have seen.”16 More important, Cadiz was the seat of Harrison County, and as a result lawyers from miles around came to transact business there. Amazingly, this town with a population of about a thousand people served as the professional springboard not only for Bingham but also for Edwin M. Stanton, the secretary of war under Abraham Lincoln and Andrew Johnson.17 Thomas Bingham was a merchant in Cadiz. He lived in Mercer before moving to Ohio, and emulated Hugh by becoming a pillar of his town.18 In addition to serving as the president (in other words, the mayor) of Cadiz, he was chosen by the Ohio legislature as an associate judge of the Harrison County Court of Common Pleas.19 At this time, an associate judge was a layman charged with finding the facts under the supervision of a president judge, a lawyer who gave guidance on the law much as a modern trial judge does for a jury.20 Thomas’s early political leanings are difficult to discern, but he eventually followed Hugh into the Whig fold and was a delegate to the state party convention in 1840.21 On the spiritual side, Thomas was a founder of the Associate Reformed Presbyterian Church in Cadiz—a Calvinist branch of the Church of Scotland that stressed the building of a just temporal order as the best way to honor God.22 (Some sources erroneously claim that Thomas and John Bingham belonged to the more radical Associate Presbyterian Church, which is an easy mistake because the two names are so similar and the two denominations later merged to form the United Presbyterians.)23 The leader of the Cadiz Associate Reformed congregation was William Taggart, who would later be one of Bingham’s college professors.24 This was the church that John Bingham attended in his teenage years and would be his religious home until his death.25 While enrolled at school in Cadiz, Bingham also forged relationships that reinforced the values that he was learning at home and from the pulpit. One of his friends was Matthew Simpson, who became one of America’s most influential clergymen as a bishop of the Methodist Episcopal Church.26 Bishop Simpson was a fierce critic of slavery and

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became a close adviser to President Lincoln, giving his funeral oration.27 Bingham was even closer to Simpson’s uncle, also named Matthew, who was one of the first members of the Cadiz branch of William Lloyd Garrison’s American Anti-Slavery Society.28 The elder Matt Simpson was also intimately associated with Franklin College, Bingham’s future alma mater, and was a trustee of that institution.29 The greatest personal bond that came from Bingham’s stay in Cadiz, though, was with his first cousin Amanda. She was only two when he moved in with her father, and hence they could not have had any meaningful interactions before Bingham returned to Mercer in 1831. One day, though, Amanda would become Mrs. John Bingham.

Apprentice and Student When John was sixteen, Hugh remarried, and his son returned to Mercer. John dropped out of school and became an apprentice at the Luminary, an Anti-Masonic newspaper.30 It is not clear why he moved or took this job, although it is possible that Hugh needed him back at home to support the family. When Bingham ran for Congress in 1854, his editor at the paper said that he “was a noble youth, possessing the best memory of any young man I ever saw,” and that Bingham was no “friend of slavery or oppression.”31 Bingham’s two years at the Luminary coincided with the most contentious period of Andrew Jackson’s presidency. In 1832, “Old Hickory” vetoed the new charter of the Second Bank of the United States. In so doing, he said, in language that Bingham would use in Section One of the Fourteenth Amendment, that “[m]any of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress.”32 The president rejected the broad interpretation of federal authority that Chief Justice John Marshall had used to uphold the constitutionality of the Bank in M’Culloch v. Maryland, arguing instead that Congress’s power should be read more narrowly to protect states’ rights.33 Not long before the Bank Veto, the chief justice issued the Supreme Court’s opinion in Worcester v. Georgia, which defended the rights of the Cherokee Tribe and the religious freedom of white missionaries preaching within the tribal region in a thinly veiled rebuke of Jackson’s plan to remove Native

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Americans from their homelands.34 The Bank Veto and the Cherokee Removal were at the center of Jackson’s successful reelection that fall, which confirmed the Democrats as the dominant political party.35 In this struggle Bingham would side with Marshall, whom he called “the chiefest of our judges,” and in Congress he invoked M’Culloch and Worcester as correct rulings that supported federal efforts to guarantee fundamental liberties.36 Until the Civil War, though, Jackson’s contrary philosophy prevailed under Marshall’s successor, Chief Justice Roger B. Taney.37 Bingham did not take to the printing business. When he was eighteen he left the Luminary and resumed his education at Mercer Academy, a school that received public money, charged a modest tuition, and was analogous to a modern prep school.38 While he was still a printer’s apprentice, Bingham had caught the attention of Mercer Academy’s principal, who decided to tutor him in Latin every morning.39 As a fulltime student, his studies focused on ancient Greek, mathematics, and oratory.40 A teacher known for using rote instruction once criticized Bingham when a classmate did better at reciting Latin, and Bingham replied that the other boy could repeat the words but did not understand them. Nonetheless, Bingham worked hard to master classical speeches and the addresses of the three great senators of that era—Daniel Webster, Henry Clay, and John C. Calhoun. He also joined the town debating society, which included a lawyer who told him to go to college and improve himself.41 The most striking aspect of Bingham’s youth is its cultural uniformity. While he would be one of the most prominent dissenters in the country in the 1850s, he was not a rebellious young man. His family, friends, community, and faith were all aligned in their fervor for abolitionism, devotion to God, and hostility to the Democratic Party. Bingham made no effort to escape this cocoon with his college choice. Indeed, his first step into the wider world was very close to home.

2 franklin college I turn from these, my venerated instructors and early associates, now clustering in bright and beautiful forms in the clear mirror of memory, to speak to the young and glowing Intelligences now here, and about to go out from this seat of learning, into the great world of human thought, and human feeling, and human action. John A. Bingham, 1851

In 1835, John Bingham enrolled at Franklin College in New Athens, Ohio, about six miles from Cadiz.1 His decision was probably based on the school’s proximity to his family, the fact that his former pastor was on the faculty, and the role that his friend Matthew Simpson had played as a founding trustee.2 While Franklin’s evangelical and abolitionist cast was not new to Bingham, his college years were exceptional. One of his classmates was an ex-slave, Titus Basfield, who was one of the first African Americans to obtain a bachelor’s degree in Ohio and would be Bingham’s friend for the next forty years. Few men attended a racially integrated college in the 1830s, and this experience helps explain Bingham’s freedom from racism. His time at Franklin also coincided with an upsurge in abolitionist activism in Ohio, from which came the argument that slavery was contrary to the Constitution’s protection of due process of law and of the privileges and immunities of citizens.3 This was the foundation for Section One of the Fourteenth Amendment, and one of the first statements of that creed came in Cadiz while Bingham was still in college.4 Although he left Franklin without graduating, these two years of higher education gave him skills and ideas that served him well as a civil rights leader.5

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John Walker and the Campus Franklin College was the brainchild of John Walker, a multitalented man whose life paralleled Bingham’s in some respects and inspired his abolitionism. Walker was a pastor in the Associate Presbyterian Church, whose congregants were called “Seceders” because they rejected mainline Presbyterianism.6 This sect was more ascetic than the Associate Reformed Presbyterian Church that Bingham attended in Cadiz, as no music was performed at services, no eulogies were given at funerals, and the frustrations of frontier life could not be tempered with dancing, gambling, drinking, theater, or profanity.7 That purity extended to slavery, as a nineteenth-century author said that “hard-headed, austere Seceders, the followers of Dr. John Walker and other ministers of his kind, would tolerate no compromise, and they looked upon . . . colonization schemes [i.e., sending slaves back to Africa] with almost the same disrespect that they would consider any half-way measure proposed by pro-slavery advocates.”8 It is a curious coincidence that Reverend Walker’s first two ministries were in Mercer and Cadiz—the same towns that Bingham called home. Though he preached in Mercer before 1815 and was in Cadiz before Bingham moved there, it is possible that Hugh and Thomas Bingham knew Walker.9 One contemporary said that he was “esteemed a preacher of great ability. His utterances were easy and rapid. With a quickness of perception, he knew well to say the right thing in the right place. . . . He conformed to the custom of his time and preached sermons of immoderate length. To this day, there are some who delight to tell how long the services were.”10 At Franklin College, Walker led the church that the students attended, and there is every reason to think that Bingham was exposed to this dynamic personality every Sunday and in class.11 In 1825, Walker cofounded Alma College, which was later named for Benjamin Franklin.12 While Franklin was officially nondenominational, members of the Seceder church flocked there, and the school produced more ministers of that faith than any other college.13 Sixteen students were in the first graduating class, and the institution was still tiny when Bingham arrived.14 Six men (including Walker) were on the faculty, and only twelve students were in Bingham’s class.15 The campus consisted of just two buildings, one of which was a converted private house.16 Still,

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the college would punch above its weight, as its alumni would include four senators and congressmen who voted on the Fourteenth Amendment.17 Those leaders were trained by a tough curriculum dominated by math, the classics, philosophy, and science.18 Franklin earned a reputation as “the fountain-head of the abolition sentiment of eastern Ohio,” and this was a reflection of Walker’s personal crusade against slavery.19 Andrew F. Ross, who was at school with Bingham and became Franklin’s president during the 1870s, said that Walker was “a man of deep convictions upon the subject of equal rights, and common justice to all mankind. Hence he entered into the Anti-Slavery contest with all of the ardor of his impetuous nature, and during that long controversy was one of the leading Anti-Slavery spirits of the West.”20 Walker helped organize the Ohio Anti-Slavery Society in 1835 and put his own house at the disposal of slaves escaping on the Underground Railroad.21 Evidence of Franklin’s warm attitude toward abolitionists can be found in an 1837 ad that was placed in the Cincinnati Philanthropist, a radical newspaper run by anti-slavery advocate James G. Birney.22 Addressed to the “Friends and Patrons of Franklin College,” the ad said that the school’s “two Literary Societies are in good standing, and are accessible to all students. Free discussion on all subjects is allowed in them and in College, but no preference is shown to any student on the ground of either his religious or other opinions.”23 Although this firm commitment to academic freedom was admirable, the message for those who read between the lines was that skeptics of slavery would find a safe haven at Franklin. The literary societies described in the Philanthropist played a key role on campus and gave Bingham his first rigorous training in rhetoric. Each of these societies—the Jefferson and the Philosophic—functioned as a social club with a library where members could relax and do research.24 All students “were expected and, indeed, required, under the penalty of a small fine, to participate in the performances. There were classes in declamation, essay, oration, and debate; and the members of the society were divided, by a program committee, into the different classes.”25 The debates were open to the public, and at the end of the school year there was a contest between the societies that was a major event.26 Fortunately, the minutes of some of those meetings survive, and thus we know that Bingham was the secretary of the Philosophic Society and took the affirmative position in debates on whether “the

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existence of an intelligent first cause be proven by the light of nature, independently of revelation,” and on whether it was “morally right to compel a jury of twelve individuals to be unanimous in giving their evidence,” while taking the negative position on “[s]hould capital punishment be abolished.”27 Twenty years later, Bingham wrote an introduction to a book on public speaking and said that “[u]nwritten speech is, in my judgment, the more efficient method of public speaking, because it is the natural method. . . . A cultivated man fully possessed of all the facts which relate to the subject of which he would speak, who cannot clearly express himself without first memorizing word for word his written preparation, can scarcely be called a public speaker.”28 There is no way to know if Bingham was the best debater at school, but his enthusiasm for the art of persuasion was undeniable.

Titus Basfield and Social Equality College students learn as much, if not more, from their classmates as they do from their teachers, and no biography of Bingham can overlook the fact that one of his friends at Franklin was an African American. Unfortunately, the letters that Bingham wrote to Titus Basfield from the 1830s until the 1870s are now lost, but we do know a lot about Basfield from his autobiography, which was published in 1858.29 Basfield’s story gave Bingham a firsthand account of the brutality of slavery and proof that blacks were equal to whites. Basfield was born a slave in Virginia in 1806. His father died when he was young, though Titus wrote that his mother saw her husband only once a week because “he was not at full liberty.”30 The Basfields had six children, but the family was separated when Titus, his mother, and his younger sister were taken by a slaver to Tennessee. A buyer took an interest in the girl, “paid down his two hundred dollars, and picked her up in his arms in a deep sleep before my heart-broken mother, the tears trickling down her cheeks (for she doted much upon her children) and he went off without the least remorse.”31 Over the next few years Basfield was owned by eight masters and was taken from his mother, whom he never saw again.32 The turning point in Basfield’s life was when he came into the household of James Reid, a Tennessee farmer whose mother was part of the

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Seceder Church.33 Reid took an interest in his education, which focused on reading the New Testament.34 Titus began attending Presbyterian services and reading theology to learn “what denomination came nearest to divine rule,” and at the end of that search he was baptized as a Seceder.35 Basfield’s pastor asked Reid to give him his freedom, and when that appeal failed, the pastor got another member of the congregation to buy him for $550 on the promise that Titus would be freed when he worked off his debt.36 Four years later, Basfield was finally able to chart his own course.37 After working on a farm for three years, Basfield moved to Ohio and enrolled at Franklin as its first African American student. Walker gave him a rent-free room in his own house (the same house that sheltered runaway slaves), and Basfield called him a friend.38 Twenty-five years later, he described his college experience: I agreed with the Faculty to make up fires in the mornings, and keep the College Halls in readiness for recitation. I became also sexton for Unity meeting house, dug and furnished coal, made up and attended the fires on Sabbaths, and kept the house in complete order. For this I received twenty-five dollars a year, and worked a month every vacation, for which I would receive ten dollars, and sometimes a little more. These moneys, and what I made in harvest times, enabled me to procure clothes and provisions. I did my own cooking and washing, swept the College every morning and slacked the fires every evening, and still kept with my class. In the evening I would look over my lesson, and then retire to bed; and frequently rise at two o’clock, go down, regulate the rooms, stir up the fires and return; review my lessons, prepare and eat my breakfast, and attend and answer to my name at nine o’clock. I resolved time and again that I would be under the necessity of giving it up, on account of the fatigue, the exposure in cold night air, and of thick suffocating dust. I would, however, take courage again; and with a determination to reach the highest summit of the hill of science, went forward with indefatigable ardor, [and] completed my course.39

After graduating in 1837, Basfield entered the seminary and became a minister in Canada, where he preached mostly to former slaves.40 Bingham’s long friendship with Basfield suggests that their time together at Franklin was meaningful. One inference that is hard to avoid

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is that their relationship convinced Bingham (or reinforced his belief) that African Americans were his social and political equals. One of the most notable facts about Bingham’s public career is that he never said anything positive about white supremacy. In this sense, he was more radical than many of his Republican colleagues, who held that African Americans were entitled to equal treatment with respect to some, but not all, walks of life. Of course, Bingham would never have known Basfield without the efforts of Reverend Walker, who gave an ex-slave the opportunity to break the color barrier at Franklin.

The Rise of Abolitionist Constitutionalism While Bingham spent his college years at a distinctive place with antislavery activists, he was also there at a time when the depth and intensity of abolitionist action increased and produced many of the constitutional arguments that he would turn into law. There were abolitionists from the moment that there were slaves, but the movement to end slavery became more sophisticated during the 1830s.41 No single factor can explain why this change occurred at that time. One idea is that a religious revival—the Second Great Awakening—made people more aware of the evil of slavery.42 Another thought is that there were more cases involving the rights of free blacks, which exposed the hypocrisy of the slave system.43 The decision of the House of Representatives to bar antislavery petitions from being debated in that body was also relevant, as it created a backlash among moderates who supported free speech.44 Finally, President Jackson’s violent expulsion of the Cherokees on the “Trail of Tears” undercut support for deporting slaves to Africa, which was the alternative to abolition for those who disliked the status quo.45 The heart of this new crusade was Bingham’s adopted home region of eastern Ohio, and one of its early leaders was Theodore Weld.46 Weld was a student in Cincinnati who was once described as “a gaunt, impassioned, John-the-Baptist-like figure, his voice a whisper from overspeaking.”47 In 1838, he published a pamphlet titled The Power of Congress over the District of Columbia, which was “a restatement and synthesis of abolitionist theory as of that time.”48 Weld argued that Congress could abolish slavery in the District of Columbia and that the Due Process Clause of the Fifth Amendment, which provided that

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“[n]o person shall . . . be deprived of life, liberty, or property, without due process of law” supported that view because slaves were deprived of their liberty without a court hearing.49 Weld’s construction of “due process of law” was in sharp contrast to the southern interpretation of that phrase, which was that a federal law barring slavery would deprive masters of their property without due process of law.50 Another important component of Weld’s argument was that the federal government owed a duty of equal protection to everyone who was subject to its jurisdiction. He explained that it was “an axiom of the civilized world, and a maxim even with savages, that allegiance and protection are reciprocal and correlative.”51 As a result, some “protection is the CONSTITU TIONAL RIGHT of every human being under the exclusive jurisdiction of Congress who has not forfeited it by crime.”52 This contention built on an unsuccessful argument made in a widely publicized case from Connecticut. African Americans challenging a discriminatory state law on education there said, “All writers agree that allegiance demands obedience from the citizen and protection from the government. If allegiance is due from our colored population, its correlative is due from the government . . . protection and equal laws.”53 The final weapon in the abolitionist arsenal was the Privileges and Immunities Clause of the Constitution, which held that “[t]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”54 There were many ugly incidents of mob violence in the 1830s against anti-slavery activists. In 1836, a racist crowd attacked the office of the Cincinnati Philanthropist and threw its press and fonts into the Ohio River—an attack that had a powerful impact on Salmon P. Chase, a young attorney who was at the scene and would later become one of Bingham’s allies.55 A year later, vigilantes in Illinois killed Elijah Lovejoy for defending his radical press.56 State statutes enacted in the 1830s matched these private acts of repression by restricting anti-slavery speech.57 The problem was that slavery was threatened by freedom, as Lincoln famously explained in 1858 when he said this “government cannot endure permanently half slave and half free. I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other.”58 One reason why abolitionists could be censored is that the First Amendment did not apply to state governments. In Barron v. Baltimore,

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an 1833 case, Chief Justice Marshall ruled that the Takings Clause of the Fifth Amendment restrained only the federal government—a rule that flowed from a broader insight that the Founding Fathers did not write the Bill of Rights with states in mind.59 The Anti-Federalists, who did not support the Constitution’s ratification, thought that the new national institutions would abuse their power unless specific limits were written into the text.60 State governments, by contrast, were familiar and received the benefit of the doubt when it came to personal liberty. Abolitionists did not share this attitude by the 1830s, and hence they scoured the Constitution for something that could protect their right to dissent. Their answer was that the Privileges and Immunities Clause should be read as a guarantee of fundamental rights from all levels of government.61 A more natural reading of this text was that a state could not discriminate against people from another state by giving them different rights under state law, but abolitionists contended that “privileges and immunities of citizens in the several States” meant “privileges and immunities of citizens of the United States in the several states.”62 This “ellipsis,” which was how Bingham described this interpretation, was a reading borne of necessity that would cause some confusion when he wrote the first draft of the Fourteenth Amendment in 1866.63 The due process, equal protection, and privileges and immunities theory would be refined in the coming years, but the basic framework that Bingham would use thirty years later emerged while he was at Franklin College.64 And there is every reason to think that he was aware of these ideas then. In 1837, the Cadiz Anti-Slavery Society issued this statement that was published in the Philanthropist: Resolved that while the advocates of emancipation are charged by slaveholders and their abettors, with endeavoring to destroy this Union, they themselves are the very men who are outraging it by destroying its basis, viz–the Constitution of the United States, which declares that “no law shall be made abridging the liberty of speech or of the press” and also that “the citizens of any one State, are entitled to all the privileges and immunities of citizens in the several States” and further that “no person shall be deprived of life, liberty or property without due process of Law.”65

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Except for equal protection, all of the hallmarks of abolitionist constitutionalism are in this resolution. Coming as this did from an adjacent town that was Bingham’s second home, it is fair to assume that he saw this document as a student. Even if he did not, Bingham did not create the text in Section One of the Fourteenth Amendment from scratch.66 He would, though, be one of the greatest champions of the libertarian and egalitarian ideals expressed by his neighbors in Cadiz.

Becoming a Lawyer In 1837, Bingham left Franklin College due to illness and returned to Mercer.67 Although he never went back, Bingham maintained a close connection to the school throughout his life. He spoke to its literary societies in 1851, was named a professor of political science and lecturer on international law in 1870, and was awarded an honorary doctorate in 1873.68 And when he was eighty, Franklin’s most famous alumnus returned one last time to address the students about his faith, stating that while atheists “ridicule my belief in a future life, I think I have the better of them. If I am mistaken, I shall never be conscious of it; neither will they. If they are mistaken, I shall be conscious of it and so will they.”69 A year after leaving college, at age twenty-three, Bingham began studying law. In those days, Ohio and Pennsylvania required attorneys to serve a two-year apprenticeship and to pass an oral exam to obtain a license.70 Bingham did his training in Mercer with John J. Pearson and William Stewart.71 Pearson was an ex-Whig congressman and the man in the local debating society who had told Bingham to go to college.72 Stewart was a state senator and eventually joined Bingham in Congress.73 There is no information on what Bingham did at Pearson and Stewart, but to earn extra money during his apprenticeship he tutored children. Bingham was admitted to the Pennsylvania bar in 1840.74 With the guidance of Chauncey Dewey, Edwin M. Stanton’s law partner, he also became a member of the Ohio bar in 1841.75 With his education virtually complete, Bingham moved back to Cadiz in 1840.76 He would spend the next fourteen years building his legal practice, raising a family, and making a name in state politics as a reliable party man and a cautious critic of slavery.

3 lawyer and whig Resolved, That the Whig party, through its representatives here, agrees to abide by the nomination of General Zachary Taylor, on condition that he will accept the nomination as the candidate of the Whig party, and adhere to its great fundamental principles—no extension of slave territory, no acquisition of foreign territory by conquest, protection to American industry, and opposition to Executive patronage. John A. Bingham, 1848

Like almost every young lawyer, John Bingham was eager to make contacts and establish a reputation when he returned to Cadiz. Politics was one way to accomplish those goals, and so before he could even practice law, Bingham took the stump for the Whigs in the 1840 presidential election. He stayed loyal to the Whig Party into the 1850s even as he worked as a grassroots activist against slavery. The tension between these roles became more acute over time because the Whigs were unwilling to alienate conservative voters, and Bingham’s unease about that posture reflected the views of many who thought that slavery was evil but felt that it must be tolerated for the sake of national unity.1 When he was not preoccupied by politics, Bingham honed his craft as an attorney, made friends in Ohio who would become his professional patrons, and started a family.

Edwin Stanton and the First Campaign The 1840 election was fought between William Henry Harrison, a war hero and favorite son of Ohio, and President Martin Van Buren, who succeeded Andrew Jackson as the Democratic leader in 1836.2 This was the Whig Party’s first good chance to win the White House, as the financial 20

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panic of 1837 had soured people on Van Buren.3 Reluctant to throw away this advantage, the Whigs decided to run an issue-free campaign that did not discuss slavery and was notable for “so much noise and so little sense.”4 On June 2, a Cadiz paper reported that “Mr. Jno. [sic] Bingham of Pennsylvania” addressed a Whig rally inside a fabricated log cabin that was meant to represent Harrison’s humble origins. (In fact, Harrison was the son of a rich plantation owner who signed the Declaration of Independence.)5 A week later, Bingham debated some Democrats in a nearby town and, according to a local Whig paper, won easily.6 He also spoke for the ticket in other Ohio counties and in Virginia.7 The high points of the campaign from Bingham’s point of view were his two debates with Edwin M. Stanton, which marked the start of a relationship that continued until Stanton’s death in 1869.8 Stanton was raised in Steubenville, about twenty-five miles east of Cadiz, and stated that when “he was a boy his father had—like the father of Hannibal against Rome—made him swear eternal hostility to slavery.”9 After graduating from nearby Kenyon College, he moved to Cadiz in 1836 and began his legal practice.10 The locals called him “Little Stanton,” as he was a short, stocky man with thick glasses and a full beard.11 He was active in the Cadiz Anti-Slavery Society, and Bingham wrote that they met when he was a student at Franklin, and Stanton “impressed me very much with his general intelligence.”12 Unlike Bingham, though, Stanton was a Democrat.13 People familiar with the Lincoln-Douglas debates know that political encounters in the nineteenth century were more raucous than they are now, and the contests between Bingham and Stanton were no different.14 Here is Bingham’s version of these events: [T]he debate was held at Wintersville, before an immense crowd, in a grove. I charged Van Buren, Stanton’s candidate, with having violated the U.S. Constitution. Almost everything was reduced to a Constitutional question, in those days. I read from a pocket edition I carried, the article violated. Stanton had an hour to open; and I followed for an hour and a half; and then he closed in half an hour. He used a ponderous volume of State Papers, having a copy of the Constitution in the back of it. And he read his copy, denouncing mine as spurious. But he skipped a line in reading it; and when he closed I had no right to reply. But I was mad

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Edwin M. Stanton, Bingham’s debate opponent in 1840 and the secretary of war under Presidents Lincoln and Johnson. Library of Congress.

and I got on a chair on the platform and charged him with skipping the line and challenged him to another debate. He said that he had to go to Virginia, just across the river, on business the day I named and could not meet me then. And so the meeting broke up in a row. The challenge, however, was renewed, I think, through the papers; and Stanton accepted then; and we debated once more, this time at Bloomfield, in a grove, and before another large crowd.15

In another telling of the story, Bingham said that Stanton’s “friends, acting in concert, overturned our platform, tumbling down . . . myself, books, papers, chairs and everything else in one heap.”16 He was particularly irritated that Stanton charged him with distorting the Constitution, as “I was

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then and always against any mutilation whatever of that great instrument, which has placed us politically ahead of all other Nations of the earth.”17 While accounts of Bingham’s rhetorical style in these early years are almost nonexistent, the one that we do have is consistent with the impression that he made on audiences later in his career. Walter Shotwell, whose father attended Franklin College with Bingham, said that he possessed a “voice of great carrying power. In speaking, he usually commenced low, in a mere conversational tone of voice, thus commanding, because requiring, attention to hear him; but as he proceeded and warmed to his subject, his voice increased in volume, till it rang out in clarion notes, that could be heard to the farthest corner of a great hall or the remotest limit of an open-air meeting.”18 When he spoke, his “earnestness often amounted to intensity and his sarcasm was keen and cutting. His gestures were natural and graceful and to a handsome figure, always dressed in good taste, he united a graceful manner. Though he was not a wit and did not attempt to be, . . . his earnestness and telling hits often provoked the wildest enthusiasm in his audience. Politics to him was always a serious business.”19 The last point was certainly true—Bingham was not a man with a lively sense of humor. There are almost no sources that describe him telling a joke or an amusing tale, and when he tried to be funny in public, the effort usually fell flat. The 1840 campaign ended in a landslide for the Whigs and marked Bingham as an up-and-comer in local politics.20 Shortly after the election, he was appointed to the Whig Central Committee in Harrison County.21 In 1841, he served as a delegate to the Whig State Senate Convention.22 That conclave chose Josiah Scott, a Franklin alumnus who was Bingham’s law partner and future brother-in-law, for the state legislature and Chauncey Dewey, his Cadiz mentor, for the state Senate.23 Bingham worked hard for both men, and they were elected.24 The next year he addressed the state party convention in Columbus, although 1842 was a poor year for Whig candidates following the death of President Harrison in 1841.25

Private Practice and Personal Joy Partisan organizing did not pay the bills though, so in 1841 Bingham and Josiah Scott founded the firm of Scott and Bingham in Cadiz.26 Scott was married to one of Uncle Thomas Bingham’s daughters and

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served as the prosecutor in Harrison County prior to his election to the legislature.27 Though Scott was a prominent local lawyer, at least one source describes him as “indolent,” which might explain why Scott and Bingham was never a thriving practice.28 Dewey and Stanton was the leading firm in town, and much of Bingham’s business came from a part-time job as the Harrison County commissioner of bankrupts.29 In 1843, Bingham moved to New Philadelphia, in neighboring Tuscarawas County, and established a partnership with another lawyer there, though he continued to work with Scott and kept an office in Cadiz.30 A review of Bingham’s files shows that his practice consisted largely of run-of-the-mill property and contract cases.31 He drafted wills, represented buyers and sellers of land, and handled business disputes.32 Sometimes he took on a criminal case, with the most fascinating example coming in a murder trial where he thought he would go head-tohead with Stanton.33 Bingham was assisting the prosecutor, and Stanton was defense counsel.34 Worried about the impact that Bingham’s closing statement might have on the jury, Stanton let the prosecutor make his presentation and then “waived his right to argue the case, for his client, and thereby, under the law, deprived Bingham of the right to speak. He thus cut Bingham out of all part in the closing scene,—indeed the very part for which he had been specially employed. But Bingham took it all good-humoredly and laughed when he recalled it.”35 (This story does not tell us who won.) Bingham and Stanton would not cross paths again until the Civil War, as Stanton moved to Pittsburgh in 1847 and then settled in Washington as one of the nation’s most respected attorneys.36 Bingham’s legal work was solid but did not make him rich.37 He argued at least seven cases before the Ohio Supreme Court, but his only significant client was the Ohio Life Insurance and Trust Company, which was a small bank.38 The accusation leveled by some critics in the twentieth century that he was a “railroad lawyer” is false.39 There is no proof that Bingham ever represented a railroad, although he did bring at least one lawsuit against a railroad. The only notable case that Bingham handled was Jordan v. Smith,40 which concerned an African American woman who wanted to avoid paying a debt she allegedly owed to a white man. The creditor’s only evidence that she was the debtor was the testimony of another African American who signed the note.41

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Bingham argued that this evidence was inadmissible because an Ohio statute barred African Americans from testifying in any litigation where a white person was a party.42 The Ohio Supreme Court held in 1846 that Bingham’s position was correct, though the author of the opinion went out of his way to criticize the statute, stating that there was no doubt that the creditor “has a good cause of action, and ought to recover the money. . . . And the only reason he cannot prove it is that his witness is rendered incompetent by the operation of the law of 1807. . . . I cannot recollect a single case in which this law has been found subservient to the ends of justice.”43 Bingham’s willingness to represent an African American woman was laudable, and he got the result that she wanted, but he was not making a civil rights argument in Jordan. As Bingham’s professional life progressed, he also found happiness at home. In June 1844, he married his first cousin Amanda at a church in Cadiz.44 While they met when she was a toddler and knew each other well, we do not know Amanda Bingham well. Her letters are charming but not revealing.45 She was nineteen when they wed and attended the same Associate Reformed Church that Bingham did when he lived with her father. Since John and Amanda were relatives, shared the same faith, and resided in the same town for much of their youth, it is fair to guess that they shared a common outlook on life. Their bond was deep and loving, even as they endured the loss of six of their eight children, an awful ratio even in that era.46 A few weeks before their wedding, John gave his fiancée an inscribed volume of poetry bound in leather and edged in gold, which he kept after she passed away.47 Bingham took his new bride to New Philadelphia, and their first daughter, Lucinda, was born in 1845.48 The most illuminating descriptions of Amanda come from her obituaries in the local papers that knew her best. For instance, the Cadiz Republican noted: For nearly half a century she was the companion of one who held the highest positions of honor and trust among his countrymen, and she helped greatly to relieve the burdens and cares of his public life, by the faithful discharge of her duties in the home. She was with her husband, in all his travels, both in this and in other lands. She was a most affectionate mother, watching over the health and morals of her children with

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Amanda Bingham in old age. Harrison County Historical Society.

jealous care, and she was also spared to give counsel to those removed by one generation from her—her grandchildren who spent much of their time in her pleasant home.49

The Cadiz Sentinel offered another tribute, explaining that when her husband served as the U.S. ambassador to Japan, Amanda “faithfully represented American and Christian womanhood, and left an impression upon society there which reflects honor upon her sex, and an influence whose good cannot be calculated. She was a keen observer, with discriminating judgment, and it is with pleasure we recall her observations of life in this far off country.”50 It is a shame that these death notices are the only clear windows that we have into the person who meant more to Bingham than anyone else.

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Anti-slavery Man and Party Regular Even though Bingham was a seasoned political operative who seized every available opportunity to make his opinions known, he made no recorded public statements about slavery until 1848.51 This silence is curious because he campaigned for Henry Clay, the pro-slavery Whig presidential candidate who was defeated in 1844, with one Democratic paper calling Bingham “the notorious blackguard from New Philadelphia.”52 Evidently Bingham was not troubled that Clay owned slaves on his Kentucky plantation, although he may have just thought that Clay was better than the Democratic candidate, James K. Polk.53 Without more information, one might wonder if Bingham was against slavery at this point in his life. An 1845 letter from Bingham to Salmon P. Chase dispels any doubt about the intensity of his feelings.54 This letter, which has never been quoted before, is significant for three reasons. First, it proves that as a young man Bingham was in touch with Chase, a leading anti-slavery lawyer who constructed “an interpretation of American history which convinced thousands of northerners that anti-slavery was the intended policy of the founders of the nation.”55 Chase and Bingham were not close friends, but Chase loomed over Bingham’s career as the governor of Ohio in the 1850s, the Treasury secretary in the 1860s, and as the chief justice of the United States who presided over Andrew Johnson’s impeachment trial in 1868.56 Second, the letter to Chase contains the first direct evidence of Bingham’s views that we know about. Third, this document gives us a glimpse into his idealism when electoral considerations were absent. While there is no context for the letter except that Bingham was thanking Chase for sending some anti-slavery literature, he replied with a mix of exasperation and hope: We try to be as active as possible, in efforts to advance the cause, though we labor under many discouragements. The counties of Scioto, Lawrence, Jackson, Gallia, and Meigs, are collectively, perhaps as inveterately Proslavery, as the same number of contiguous counties anywhere else in the State. If there be any portion of the Ohio field demanding a greater share of anti-slavery Labor than any other, it would seem that these

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Salmon P. Chase, Bingham’s anti-slavery colleague and the chief justice of the United States. Library of Congress.

central frontier counties embrace that portion, and yet we have been wholly neglected. Not a single Lecturer, document, or even extra newspaper has ever, to my knowledge, been sent into either of these counties, or any other kind of labor bestowed under the State Society’s patronage. We have felt entirely neglected, and not a little surprised that the Committee should have found time to bestow so much notice upon us as to direct three copies of their circular to the Post Office at Pine Grove. For myself, hoping against hope I almost felt like hailing the circumstance as the harbinger of better days. . . . No doubt an immense amount of good might be done here, just in this very neighborhood, by the single week’s labor of a good Speaker; it strikes me this is the very spot where an [effort] should be made. Being 10 miles from Gallipolis, back from the

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river, just far enough from that miserable pro-slavery atmosphere to be able to take breath without the danger of suffocation, and having already, by dint of effort, obtained an under-current in our favor if we can once make a demonstration here, the influence will be seen and felt throughout the five counties named, and I have no doubt some important effect will be produced indirectly upon the future course of our member of Congress. I pray you if possible, send us a laborer for a short time this fall, one who has a missionary spirit, whose heart and soul is in the cause; who will be willing to address small meetings or large ones, who will go from neighborhood to neighborhood, from one appointment to another for a few days until this half-dead community shall begin to wake up and show signs of life.57

Bingham concluded by urging Chase to focus on rural areas, because city dwellers were “entirely too fashionable—and it is just as difficult to get them to lay aside fashionable politics, as the fashionable . . . coat, or frock, or pair of breeches. In the country we [are] not so accustomed to ape the fashions of the great, and considerations founded on moral truth and patriotism have more easy access to the heart and conscience, and produce more corresponding action.”58 This note is written in a tone shared by every impatient human rights advocate, but Bingham’s public and private stance on slavery in 1845 does raise questions. After all, many of the “half-dead” or “fashionable” people that he denounced were in the Whig Party that he supported. How could he reconcile those positions? Furthermore, Bingham was working with Chase and his colleagues privately, but would not embrace their more radical positions publicly by joining the Liberty Party in 1844 or the Free Soil Party in 1848, both of which took a much tougher line against slavery than the Whigs did. Why not? These inconsistencies would work themselves out in the coming years. After years of campaigning for Whig candidates, Bingham finally became one in 1846. He ran for prosecutor of Tuscarawas County and won with 55 percent of the vote.59 Unlike a modern prosecutor, he served in only a part-time capacity and continued in his private practice. Nothing is known about what Bingham did in office, but his vote total fell to 50.5 percent when he was reelected in 1848.60 In that same year, he was a delegate at the Whig State Convention and helped draft

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a resolution that attacked the Mexican-American War and condemned President Polk.61 A draft speech in Bingham’s papers stated that the war was not the product of “the Democracy which Jefferson taught when he said that all men are created equal. . . . [T]his new democracy is the democracy of kings; it is simply despotism—its breath of life is war and conquest and slavery.”62 Years of dogged effort for the state party finally paid off when Bingham was asked to join the Ohio delegation at the Whig National Convention in Philadelphia.63 The local party asked him to vote for General Winfield Scott as the Whig presidential candidate, and Bingham followed that instruction even though he preferred Supreme Court justice John McLean.64 On the fourth ballot, the nomination went to General Zachary Taylor, who defeated the Mexican dictator Santa Anna at the Battle of Buena Vista and was acceptable to southerners because he owned slaves.65 Taylor was an ideal compromise choice because he had never voted or offered any opinions.66 Most Whigs wanted to repeat their winning formula of 1840: run a war hero and avoid the issues. Disgruntled anti-slavery delegates would not go down without a fight, though, and Bingham was their spokesman.67 He gained recognition on the convention floor and stated that he did “not wish to excite unpleasant feelings between friends of the various candidates whose claims have been before the Convention,” but then he did exactly that by introducing the platform plank quoted at the beginning of this chapter that opposed the extension of slavery to the territories.68 Bedlam broke out. The chair ruled Bingham out of order and proceeded to the vice presidential nomination over the catcalls of northern delegates.69 One Massachusetts man yelled that he would “do all I can to defeat” Taylor.70 To soothe these ruffled feelings, the convention selected Millard Fillmore, an ex-congressman from New York, as General Taylor’s running mate.71 Bingham told an Ohio newspaper that after Fillmore’s nomination he “would have again presented the resolution, but . . . was advised by members of the Ohio Delegation not to do so. For myself, I felt assured that the principles embraced in the resolution accorded with the cherished opinions of the Convention and of the Whig party. The omission by the Convention to give free expression to those principles, argues no abandonment of them, [and] neither will the election of Taylor and Fillmore be a surrender of them.”72

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During the general election, Bingham claimed that the Whig Party and its nominee supported his anti-slavery resolution. On the Fourth of July, he gave an address in New Philadelphia stating that Taylor opposed the extension of slavery, which led one local paper to ask why, then, did the convention refuse to consider Bingham’s plank?73 One possible explanation for Bingham’s position was that he wanted to reassure anti-slavery Whigs who were tempted to vote for Martin Van Buren, the candidate of the Free Soil Party. Although Van Buren had supported slavery as president, he was now running on a platform— drafted by Salmon Chase—that expressly opposed its expansion in the territories.74 In a close race, any defections by voters willing to take a chance on Van Buren’s third-party bid could cost the Whigs dearly. In this climate, it should come as no surprise that Bingham challenged Van Buren’s supporters. He debated a Free Soil speaker in Cadiz on August 21, but the only account of that fight comes from a Democratic paper that said it had not seen a “political speaker more completely floored than was John A. Bingham on that occasion. . . . Every racy anecdote was turned upon him, and the last vestige of Taylor fur was scratched from his miserable carcass.”75 One month later, Bingham allegedly called the Free Soil Party a bunch of “crazy idealists.”76 It is impossible to verify the accuracy of this quote, which first surfaced in the midst of Bingham’s congressional campaign six years later.77 What is clear is that any concerns that Bingham had about Free Soil inroads into the Whig vote were justified. While Taylor won the election, he lost Ohio in part because Van Buren took six counties.78 One happy by-product of that vote, though, was that a Whig/Free Soil majority was elected to the Ohio legislature and sent Salmon Chase to the U.S. Senate.79

The Fugitive Slave Act of 1850 Sometime in 1849 or 1850, Bingham resigned as Tuscarawas County prosecutor and moved his family to Cincinnati.80 It is unclear why he made this decision, which was out of character for someone who had never ventured far from Mercer or Cadiz. He may have thought that he needed to make more money with the birth of his second child, Emma, in 1849 and that a big city was the place to do that.81 Or he may have

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imagined a brighter political future in another part of the state. In any event, the Cincinnati experiment was short-lived.82 In 1851, the Binghams went back to Cadiz, and the town where they met would remain their primary home for the rest of their lives. The only major event that occurred during Bingham’s stay in Cincinnati was his participation in an assembly that backed the Compromise of 1850. When California petitioned Congress to enter the Union as a free state, southerners strongly objected because that would violate the informal custom that there should always be an equal number of free and slave states in the Senate.83 A deal was brokered that admitted California but made concessions to the South, the most controversial being a new Fugitive Slave Act giving slave owners more authority to recover their property.84 This dreadful law gave appointed federal commissioners the power to draft people to help retrieve runaway slaves. If a suspected fugitive was taken, these commissioners then held a summary hearing (without a jury) where the suspect was not allowed to testify that he was, for example, a free man living in the North. Worst of all, the commissioner was paid ten dollars if he found that a suspect was a slave, but only five if that man was released.85 Abolitionists were outraged, and Senator Chase voted against the act.86 Bingham wrote Chase to tell him that “[w]e hope to lay the foundation for improvement in this pro-slavery part of the State. I have thought we had been . . . shut out from the sympathies of reformers. The Fug. Bill kicks up the dust. All men, who have souls are indignant.”87 While Bingham felt free to attack the Fugitive Slave Act in private, his public soul was not indignant. In November 1850, the city fathers in Cincinnati called a meeting to urge their citizens to respect the law and support the compromise.88 Bingham was on a committee that drafted a set of resolutions that were (according to a news report at the time) approved unanimously. Two of these resolutions stated as follows: Resolved, That we utterly condemn and will oppose all forcible resistance to the execution of the law of the General Government for the recapture of fugitives owing service or labor—that we regard such law as constitutional—in accordance with the compromise which formed the Union, and that we will sustain and enforce it by all proper and legal means, as a matter of constitutional compromise and obligation.

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Resolved, That we regard any further agitation of the slave question in Congress or among the people of the States where slavery does not exist, as unwise—productive of mischief—awakening sectional animosities, and that no man who continues the agitation of such question to the disturbance of the peace and quiet of the country, is entitled to public confidence or should be elevated to any office or honor or trust either in the State or general government.

When these resolutions were presented to the assembly, Bingham explained why he supported them. A journalist in attendance wrote: Mr. Bingham was then called upon, and in a most eloquent and feeling manner referred to the prophetic admonitions of Washington, Jackson, and other great men, to suffer no appeals engendering sectional prejudice, and weaken attachment to our Union. That the laws must be obeyed and enforced so long as they stand unrepealed upon the statute book, whether they agree or not with the peculiar notions of any individual or set of persons. That those who so much abuse our Constitution and government on account of slavery, should remember that slavery existed here prior to the Union or Constitution; that the very first check to slavery was given by this much-abused Constitution; that under its operation, and the benign influence of the Union, slavery melted away from the hills of New England. The Empire State and the great North-West were protected against slavery under the [Northwest Ordinance], in conformity with the spirit of both; that all should unite in support of the Union and the laws against the attempted inroads of Northern Nullifiers.

A few days later, however, Bingham wrote a friend and complained that this story was inaccurate.89 He stated that he dissented from the resolution that called for no changes to the Fugitive Slave Act. The act “is no favorite of mine, but I deny the right claimed by some to resist it by force, and set at naught its provisions.”90 Nevertheless, he did not say that he thought the act was unconstitutional or should be repealed. Bingham’s support for the Fugitive Slave Act was a source of embarrassment after he was elected to Congress, and in 1860 he offered this explanation to the House of Representatives:

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Mr. BINGHAM: I understand my colleague to make the remark that in the year 1850, I approved of the fugitive slave act. I beg leave to say that my colleague has fallen unintentionally into a great mistake in reference to that. In 1850, according to my recollection, and I do not think that I am mistaken, there was a convention in session in the city of Nashville which had for its avowed object the disruption and destruction of the American Union and Constitution. A convention was called in Cincinnati for the purpose of denouncing— SEVERAL VOICES: That is not so. Mr. COX: I ask you simply whether you sustained the fugitive slave law? Mr. BINGHAM: I tell the gentleman that I did no such thing. . . .  Mr. COX: Then, sir, you were wrongly reported in the city papers. Mr. BINGHAM: And in the same city paper I am reported as dissenting openly and publicly in that speech to a resolution which declared that law constitutional; and I dissent from it today as I did then. The speech to which I refer was very imperfectly reported in the papers. Mr. COX: Oh! [T]hat was it! . . .91

Instead of admitting that he changed his mind about the Fugitive Slave Act, Bingham misled his colleagues.92 There is no news report describing a dissent to the Cincinnati resolutions—that omission was what motivated Bingham’s letter written to his friend after the meeting. Furthermore, in 1860 he said that he had rejected the constitutionality of the Fugitive Slave Act, when his complaint in 1850 was only about whether the act should be left unchanged. It would be unsurprising if Bingham regretted the stand that he took in Cincinnati as he looked back a decade later, but that does not change what he did.

The Franklin Literary Society Speech Upon his return to Cadiz, Bingham reestablished the legal and political relationships that he had nurtured a decade earlier. He went back into practice with his brother-in-law and continued to see clients in New Philadelphia.93 At the same time, he resumed his party work and was mentioned by one newspaper as a possible Whig candidate for governor.94 When an elective judgeship for Harrison, Jefferson, and Tuscarawas

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Counties came open in 1851, he threw his hat in the ring and was nominated.95 Local Democrats responded with a barrage of attacks, calling Bingham “an unscrupulous politician . . . famed for nothing but abuse of democrats”96 and a demagogue known only for his “mendacity and blackguardism.”97 In the midst of the campaign, Bingham returned to Franklin College to speak to its literary societies about slavery.98 Though he told the students that he “came not here to utter the language of the demagogue, or to advance the selfish projects of the partizan [sic],” the fact is that he was a candidate making a speech to voters in Harrison County.99 Apart from its immediate political context, Bingham’s lecture deserves special attention because it is the first statement of his constitutional views. The theme of Bingham’s speech at Franklin was that liberty was the source of American greatness and that slavery was the enemy of progress.100 He began by touting our natural wonders and asked: “What would this magnificent heritage be, without a free Government, free men, free thought, and free labor? A world without a sun.”101 Bingham stated that “[a]nterior to our sublime Declaration of Independence—anterior to that great day when on the last battle field of the Revolution, the young Republic was dedicated in a baptism of fire and blood to freedom and to man, there was not anywhere upon the globe, a state, which by its fundamental law recognized the political equality of the human race.” This equality principle went hand in hand with “the liberty whereof John Milton spake when he said ‘give me the liberty to know, to argue, and to utter freely according to conscience, above all liberties.’”102 That liberty was “recognized and incorporated in the fundamental law of our own country. Our free American Constitution, contemplates all men as equal—and is intended, however it may be perverted by its enemies—to protect all in the enjoyment of their natural rights.”103 After listing “freedom of the press, the freedom of speech and of conscience, and the right of trial by jury” as fundamental freedoms, he added that “[t]he principle which informs this Constitution of ours and makes up its very vitality, is the political equality of the human race, a full recognition of the truth, that God has made of one blood all nations of men.”104 Bingham’s emphasis on equality stands out, as does his reference to three freedoms listed in the Bill of Rights. He then contrasted this sunny picture “of our free, written, Constitution, and its free spirit” with chattel slavery.105 “I know that there is within our borders, but unhappily beyond the control of our

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Government,” Bingham explained, “[a] vestige of that sum of human villainy, involuntary servitude,—that system of oppression and horrid cruelty, which fetters the spirit which God made to be free, to aspire, not to crawl, to hope, not to despair.”106 “This is a foul wrong,” he continued, “which despotism fastened upon us in the day of our humiliation and vassalage [under the British], but for the continuance of which, no apology can be made. It is foreign alike to the spirit of our government, and the spirit of our religion. It is a stupendous imposture, a sham, a lie, which cannot endure.” While this was the strongest condemnation of slavery that Bingham had uttered in public, it came with a significant qualification. He accepted that the federal government did not have the power to abolish slavery in a state, which was the prevailing constitutional view until the ratification of the Thirteenth Amendment in 1865. While attacking slavery as a lie, Bingham urged his audience not to lose faith. As in his Cincinnati speech, Bingham rejected the argument that “we should despair of the Republic” and asked, “Is there not cause rather for encouragement?”107 After all, freedom was in a much stronger position in 1851 than it was on July 4, 1776: At that day the whole Continent was under the law of Slavery. The horrid Slaver floated on every sea. There was no free Press; no free thought; no free labor; no free school; no free church; no free men! Thought was in chains, Labor was in chains, Religion was in chains, and Man was in chains. Our Constitution first proclaimed freedom on the seas and maintained it there, declaring by statute, the traffic in the souls and bodies of men under our flag to be piracy, punishable with death. That Constitution, also, first secured the freedom of the Press, of Thought, of Conscience and of Labor. At its bidding the fetter fell from the limbs of the Bondman, as though touched by the Angel of Freedom, over all of the hills of New England, over the great States of New York, Pennsylvania, and New Jersey. And has not this free Constitution guarantied Constitutional Liberty to the whole Northwest from the banks of our own beautiful Ohio, away to the golden gates of the Pacific?108

Bingham’s attitude was that “our system of free government, free thought and free labor” would prevail and “protect, reward, and encourage honest toil.”109

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In Cincinnati Bingham had challenged “the inroads of Northern Nullifiers,” but now he focused his attention on southerners who wanted “[t]o extend the area of human slavery, and to maintain the equilibrium of parties!”110 “[T]he cry of disunion is raised,” he contended. “That hated word is heard in our Capitol. Base men whisper it like gibbering ghosts on the very hearth stone of the Republic. State Conventions and Southern Congresses, are called to compass treason against the Union.”111 Bingham warned that if the Compromise of 1850 unraveled, that would lead “to the darkening shadows, the confused noise, the strife and conflict, the agony, the tears, the blood and the terrible death of battle.”112 Through that “courage which is fearless in right, and which is afraid only to do wrong,” he concluded, “we will resist at all hazards, those who band together for conquest of Empire, the extension of Slavery and the final overthrow of the Union of these States.”113 In the Franklin College Address, Bingham made his first effort to blend his anti-slavery ideals with practical politics. He set forth an inspiring constitutional vision based on equality and the protection of at least some rights for all Americans, which would be at the heart of Section One of the Fourteenth Amendment. But Bingham also went out of his way to reassure skeptics by making it plain that nothing would happen anytime soon. Congress could not abolish slavery within the states, and the Compromise of 1850 should be respected. The only line in the sand that he was willing to draw was that slavery must not be expanded. To the extent that this speech was intended to help Bingham’s judicial campaign, though, it did not work. He lost all three counties to his Democratic foe.114 One paper gloated over his defeat: “We thought there was more respect felt by the people for the purity of the judicial ermine than to entrust it in the keeping of a narrow minded political profligate, and the result shows we were not mistaken. The squad of political traders who ‘imported’ Bingham . . . made a bad speculation this time.”115

The Death of the Whig Party Over the next two years, Bingham lowered his public profile and concentrated on his work and family life. John and Amanda’s third child, Marie, was born in 1852, and he did not attend the Whig Party Convention in Baltimore.116 Zachary Taylor had died in 1850, and the delegates

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turned to General Winfield Scott as their presidential choice.117 After the convention, Bingham spoke in Cadiz at a rally for Scott and wrote a resolution that was endorsed by the Harrison County Whigs stating that they were “opposed to slavery, and will use all honorable means under the Constitution to prevent its introduction into Territory where it does not exist.”118 The resolution added that “all constitutional means” should be used “to prevent the admission of new Slave States into the Union—also, to prevent the acquisition of additional Slave Territory, and to abolish slavery in the District of Columbia, and that we are in favor of such amendment to the Fugitive Slave Law as good policy and good faith to all parts of the country may require.” This statement of principles contradicted the national platform. The Whig Convention had backed the Compromise of 1850, but Bingham’s resolution called for the abolition of slavery in the District of Columbia, which was barred by the compromise, and made a vague promise about changing the Fugitive Slave Act.119 That act of mutiny was essential, however, if Ohio Whigs were to survive. The Free Soil Party (now called the Free Democrats) was campaigning hard against the compromise, and its presidential candidate, James Hale, was an attractive option for Whig-leaning voters.120 The campaign was a disaster for the Whigs. Winfield Scott lost in a landslide to Franklin Pierce, the Democratic nominee, and failed to carry Ohio because of the Free Democratic vote.121 The Whig Party was hopelessly divided, though that was more obvious in hindsight. A year later, the Whig gubernatorial candidate in Ohio was badly beaten, and the Free Democratic share of the vote jumped again.122 Bingham’s reaction was telling: he withdrew from politics.123 He played a less active role for Scott than he had for prior presidential nominees, and there is no sign that he did anything for the state ticket in 1853.124 We do not know why Bingham fell silent. Maybe he was rethinking his devotion to the Whigs. Or maybe he was waiting for the right opportunity to come along.

4 republican congressman We are happy to announce the nomination of Mr. Bingham, of Cadiz, as the Anti-Nebraska candidate for Congress from the 21st district, composed of Carroll, Columbiana, Harrison and Jefferson. We have great confidence in his election. Two years ago, the Whig and Free Soil vote was 8,105, while the [Democratic] vote was 7,423. We have no doubt this vote will be united, and that Bingham will have a handsome majority. He is an able lawyer, an eloquent debater, and a true friend of the North. Daily Cleveland Herald, 1854

The passage of the Kansas-Nebraska Act opened the door for John Bingham’s rise to power. In January 1854, Senator Stephen Douglas of Illinois proposed a bill to allow slavery in those territories if the inhabitants there so desired and thereby repeal the Missouri Compromise of 1820, which excluded human property from any territory north of 36.5 degrees latitude (36°30´).1 This provocative expansion of slavery convinced many moderates in the North that compromise with the South was now impossible.2 Bingham seized on this shift in public sentiment and severed his ties with the Whigs to run as a Republican. Soon after his arrival on Capitol Hill in 1855, he became one of the party’s leading lights and spent the next four years articulating an anti-slavery interpretation of the Constitution that became the nucleus of Section One of the Fourteenth Amendment.

The 1854 Congressional Election Feelings ran high in Cadiz following the introduction of the KansasNebraska bill. On March 14, Bingham spoke out at a town meeting

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that endorsed a series of resolutions opposing the legislation and stating that from now on the community would “oppose any compromise on the subject of slavery, and we now affirm uncompromising hostility to slavery and slavery apologists.”3 After the act was signed into law, another meeting was held at the courthouse in support of resistance to the settlement of Kansas by slaveholders “in whatever manner it be possible for us to as men and Christians.”4 Bingham addressed this gathering as well, and a Democratic paper in Cadiz reported that he had now gone “completely over to the abolitionists.”5 In July 1854, more than a thousand Whigs, Democrats, and Free Soil delegates united by their anger at the Kansas-Nebraska Act met in Columbus at what was the first Ohio Republican Party Convention, though they called themselves the “Anti-Nebraska” party.6 Bingham won a seat on the convention’s Central Committee and immediately began campaigning for the Anti-Nebraska congressional nomination from the district containing Cadiz. When the local party convened in September, he was chosen on the eighth ballot (defeating, among others, his brother-in-law Josiah Scott).7 Democrats charged that Bingham was a Johnny-come-lately who had supported slaveholding candidates and had campaigned against Free Soil advocates in previous elections.8 This attack was true, but he also had a consistent record of opposing the expansion of slavery. When the Kansas-Nebraska Act crossed that line, Bingham’s position became a rallying point for a majority of Ohio voters. In a letter to the Cadiz Republican, Bingham kicked off his campaign by arguing that the existence of slavery within the southern states was “not by virtue of the United States Constitution, but independent of it,” and that he was “opposed to any further extension of slavery.”9 This was not a departure from his view that Congress lacked the power to abolish slavery in a state, though his new formulation dodged the question of whether the Constitution actually endorsed slavery. With respect to the Fugitive Slave Act, Bingham reversed his position, now declaring that the statute was “violative alike of the Constitution and of that justice which it was intended to secure.”10 Moreover, he now held that the Constitution did not give Congress the “power to pass any law authorizing slavery in any Territory of the United States,” which meant that neither the Missouri Compromise nor the Compromise of 1850 was constitutional.11 While Bingham clearly believed that slavery should not

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be extended, politically he had to do more than seek a repeal of the Kansas-Nebraska Act because his Democratic opponent, Andrew Stuart, had voted against the act.12 Besides, Bingham needed to reassure more radical anti-slavery voters who were wary about his recent public shift toward their point of view.13 No other significant details of the campaign are known, but the Anti-Nebraska coalition won across Ohio, and Bingham was swept into office by a big margin. The Twenty-First Congressional District, which he represented until his first defeat in 1862, was made up of four rural counties with a population of about 100,000 people, most of whom earned their living from the wool trade.14 He carried all four of those counties and took 65 percent of the vote, which was the largest percentage that he would win in any race.15 Bingham’s victory was part of a wave that made the Anti-Nebraska members and independents a plurality in the House of Representatives.16 Democrats suffered a setback in 1854, but the Whigs were decimated and would not contest another national election. During this era, Congress was a part-time legislature, and new members did not take up their seats until December of the year after their election. This gave Bingham plenty of time to put his affairs in order before he embarked for Washington. In 1854, his fourth child and first son, Henry, was born, but sadly he died of pneumonia not long after the election.17 The rest of the family moved into an elegant brick house in Cadiz, where in the attic Bingham “had under the dome, with windows on all sides  .  .  .  a floor laid, surrounded by a balustrade and shut off from the house by a closed stairway and a door, to which he carried the key. It was a place of seclusion, to which he could retire for study and reflection.”18 He reorganized his legal practice so that he could continue representing clients while in Congress, which would be barred today as a conflict of interest but was common then.19 And there was lots of political spadework to do if the Anti-Nebraska Party wanted to continue as a significant political force. The first official Republican event in Ohio occurred on July 13, 1855, and introduced Bingham to many of the men who would shape his political fortunes.20 He was active at the convention and threw his support behind Salmon Chase as the party’s nominee for governor.21 Presiding over the meeting was John Sherman, who was also elected to the House in 1854.22

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Sherman came to see Bingham as a rival but conceded that he was “the most eloquent member of the Ohio delegation, and, perhaps with one or two exceptions, of the House of Representatives. . . . He was a man of genial, pleasing address, rather too much given to flights of oratory, but always a favorite with his colleagues and associates.”23 Nobody at the convention, however, would mean more to Bingham than Joshua R. Giddings.24 Like his young protégé, Giddings was born in the hill country of western Pennsylvania and raised in eastern Ohio.25 He became a lawyer and formed a firm with Benjamin Wade, who later became a leading Radical Republican senator.26 Elected to the House in 1838, Giddings bonded with John Quincy Adams, then the abolitionist leader in Congress.27 They fought together for years to repeal the “gag rule” that barred debate on anti-slavery petitions, and when the House censured Giddings for his criticism of slavery, he resigned his seat and was defiantly reelected by his constituents.28 After Adams died in 1848, Giddings took over his leadership role, drafting a widely read pamphlet called Appeal of the Independent Democrats in Congress that attacked the Kansas-Nebraska Act and spurred the creation of the Republican Party.29 In 1855, he was described as “so long known as an uncompromising opponent of Negro slavery in the United States that he is looked upon everywhere as a kind of moral hero.”30 Giddings took Bingham under his wing and was his closest professional confidant. They lived in the same boardinghouse in Washington when Congress was in session and often socialized together.31 Giddings’s biographer described Bingham as “a most genial companion, a fascinating speaker, a lover of poetry, and an extensive reader of books. . . . He loved [Giddings] as any son could love his own father.”32 Indeed, Bingham often called him “Father Giddings” in their correspondence.33 The older man reciprocated these feelings, once writing his wife that “Bingham has gone home. I feel lonely.”34 Later, Giddings told his son-in-law that he should “go straight to Bingham for advice and exhortation. He is a jewel of a man, true as steel.”35

Bleeding Kansas and Local Politics After campaigning for Chase’s successful race for governor, Bingham arrived in Washington in December 1855 and found himself caught

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Joshua Giddings, Bingham’s mentor in the House of Representatives. Library of Congress.

up in the longest contest for the Speaker’s gavel in the history of the House.36 The disintegration of the Whigs created an unusual situation where no party controlled a majority. As a result, the House took two months to organize and was chaotic throughout Bingham’s first term; a coalition was required to accomplish anything.37 That power vacuum gave a green congressman a once-in-a-lifetime opportunity to influence the national debate, but the opening came with risks—spectators and members were carrying loaded weapons into the chamber as if they were snuff.38 Five weeks into the Speakership deadlock, Bingham leapt into the fray by challenging William A. Richardson, the Democratic choice, with a series of questions about his views on the legality of slavery in the territories.39 He asked:

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1. Do you hold that the Constitution of the United States extends to, and is of full force within, the several Territories thereof? 2. Do you hold that the people of any of said Territories have the right to make any law within said Territories, whereby any person therein shall be deprived “of life or liberty,” except as punishment for crime on due conviction? 3. Do you hold that the people of the Territory of Kansas have the right, under the Constitution, to prohibit slavery within said Territory at all times, both before and after their organization into a State? 4. Do you hold that the people of said Territory, under the Constitution, have the power and the right to legalize slavery within said Territory by legislative enactment; and the further power and right thereby to protect and maintain slavery therein, by making it a penal offense for any person within said Territory to speak or write against such system, or to aid any man held as a slave within said Territory to escape therefrom, with the intent to secure the personal liberty of such slave? 5. Do you hold that, under the Constitution, a person held to service or labor within said Territory, escaping therefrom into any State of this Union, can be reclaimed under the fugitive slave law, or is such person within the extradition clause of the second section of article four of the Constitution? 6. Under the Constitution of the United States, can the people of any of its Territories rightfully or legally establish any but a republican form of government therein? And do you hold that to be a republican government which converts the majority of its subjects into chattels, and subjects them to the absolute despotism of the minority?40

Richardson ignored most of these questions, but he did say that the Constitution applied to the territories and that the Kansas-Nebraska Act made the Fugitive Slave Act the law in Kansas.41 When Bingham pressed for more specific answers, he was criticized by members of both parties and yielded the floor.42 Many of the Kansas interrogatories just restated Bingham’s position that the Constitution barred slavery in the territories, but now he began to outline why he thought that was true. The second question, for instance, borrowed from the abolitionist argument that the Due Process Clause of the Fifth Amendment was contrary to the presence of slaves

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on federal land because they were being deprived of liberty without a hearing. The fourth question—inspired by a Kansas statute that made it a felony to criticize slavery—implied that free speech was protected in a territory, which was at odds with the denial of that right to slaves and to citizens.43 Finally, the sixth question held that territorial slavery violated the Guarantee Clause, which maintained that “[t]he United States shall guarantee to every state in this union a republican form of government.”44 This last argument was the most provocative because it suggested that states and territories could be treated as constitutionally equivalent. In other words, Bingham implied that the Guarantee Clause applied to a territory even though that provision referred only to states. But if a slave territory was not republican, then how could a slave state be republican? The Republicans prevailed in the struggle for control of the House when their choice, Nathaniel Banks, was elected Speaker in February 1856. Abolitionists hailed this triumph as a milestone, and William Lloyd Garrison said that this “result is but the first gun at Lexington of the new Revolution. If so, then Bunker Hill and Yorktown are before us! All we have to do is press onward—right onward!”45 The Speaker promptly named Bingham to the House Committee on Elections.46 Under normal circumstances this was an insignificant post. In 1856, though, this committee was at the center of the hottest political question in the land—the future of Kansas.47 The Kansas-Nebraska Act created a scramble for control of the territory that culminated in the election of two candidates to be its lone nonvoting delegate to the House. Northerners offered financial aid to settlers who would move to Kansas and establish a free state there, while southerners encouraged the opposite migration.48 The first territorial election in 1855 produced a pro-slavery majority in the legislature, but that result rested on thousands of votes from Missouri citizens who crossed into Kansas and used violence and intimidation to force their way to the polls.49 A rival free legislature was organized in Topeka, but President Franklin Pierce did not recognize its legitimacy.50 Each legislature then organized a congressional election that sent its own representative to the Capitol, and the House would not accept the committee’s recommendation that the anti-slavery man be seated.51 On March 6, Bingham attacked this decision in his first formal speech to the House. After declaring that “[t]he truth can wrong no

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man,” he explained that the committee had a duty to examine the Kansas delegates’ credentials.52 The issue was whether the pro-slavery man was “here without the consent of the people, in violation of law and by the act of lawless invaders. Is he here by the decision of the sword and not of the ballot?”53 There could be no claim that the legislature’s certification of the outcome was immune from scrutiny, Bingham said, because the Constitution gave the House the authority to judge its members’ elections.54 He then offered a detailed analysis of the territorial election law and argued that the pro-slavery delegate was chosen in violation of the act of Congress organizing Kansas.55 Furthermore, he claimed that the territorial legislature itself was “a revolutionary body chosen by invaders and conquerors of Kansas against the will of the people” and noted the irregularities surrounding its election.56 The most dramatic part of Bingham’s speech was his criticism of the slave code enacted by the “official” legislature.57 In Kansas it was a capital crime to take a slave to freedom or to convince someone else to do so. Likewise, anyone who wrote anything intended to induce slaves to escape could be sent to prison for five years. Worst of all, anyone who criticized slavery was guilty of a crime that carried a sentence of two years. Bingham’s response was unequivocal: “I believe that it is not constitutional to restrict the freedom of speech within the Territories of the United States, and that such restriction is not a rightful subject of legislation.” Hearkening back to his speech at Franklin College five years earlier, he stated that restricting the right of the people “‘to know, to argue freely, and to utter freely, according to conscience,’ is absolutely void, because it is not consistent with that provision of the Constitution which declares that the Congress of the United States shall not pass any law abridging the freedom of speech or of the press.” He then explained in vivid terms what censorship in Kansas meant: [I]t would be a felony there to utter the strong words of Algernon Sydney, “resistance to tyrants is obedience to God;” a felony to say with Jefferson, “I have sworn upon the altar of my God eternal hostility to tyranny in every form over the mind and body of man;” a felony to utter there, in the hearing of a slave, upon American soil, beneath the American flag, the words of flame which shook the stormy soul of Henry, “Give me liberty, or give me death;” a felony to read in the hearing of one of

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those fettered bondsmen the words of the Declaration [of Independence] . . . ; a felony to utter there those other words, blazing in letters of living light on the great written charter of our National Government, “We, the people of the United States, in order to establish justice,” the attribute of God, and “to secure liberty,” the imperishable right of men, do “ordain this Constitution.”

Bingham summed up by saying that “[t]his pretended legislation of Kansas violates the Constitution in this—that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force.”58 The right of selfgovernment in Kansas was “ruthlessly struck down, and the majesty of the national law defied. Shall this wrong be redressed—shall that right be maintained?” None of Bingham’s constitutional arguments were novel, but his speech made a splash because he was one of the first members of Congress to make them.59 The Daily National Intelligencer called him “an accomplished debater,”60 and the National Era, an anti-slavery publication in Washington, reprinted Bingham’s entire address.61 A friendly paper in Cleveland reported that “the fact that Mr. Bingham was listened to with the most breathless stillness, except when the silence is broken by thunders of applause, is the best evidence of his great power as an orator. As a debater, he falls, perhaps, below Mr. Giddings; but he has no other competitor in the House.”62 And the Republican Party took note, circulating his rhetoric as a piece of campaign literature.63 At the age of forty-one, John Bingham had arrived on the national stage. Building on this strong performance, Bingham traveled to speak at rallies in New Jersey and New York.64 In New York, he began by telling the crowd that supporters of slavery were editing the Preamble to read: “We, the people of the United States, in order to establish injustice, and to secure to ourselves and posterity the blessings of despotism, do ordain and establish this Constitution.”65 Striking a firm nationalist tone, he chastised President Pierce for believing that “we are a confederation of separate sovereign and independent States; not being one people at all, not having one interest at all, and not having one destiny at all; but . . . banded together for the purpose—among other things— of maintaining the worst system of despotism that the world ever saw.”66

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“[M]y fellow citizens,” Bingham rolled on, “I have been disposed to look upon this Union as a sacred and a holy thing—a perpetual bond of brotherhood, made, signed, and ratified by the old men of the revolution, who had worked out the emancipation of themselves and their posterity on a hundred fields of battle.”67 Most of his remarks gave an anti-slavery reading of our history that his audience wanted to hear, which began with the Puritans who came to these shores and founded “what the world had never seen—a church without a Pope and a State without a King.”68 He stressed that the word “slavery” was not in the Constitution, which showed that the Founding Fathers “intended that the institution should die, as they had found out the great truth that a lie cannot live forever, that it must die.”69 After tracing the rejection of slavery in northern states and in the Ordinance of 1787 that governed the Northwest Territories, Bingham contended that John C. Calhoun was the villain who “took it into his mind that he would bend the Constitution . . . bend that immortal instrument to the business of perpetuating and extending the system of domestic slavery.”70 The question raised by the Kansas-Nebraska Act was whether the country would follow Calhoun’s lead and “strike down this covenant in favor of liberty—whether we shall blast that virgin territory, larger in extent than the territory of the thirteen original colonies, with the manacled footsteps of the bondsman?”71 Bingham closed with confidence, stating that “[t]hese base attempts will fail, if the people are only true to themselves, and their past history.”72 These two speeches on Kansas were characteristic of Bingham’s rhetorical style—good and bad. His strength as an orator was based on careful preparation and relentless logic, presented in a voice that one colleague described as “a steady, strong, onsweeping wind, roaring through and over a great old forest, a powerful, steady, pealing blast.”73 While not known for turns of phrase, he was quick on his feet and quite adept at framing the issues that he cared about. As another Republican colleague wrote, “Bingham was one of our most effective speakers, and was usually put forward as the Republican champion. . . . He usually stirred up his opponents, and was subjected to interruptions. His temper was good, his retorts and replies always happy and effective.”74 What really set his rhetoric apart, however, was its depth. A typical Bingham speech was filled with citations and scholarly allusions that

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few members of Congress could match.75 He was especially fond of history, Shakespeare, and poetry, which helps explain why Bingham had a reputation for being a sparkling conversationalist.76 On the other hand, he sometimes displayed the dark side of a well-read man by going on far longer than necessary to make his point.77 Voters expected lengthy speeches in this era, but Bingham was verbose even by those standards. The New York Times said that his New York address ended only when “[t]he honorable gentleman eventually yielded to the obvious desire on the part of a majority of the audience to hear other speakers.”78 Bingham’s attempts to impress people with what he knew sometimes gave his speeches a meandering quality and produced the flights of oratory that Sherman talked about.79 Nevertheless, Bingham’s contemporaries thought he was one of the best speakers of his generation, and those talents were put to good use.80 While Bingham’s national focus was on slavery, he knew that a successful politician must also cater to local interests. Most of the time he voted with his party, but because wool production was a major industry in his district, he would always vote for anything that helped sheep farmers.81 On a personal level, Bingham’s papers are littered with letters from constituents requesting patronage, though it is impossible to assess how he responded to all of these pleas.82 The strangest of these demands came from a boy who asked Bingham to sell three dozen turkeys that he had raised for the high price that they would command in Washington.83 He dutifully complied and explained that “[i]t was when I received that consignment of turkeys that I first began to realize what the duties of a Congressman really were.” Bingham’s most consequential act of constituent service came when he got a note from a young man named George Armstrong Custer.84 Custer was at school in Hopedale, not far from Cadiz, and asked Bingham for a reference to get into the military academy at West Point.85 Although Custer was from a Democratic family, Bingham was “captivated” by the note and, “[s]truck by its originality, its honesty, I replied at once.”86 He informed Custer that he had already tapped one man for West Point and promised another reference to someone else. Not easily deterred, Custer moved to Cadiz to become a teacher so that he could win Bingham over.87 They met a few times at his house and got along well, but there still was no reference letter.88

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George Armstrong Custer, who rose to fame with Bingham’s help. Library of Congress.

Then a sexual affair changed the equation. Custer fell madly in love with the daughter of his landlord, who did not approve of the match, especially after he learned that the young couple was sharing a bed.89 Unlike most frightened parents, he turned to his congressman for help and asked him to get the boy into West Point and away from his daughter. Bingham promptly wrote Jefferson Davis, the secretary of war, and secured Custer’s place in the incoming class.90 By this point Bingham had become fond of Custer despite his dalliance, telling a group in Cadiz that the new cadet was “one of the most honorable and truthful men he had ever met.”91 So began a long and curious relationship between the sober politician and the dashing young officer. Bingham became one of Custer’s biggest boosters. In fact, without his support Custer would have vanished into obscurity. At West Point,

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Custer was brought before a court-martial for failing to stop (and, indeed, egging on) a fight between two cadets under his command.92 He was convicted of neglect of duty and “conduct to the prejudice of good order and military discipline,” but the sentence was suspended after Bingham interceded.93 During the war, Bingham got Custer a promotion to brigadier general after suggesting his name to President Lincoln during a conversation, and afterward Bingham lobbied Secretary of War Stanton to make Custer a major general.94 The Little Big Horn debacle occurred while Bingham was in Japan, but he took time to write Custer’s father expressing his condolences.95

The 1856 Presidential Election Campaign season arrived amid growing violence. In May, a pro-slavery militia in Kansas invaded the town of Lawrence and burned it to the ground, which led to a retaliatory raid led by John Brown that killed five southern sympathizers.96 Meanwhile, Senator Charles Sumner of Massachusetts delivered an address titled “The Crime against Kansas” that called what was going on “the rape of a virgin territory.”97 The intensity of this speech concerned Bingham, who warned another senator that Sumner might be harmed.98 Sure enough, two days later Congressman Preston Brooks of South Carolina came onto the Senate floor and beat Sumner senseless with a cane.99 Bingham was enraged and told the House that the “freedom of speech and the security of person are upon trial” because of “the unparalleled conspiracy which is subjecting the territory to a cruel and ruthless tyranny.”100 He supported an unsuccessful motion to expel Brooks, which led a member from Georgia to call his Ohio colleague a “monomaniac.”101 Lost in this whirl of events was the Supreme Court’s decision that month to order a second oral argument in Dred Scott v. Sandford, a case that would soon supercede Kansas as the flashpoint between supporters and critics of slavery.102 Bingham was not a delegate at the Republican National Convention in Philadelphia, but he did go there to make his feelings known.103 As in 1848, his favorite was Justice John McLean, but this time he was free to act on that belief. On June 9, he told the justice that the party “must use every fair and legitimate influence to secure your nomination.”104 Most Republicans were unconvinced that a seventy-one-year-old who had

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been on the Supreme Court for more than a quarter of a century was the ideal choice, and the convention turned instead to John C. Frémont, a well-known explorer with little political experience.105 Bingham was frustrated and marched to Joshua Giddings’s hotel room to call him “a damned fool” for not backing McLean.106 Nevertheless, Giddings was a key figure on the platform committee, and produced a draft vindicating Bingham’s views by stating that “no person shall be deprived of life, liberty, or property, without due process of law, [thus] it becomes our duty to maintain this provision of the Constitution against all attempts to violate it for the purpose of establishing Slavery in the Territories of the United States by positive legislation.”107 The presidential result was not close. It was a tall order for Frémont to win in his party’s first national campaign, especially given the presence of Millard Fillmore, the ex-president, as a third-party candidate.108 The Democratic Convention decided not to give President Pierce a second term and put forward James Buchanan, a veteran politician from Pennsylvania, as its nominee. Buchanan cruised to victory, though Frémont carried eleven states (including Ohio) and did well given that Republicans got almost no votes in the South.109 Bingham wrote a friend and commented: “I deeply regret our failure to elect Frémont  .  .  .  though I find much in a review of the contest and overwhelming vote of the other candidates’ principles . . . to cheer and encourage.”110 But he took the long view and said: “I therefore fling away all ‘vain regrets’ and turn from the past . . . to the future so full of promise . . . for the contest of the year 1860.”111 Bingham’s own reelection was not challenging. Local Democrats tried to make mischief by circulating an allegation that Bingham “neither asked, needed, or wanted” the support of independent voters, but that was countered by Republican literature.112 And a hostile newspaper contended that a “distinguished feature of the day consisted in the fact that there were a considerable number of niggers attending Republican rallies,” which was “the first time we ever witnessed anything of the kind in this country.”113 Bingham’s constituents ignored this chatter and sent him back with 58 percent of the vote, which was a healthy margin, though reduced from 1854.114 More important and discouraging for his immediate future, though, was that the Democrats won back control of the House.115

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Reply to the President’s Annual Message Bingham returned to Washington for the lame-duck session of the Thirty-Fourth Congress and completed his first term with a major address that anticipated Chief Justice Taney’s argument in Dred Scott. In his last Annual Message (the old term for the State of the Union address), President Pierce offered a strong defense of the KansasNebraska Act.116 He wrote that Congress had “legislated upon the subject in such terms as were most consonant with the principle of popular sovereignty that underlies our Government. It could not have legislated otherwise without doing violence to another great principle of our institutions—the imprescriptible right of equality of the several States.”117 Pierce also hailed Buchanan’s triumph, writing that “the voice of the people has now so pointedly rebuked . . . the attempt of a portion of the States, by a sectional organization and movement, to usurp the control of the Government of the United States.”118 Bingham responded in January 1857 that Pierce’s message “abounds in sentiments subversive of the Constitution, and sanctions and defends a policy destructive of the public peace.”119 What really concerned him was Pierce’s “monstrous proposition that the several states of the Union, as States, have a constitutional and imprescriptible right to traffic in slaves, not only within their respective limits, but throughout the national Territories.”120 It was bad enough to say that Congress could permit slavery in the territories, but taking that a step further and holding that masters had a constitutional right to bring their slaves into the territories was worse. This was the result that Dred Scott would reach, but when Bingham addressed the House the case was not yet decided. He answered the president’s claim with two arguments. One was conventional, while the other was more exotic and marked a steppingstone in his thinking about the relationship between the Bill of Rights and the states. The simple part of Bingham’s analysis was that Congress had broad authority to regulate the territories under Article Four, Section Three of the Constitution, and that this included the authority to ban slavery.121 He based that claim in part on Chief Justice Marshall’s opinion in American Insurance Company v. Canter, which explained that, in legislating for a territory, “Congress exercises the combined powers of the General

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and of a State government.”122 Furthermore, the fact that Congress could (and did) outlaw the slave trade on the high seas undermined the view that the states had an extraterritorial right to slavery.123 He also cited Marshall’s opinion in Worcester v. Georgia, the case that struck down Georgia’s laws discriminating against the Cherokees within their homeland, for the point that “[t]he extra-territorial legislative power of every State is limited to its own citizens and subjects.”124 Of course, he did not agree that Congress’s broad power over the territories included the right to permit slavery just as a state could within its domain or the right to violate fundamental freedoms such as freedom of speech. The rest of Bingham’s speech advanced a different theory that marked his first indirect reference to the Bill of Rights. He started by saying that the states were equal in many respects, but they were “unequal in the right to do wrong,” and thus did not have an equal right to bring slaves to the territories.125 The original thirteen states had an absolute right to have slavery because they predated the Constitution, but states admitted after that did not have the same right because they were “formed under and only by force of the Constitution.”126 To support this interpretation, Bingham observed that the constitutional provision giving Congress the right to ban the import of slaves referred to “the states now existing” rather than just “the states.”127 He also noted that the Constitutional Convention had rejected a proposal that new states should be admitted “on the same terms with the original states.”128 This meant that the states were unequal, and that “Congress, in the organization and admission of new States, might impose conditions upon them to which the original states were not subjected.”129 The most powerful evidence in favor of Bingham’s “unequal state” reading was the Northwest Ordinance of 1787, which was enacted by Congress under the Articles of Confederation and governed the territory that became Ohio, Indiana, Illinois, Michigan, and Wisconsin.130 He had cited the ordinance in prior speeches, such as the Franklin College Address, because it excluded slavery from those lands, but now he pointed to its other guarantees: ARTICLE I. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

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ARTICLE II. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury. . . . All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same.131

Bingham stressed that these restrictions were not imposed on the original thirteen states but were imposed by Congress on many territories organized after 1787.132 And “if these restrictions be violative of popular sovereignty and State equality, Washington, Adams, Jefferson, Madison, Monroe, Jackson, Tyler, and Polk, are guilty of that violation, and were black—very black—Republicans.”133 An eye-opening implication of Bingham’s view that the states were unequal with respect to rights secured by the ordinance is that federal courts could invalidate laws in some states that were constitutional in the original thirteen. Chief Justice Marshall did raise this possibility in an 1829 decision from Ohio.134 In the 1850s, though, the Court held that the ordinance was not in force once a territory achieved statehood.135 Although he acknowledged that fact, Bingham responded that the Court’s holding was irrelevant because the principles of the ordinance were adopted in the Bill of Rights.136 The Fifth and Sixth Amendments “contain substantially, and almost literally, the provisions of the articles of the ordinance, and, like them, declare that ‘no person shall be deprived of life, liberty, or property, without due process of law;’ that the people shall have the trial by jury . . . and that private property shall not be taken for public use without just compensation.”137 Bingham concluded that “[t]he Act of 1789 adopting this ordinance, as also the amendment incorporating its great principles in the Constitution, were ‘statute restrictions upon the institution of new States’ of perpetual obligation.”138 This last line was a breakthrough. It was the first time that Bingham expressly referred to parts of the Bill of Rights, and he did so by linking these amendments to the Northwest Ordinance of 1787 and to the states admitted after 1789.139 The power of this logic was that it provided

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a basis for holding that some of the states were bound by some of the guarantees in the Bill of Rights.140 There were, of course, substantial gaps in this argument. None of the original thirteen states were covered, the Bill of Rights contained freedoms not in the ordinance, and there were no decisions invalidating a state law using Bingham’s theory. Nonetheless, it was a way station toward his ultimate view that the entire Bill of Rights should apply to all of the states. As his speech reached its climax, the freshman congressman from Ohio declared that the North wanted “no more compromises—we stand upon the Constitution.”141 John Bingham’s Constitution was “based upon the EQUALITY of the human race. Its primal object must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights.”142 “It must be apparent,” he stated, “that the absolute equality of all, and the equal protection of each, are principles of our Constitution, which ought to be observed and enforced in the organization and admission of new States.”143 The contrary view advanced by the president “would be an act of political suicide; it would disturb the repose of the dead, and blast the hopes of the living.”144 Joshua Giddings told Salmon Chase that Bingham’s speech was the best presentation made in “our body on this subject.”145 And the New York Daily Tribune hailed the address as a “most masterly exposition of the whole subject. . . . he has justly taken rank as one of the ablest debaters in the body, and is destined to attain an enviable reputation for statesmanship.”146 Two months later, the Supreme Court decided Dred Scott and rejected Bingham’s view in concluding that Congress lacked the power to prohibit slavery in the territories.147 Scott was a slave who was taken into a territory where the Missouri Compromise barred slavery, and when he was back in Missouri he sued, claiming that his time in that free territory meant that he was free.148 Chief Justice Taney turned this claim aside, in part, by saying that only a citizen could make this argument and that African Americans were not citizens.149 This was the source of his infamous assertion that they were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”150 Taney added that if African Americans were “entitled to the privileges

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and immunities of citizens,” then they would have the “right to enter every other State whenever they pleased  .  .  .  unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech . . . to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”151 While Section One of the Fourteenth Amendment overruled Dred Scott on the citizenship question, a more interesting comparison is between Bingham’s assessment of Congress’s authority in the territories and Taney’s reading. For example, the chief justice conceded that the Northwest Ordinance was constitutional, but he argued that this applied only to territories held by the United States at the Founding.152 This was an inversion of Bingham’s position. Bingham said that a distinction must be made between the founding states and the ones admitted later to the detriment of slavery, whereas Taney stated that the founding territories should be distinguished from those acquired afterward in favor of slavery. Likewise, the chief justice read John Marshall’s Canter opinion more narrowly than Bingham did and said that it did not give Congress broad authority over all subjects in the territories.153 Most important, Taney turned the Due Process Clause into a shield for slavery, as that text counseled “against any inroads which the General Government might attempt, under the plea of implied or incidental powers” against slaveowners.154 The political implications of Dred Scott were profound. In essence, Taney struck down a key plank of the Republican Party—eliminating slavery from the territories. His opinion also raised the prospect that a master might have a constitutional right, secured by the Due Process Clause, to bring slaves into a free state.155 (In fact, Bingham raised this issue in his reply to President Pierce.)156 On the other hand, the chief justice also crippled the Kansas-Nebraska Act by making it unconstitutional for a territory to exclude slavery.157 Bingham wrote to Justice McLean, who dissented in Dred Scott, and said that “[w]hile I deeply regret the opinion given by the majority of the Court, I rejoice that in this crowning act of your illustrious life, you have been so clear in your great office.”158 He later dismissed Taney’s effort as the product of “an intellect shattered by age and darkened by the approaching shadows of the grave.”159

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Chief Justice Roger B. Taney, the author of Dred Scott v. Sandford. Library of Congress.

The Lecompton Constitution After his intense introduction to the Capitol, Bingham returned to Cadiz and spent most of 1857 tending to the home front. Amanda had given birth to two more children. Jessie, a girl, came in 1856, and Preston, a son, followed a year later, making five in all.160 John was by all accounts a tender father who wrote often to his children when he was away, signing notes as “Your Papa.”161 He also resumed his private legal practice, making two appearances before the Ohio Supreme Court.162 And Bingham campaigned for Chase’s successful (albeit narrow)

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reelection as governor after serving as a delegate at the state party convention.163 When he returned to Washington that December, though, he had to adjust to a new role as a backbencher in the House. Nonetheless, Bingham was the leading voice on the Kansas crisis. Pro-slavery forces there had held a constitutional convention in the town of Lecompton and sought admission as a slave state.164 President Buchanan supported this petition, but Stephen Douglas refused to go along because he did not think that the Lecompton Constitution was “the act and deed of the people of Kansas.”165 This split in Democratic ranks gave Republicans hope that they could keep Kansas out of the Union, but Douglas’s defection was also a sign that sectional divisions were tearing the last national political party apart. Bingham attacked the administration’s view in January 1858, calling the Kansas debate “a question between Executive despotism and popular liberty.”166 He told the House that “I cannot and will not give any sanction to this Lecompton Constitution. This instrument does not emanate from the people of Kansas. It is not their will. Its provisions are in direct conflict with the Constitution of the United States, and with the principles of eternal justice.”167 The delegates at the territorial constitutional convention represented, Bingham said, no more than “one-fourth the whole number of voters in Kansas, and by virtue of an election law passed by usurpers.”168 “The great right of self-government cannot now be set aside by the puerile conceits of demagogues, whether embodied in a President’s message or an instrument framed by conspirators.”169 Bingham added, however, that he would not vote for the Lecompton Constitution even if it did represent majority opinion in Kansas.170 He took that view because the Constitution “declares upon its face that no person, whether white or black, shall be deprived of life, liberty, or property, without due process of law.”171 Democrats were attempting to vindicate Dred Scott’s contrary principle that “one class of men have no rights which another are bound to respect.”172 Indeed, the draft Kansas constitution went so far as to say that free “negroes shall not be permitted to live in this State under any circumstances.”173 “Representatives!” Bingham said, “will you give to this proposed atrocity your official sanction? Answer upon your oaths, to your conscience, to your country, and to your God!”174 While the abolitionist press heaped its standard praise on Bingham, irate southerners took the floor to challenge his views.175

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Congressman Davis of Mississippi said that “[t]he gentleman from Ohio has, with characteristic delicacy, told us that if we continued to urge our claim to the admission of Kansas into the Union under the Lecompton constitution, it might by possibility awaken a revolution in that country which shall deluge the whole land in blood.”176 Bingham “may reserve his threats,” Davis added, “and paint his scenes of civil war for those who are already prepared to become slaves. They are heard by the freemen of the South with indifference and contempt.”177 A member from Tennessee charged that Bingham was guilty of not “proving, or attempting to prove, these bold and startling declarations.”178 The Ohio legislature, though, passed a resolution urging its congressmen to stand fast against the admission of Kansas.179 A fierce political struggle ensued over the next three months. Bingham and Giddings backed a measure that would require Kansas to hold a popular referendum on the Lecompton Constitution, but a complex alternative was introduced providing, among other things, that if the territory voted no, then statehood would be delayed for several years.180 This compromise was enacted in April in spite of Bingham’s description of the law as “[a]n act to take away the liberties of American citizens.”181 The referendum in Kansas was held under less than ideal conditions because of the “penalty” that would follow from a negative result, but the Lecompton Constitution was overwhelmingly defeated by a free and fair vote.182 Kansas would never be a slave state. The most significant aspect of Bingham’s last address about Kansas was his definition of national citizenship. The Lecompton Constitution held that only male citizens could vote but provided that no amendments to that text could be made unless a majority of all citizens approved.183 Bingham contended that this made a constitutional change virtually impossible, since women and children were citizens but could not be part of the required majority.184 In the course of that explanation, he offered the following opinion: “[E]very man knows that under our free institutions, every person born of free parents within the jurisdiction of the United States, and who are residents thereof, is a citizen of the United States, and therefore of the State of his residence, whether such person be male or female.”185 “Every man,” though, did not include Chief Justice Taney, who said in Dred Scott that an African American born free here was not a U.S. citizen.

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The 1858 Congressional Election When Bingham returned to Cadiz in June 1858, he faced a political problem. Some Republicans in his district were grumbling that two terms were enough for a member of Congress, and there were two serious challengers for the nomination.186 Rumors were circulated that he was a drunk, which led one friend to write Bingham that they were defending him as “a man of good moral character and perfectly temperate” and attacking one of his potential opponents as “very intemperate, a notorious gambler as well as many things of a more private nature.”187 (That candidate dropped out of the race.) Bingham apparently enjoyed his wine, but there is no evidence that he drank to excess. At this delicate time, Bingham wrote to Salmon Chase and offered to support his campaign for the Republican presidential nomination in 1860.188 Bingham evaluated Chase’s opponents (though he said nothing about Lincoln, who was still obscure) and gave Chase advice on how to proceed. Then he came to the point by asking “if you could induce any of your special friends in Columbiana County to favor my re-nomination to Congress.”189 He explained that some people in his district wanted the people to reject me and reserve me as your successor. I have no claims to any such distinction as that, and if I had any claims would be very poorly advanced by a rejection at home a year in advance of the Gubernatorial nomination. I want to remain in my present position if I honorably can long enough for me to make for myself a mark and for my constituents some good return.190

Bingham was being fairly candid in this passage, though there was no indication that anybody wanted him for governor—perhaps he was just exaggerating to make himself look strong. There is no evidence of Chase’s response, but Bingham prevailed on the first ballot at the local party convention and stuck with Chase during his presidential contest with Lincoln two years later.191 In the fall Bingham breezed to victory, receiving 57 percent of the vote.192 The year 1858 was also a good one for his allies, as the Democratic split over Lecompton (combined with the financial panic of 1857)

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crippled that party’s candidates across the country. Republicans won the largest number of seats in the House, but closer to home Bingham faced the prospect of returning to Washington without his mentor.193 Joshua Giddings’s health declined following a heart attack in 1857, and the party decided not to nominate him for another term.194 A correspondent for the Cadiz Democratic Sentinel wrote that as “Mr. Giddings’ Congressional career closes on the 4th of March next, your member, Mr. Bingham, stands a good chance of being elected the leader of the Radical Republicans from your State in your next House.”195 Bingham wrote Giddings on his retirement to thank him for his “kind words and good instructions touching the public service and public interests.”196 Giddings had taken the anti-slavery baton from John Quincy Adams, and now in the eyes of many, Bingham would take his place.

The Oregon Territory The final session of the Thirty-Fifth Congress produced Bingham’s most significant speech of the antebellum era.197 Oregon was seeking admission to the Union as a free state. While one would expect a foe of slavery to rejoice at this petition, Bingham voted with the minority against the application.198 His address to the House in February 1859 explaining that vote contained his most sophisticated legal analysis to date and set the tone for the constitutional text that he would propose seven years later. According to Professor Akhil Reed Amar, a leading expert on the Bill of Rights, the Oregon address tracks “almost perfectly the natural meaning of the words Bingham drafted in 1866 as section 1 of the Fourteenth Amendment.”199 Bingham’s first problem with the Oregon Constitution was that it gave some aliens the right to vote.200 He raised this objection when Minnesota was admitted two years earlier, and now he renewed his argument.201 Citing Dred Scott positively (for the first and only time), Bingham explained that “the people of the several States” whom a state could allow to vote under Article One of the Constitution meant only “citizens.”202 While the states “may determine who, amongst the citizens of the United States resident within their respective limits, may exercise the elective franchise . . . I deny that any State may rightfully transfer this political right from the citizen to the alien.”203

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His more powerful criticism, though, was against a provision that would deny African Americans any rights in Oregon because they were “born with tawny skins.”204 Here is the relevant section of the proposed state constitution: No free negro or mulatto, not residing in this State at the time of the adoption of this constitution, shall ever come, reside or be, within this State, or hold any real estate, or make any contract, or maintain any suit therein; and the Legislative Assembly shall provide by penal laws for the removal by public officers of all such free negroes and mulattoes, and for their effectual exclusion from the State, and for the punishment of persons who shall bring them into the State, or employ or harbor them therein.205

Bingham said that this restriction would violate “the law of nature, as recognized by every civilized nation on the globe. It is, sir, the public law of the civilized world, that every free man is entitled to live in the land of his birth.”206 If Oregon could exclude these people, then “it would be the right for every State in the Union to exclude every nativeborn colored man in America. What, in the name of God, would you do with these men, these eight hundred thousand free, native-born men, of our common country!”207 Bingham did not just disagree with Oregon’s discrimination against free African Americans; he said that such treatment was unconstitutional under the Privileges and Immunities Clause.208 Borrowing heavily from abolitionist arguments that dated back to his days at Franklin College, Bingham repeated that a state could deny voting rights to a group of citizens, but no state “may exclude a law abiding citizen of the United States from coming within its Territory, or abiding therein, or acquiring and enjoying property therein, or from the enjoyment therein of the ‘privileges and immunities’ of a citizen of the United States.”209 He admitted that his interpretation of the Privileges and Immunities Clause meant that a state citizen was owed the “privileges and immunities of citizens of the United States in the several States,” which is not what the text said.210 He responded, though, that his reading was “self-evident” and that any other would be “senseless.”211

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What were the “privileges and immunities” of citizens of the United States? The rights that Oregon wanted to withhold from free African Americans were part of that set, such as the right to live in a state, own property that could not be taken away without just compensation, make contracts, and file lawsuits, which Bingham said included the right to a jury trial.212 More broadly, he stated that if “the Constitution guaranties to its citizens a right, either natural or conventional [i.e., recognized by positive law], such guarantee is in itself a limitation upon the States.”213 Bingham did not mention the Bill of Rights, but nothing about his definition of privileges and immunities was at odds with the view that the entire Bill of Rights was part of what all citizens were owed against state regulation. And in contrast to his Kansas speech two years before, he did not make an exception for the original thirteen states. His understanding of basic rights, while a work in progress, was becoming more expansive. What Bingham was clear about was that the Constitution did not permit racial distinctions with respect to fundamental rights. He said that “[y]ou will search in vain, in the Constitution of the United States, for that word white; it is not there. You will look in vain for it in the first form of the Articles of Confederation; it is not there. The omission of this word—this phrase of caste—from our national charter, was not accidental, but intentional.”214 Since “black men helped to make the Constitution, as well as to achieve the independence of the country by the terrible trial by battle, it is not surprising that the Constitution of the United States does not exclude them from the body politic, and the privileges and immunities of citizens of the United States.”215 “I protest, against the attempt to mar that great charter of our rights, almost divine in its conception and in its spirit of equality,” Bingham went on, “by the interpolation into it of any word of caste, such as white or black, male or female; for no such word is in that great instrument now, and, by my act, or word, or vote, never shall be.”216 Circling back to his discussion of suffrage, though, Bingham was equally clear that free African Americans did not have a constitutional right to vote. “The franchise of the office of a Representative in Congress is a political right.”217 “Practically,” he said, those “political rights are exercised only by the majority of the male population, and are subject to just such limitations as the majority see fit to impose. To this I have, and can have, no objection. Gentlemen need not trouble themselves, therefore,

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about the demagogue cry of ‘the political equality of the negro.’”218 States retained the right “to regulate the elective franchise among citizens of the United States, to extend it or to withhold it at their pleasure from all colored citizens; or only some of them; from all minors, white or black; and, if they see fit, from the best portion of the citizens of the United States—from all the free intelligent women of the land.”219 Consequently, he was not trying to make “a negro equal, politically, with a white man.”220 Bingham stuck with his view that African Americans did not have a right to vote until 1866. It is difficult to know whether this reflected his true beliefs or was something that he felt was politically necessary. There is no private correspondence that sheds light on this issue the way it does for his views on slavery or on the Fugitive Slave Act. Bingham ended his speech with the rousing theme that the United States was not established to further oppression: It was not to this end that the fathers of the Republic put forth their great Declaration, and in defense of it walked through the fire and storm and darkness of a seven years’ war. . . . It was not to this end that, after the victory was thus achieved, those brave old men, with the dust of Yorktown yet fresh upon their brows, and the blood of Yorktown yet fresh upon their garments, proclaimed to the world, and asked it to be held in everlasting remembrance that the rights for which America had contended were the rights of human nature.221

An Ohio paper said the “speech of Mr. Bingham was, in its closing portions, so eloquent that every eye in the vast hall was riveted to the speaker, and the hammer fell amid a silence so complete that you could have heard the rustling of a paper in the Hall.”222 By the end of the Thirty-Fifth Congress, John Bingham had articulated the ideas that would go into Section One of the Fourteenth Amendment. Protecting privileges and immunities of citizens, due process of law, and equal protection from state action was his constitutional calling card. And the principal issue of the first part of his congressional career (on what terms should states like Kansas and Oregon be admitted to the Union) was excellent training for the more difficult one to come (on what terms should the southern states be readmitted to the Union after the Civil War).

5 and the war came After slavery is abolished, or put in the process of ultimate but certain extinction, there will be nothing left for traitors to fight for. It is the sole cause of this great treason, and it is time that the world knew and comprehended the fact. This great war is a conflict for freedom and free institutions on the part of the armies of the Union, against armed traitors who seek to build and perpetuate upon the ruins of representative government the most unlimited and atrocious despotism the world ever saw. John A. Bingham, 1862

The Civil War marked John Bingham’s transition from dissenter to legislator. Lincoln’s election in 1860 gave the Republicans control of Washington for the first time, and the congressman from Ohio was one of the president’s most fervent supporters. From his perch on the House Judiciary Committee, Bingham designed legislation to support the Union army, suspend the writ of habeas corpus, and undo various pro-slavery policies.1 The redrawing of his congressional district led to Bingham’s defeat in 1862—a setback that made him a little more cautious for the rest of his career. After two years in the political wilderness, during which he suffered the crushing loss of two of his children, Bingham recaptured his seat in 1864 and prepared for the great task of Reconstruction.

The Last Antebellum Congress The summer of 1859 saw Bingham back in Cadiz practicing law and engaged in a fight over the Ohio party’s platform.2 The state Republican convention was divided over the Fugitive Slave Act, with Bingham 66

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and Giddings leading the radicals. They wanted a plank denouncing the act and opposing the nomination of Chief Justice Joseph Swan, who had upheld it as constitutional in an opinion for the Ohio Supreme Court.3 The convention stopped short of declaring the Fugitive Slave Act unconstitutional, but it did excoriate the statute and reject Swan.4 A leading critic of Bingham’s position was none other than Abraham Lincoln, who wrote Salmon Chase complaining that the “cause of Republicanism in Illinois is hopeless in Illinois, if it be in any way made responsible for [your] plank. In every locality, we should look beyond our noses, and at least say nothing on points where it is probable we shall disagree.”5 In Ohio, though, a stronger posture against slavery paid off, as Republicans carried the legislature and the governorship.6 When the new legislature took up the question of who should be the next U.S. senator from Ohio, one paper floated Bingham’s name.7 The front runner, though, was Governor Chase, and Bingham quickly wrote Chase to say that he was not interested in the Senate and had not planted this favorable story.8 Chase replied that the state “could not nominate a worthier man for Senator than yourself, and this makes your avowal you write in my favor doubly gratifying.”9 Bingham had no hope of defeating Chase, who was sent back to the Senate, and probably decided that any chance that he had for higher office rested on having a good relationship with the strongest Republican in the state.10 For the only time in his career, Amanda Bingham came to Washington with her husband for the start of the new Congress, leaving their children behind in Cadiz with her sister.11 Joining Bingham in the House chamber was Thaddeus Stevens, the clubfooted and caustic new member from Pennsylvania who was a favorite of Giddings and led the Anti-Masons when Bingham’s father was active in politics.12 Republicans held the most seats in the new House, but they did not have a majority, so another grueling struggle ensued over who would be the Speaker. Tensions were high during the debate, which came just weeks after John Brown’s bloody and futile invasion of Harpers Ferry.13 A senator commented that the only people not carrying a gun and a knife in the Capitol were the ones carrying two guns.14 Bingham felt this superheated atmosphere in an exchange with Congressman William Smith of Virginia, which also shows the lost art of the cut-and-thrust of debate in the House:

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Mr. SMITH, of Virginia: I ask the question, whether the Federal Convention did not undertake to adjust this question of slavery, and did not, by various clauses of the Constitution, undertake to adjust it? Mr. BINGHAM: I say flatly, that they did no such thing; but, on the contrary, repudiated the word when it was offered. Mr. SMITH, of Virginia: Then what is the use of these provisions of the Constitution? . . . I put the question to him: Does not the clause in reference to fugitives from labor give a right to reclaim our slaves when they get from our possession? Was it not so designed? Speak— answer. Was it not so designed? Do I understand you to say no? What was it here for? Tell me; tell me. Speak. [Laughter.] I demand that you, as an American Representative, stand up here and respond to my question. Mr. BINGHAM: Whenever the gentleman addresses me as his peer, I will respond; but I wish him to know that I am not his slave. Mr. SMITH, of Virginia: To be sure! I would make you do better than you do if you were. [Laughter.] You would get what you need.15

Bingham’s willingness to buck the defenders of slavery caught the attention of the New York Times, which published his first extended profile in the national media: John A. Bingham . . . suddenly electrified the House by the first thoroughgoing pronouncement we have had of abolition principles. Bingham is a sandy-haired middle aged man, rather tall, vigorously built, with a broad and commanding forehead; very deep set, but full sized, greenish eyes; a long and rather curved nose drooping over a straight, thin mouth; little patches of rusty-red whiskers placed in front of each ear, and a complexion rather inclined to be sallow across the eyes, especially; the forehead is broad and mathematical, and on the whole the expression of the face conveys the idea of a strong will inclined to extreme convictions, an intellect practical in the guerrilla support of every opinion, and a temperament which is inclined to antagonize on every possible occasion with all or any, who do not think in precisely the same channel. Mr. Bingham speaks forcibly and with the heat of suppressed passion; he trots out anti-slavery quotations from Thomas Jefferson, and seems to have all of the weapon extracts of Republican argument worn smooth to his hand by long use.16

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Eventually the House chose William Pennington, a moderate from New Jersey, as the Speaker over John Sherman.17 Bingham was not pleased with his colleagues and wrote Giddings that “white-washed conservative Republicans” were now in charge.18 Giddings’s disciple made only two major speeches during this session of Congress. The first came in April and was a self-styled response to President Buchanan’s Annual Message, which praised Dred Scott and rejected the “demon spirit of sectional hatred and strife now alive in the land.”19 Bingham asserted that the Democrats were the source of this political poison, since “they were loud in proclaiming that the inauguration of a Republican president, elected by the people in conformity with the Constitution and laws, should be resisted to the extremity of disunion and civil war.”20 “The question today is not,” he said, “how shall civil war between the great sections of this Union be averted— for that is not to be; it is an impossibility—but the question of today is, how shall this sectional party and this sectional strife be allayed?”21 Bingham’s answer was that expanding slavery was not the solution, and he surveyed the history of that practice, including the Northwest Ordinance, to show that the Democrats were the real sectional party and that the principles underlying Dred Scott were false.22 What was new in this speech was Bingham’s assessment of Dred Scott and of the role of the Supreme Court in interpreting the Constitution. In words that foreshadowed Lincoln’s First Inaugural Address, Bingham denied that “a mere stump speech made in the Supreme Court . . . is a final judicial decision which has ‘irrevocably fixed the status of a Territory’ as a slave Territory.”23 He went on to say: I recognize the decisions of that tribunal as of binding force only as to the parties and privies to the suit, and the rights particularly involved and passed upon. . . . With Jefferson, I deny that the Supreme Court is the final arbiter on all questions of political power, and assert that the final arbiter on all such questions is the people—that people which ordained the Constitution. While I would condemn armed resistance to any decision of the Supreme Court . . . I would claim for myself, in common with all my fellow-citizens, the right to question their propriety, to denounce their injustice, and to insist that whatever is wrong therein shall be corrected.24

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A month later Bingham went further and stated that the decision of seven justices who voted with the majority in Dred Scott was “entitled to no more respect than that of the same number of men in this Chamber, or anywhere else.”25

The 1860 Presidential Election On the same day that Bingham was condemning Democrats in the House, they were holding their national convention in Charleston.26 That gathering adjourned without choosing anyone, and as a result two presidential candidates ran as Democrats—Stephen A. Douglas for the North and John Breckenridge for the South.27 The path to the White House was now wide open for any Republican who won the nomination at the upcoming convention in Chicago. Bingham was still backing Chase, but he worried that the Ohio delegation was not unified. On May 10, he wrote Chase, warning him that Benjamin F. Wade, the Republican senator from Ohio, was being coy about the use of his name as a presidential candidate, and that this was not a good sign.28 While Bingham did not go to Chicago, his fear that Chase had made too many enemies at home came true, as some of the state’s delegates ended up voting for Lincoln.29 Afterward he offered his condolences to Chase, writing that the “result seems to indicate that the longest tried, the ablest and most faithful are not likely to be crowned with the highest honors.”30 Nevertheless, Bingham was satisfied with Lincoln and went to the House floor to speak up on his behalf. The issue was that the Democratic Party was not “the party of freedom and liberty, and [has] been brought under perfect subjugation to the interests of slavery.”31 That was the result of an “influence I shall denominate the slave power.”32 “For many years, the slave power has been adroitly managing to mold and fashion the Supreme Court, so as to bring it into complete subserviency to their interests,” Bingham said.33 And “when we look at the necessary consequences of declaring slaves property under the United States Constitution, and to what must inevitably be the next decision, the right to hold them in the States . . . [that] is equivalent to a surrender of the whole country to slavery.”34 He was confident, however, that this was not America’s destiny:

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[A] new era is about to dawn upon us; the desperate struggle which has just taken place at Charleston is one of the dying throes of the slave power.  .  .  .  An enlightened people are thoroughly aroused to the good work; and they will reverse the decisions of your Supreme Court, and the policy which has prevailed under Democratic rule; they will make freedom national and slavery sectional. Their candidates, Lincoln and [vice presidential nominee Hannibal] Hamlin, are thoroughly identified with the interests of the laboring classes, from which they have sprung; and they are thoroughly imbued with the principles and the love of freedom and liberty. Around such standard-bearers the hosts of the people will gather and bear them on to victory.35

Bingham campaigned for Lincoln with his usual ardor, making a swing through Ohio and Pennsylvania that targeted Douglas, who was Lincoln’s only real threat in the North.36 Closer to home, Bingham again faced down a challenge within his own party for his House seat.37 This time the charge leveled at him was that he had promised not to seek another term in 1858 and won the nod in 1854 only by pledging not to serve for more than four years.38 Bingham denied these claims, stating that such a commitment would be inappropriate because it implied “that the office belongs to politicians to be bargained for.”39 When the local party barons met in August, Bingham prevailed on the first ballot, though his acceptance speech was cut short “by the arrival of the train which was to convey most of the delegates to their homes.”40 The Democrats did not bother to put up a challenger, and Bingham waltzed to victory in November over an independent candidate with 65 percent of the vote.41 Following the election, Bingham wrote to Salmon Chase and expressed his unease about President-Elect Lincoln: if “the administration should be eminently conservative in the modern and bad sense of that word, then the administration will be a pitiful failure.”42 “We are not and will not be as strong in the next House as in the present,” Bingham said, “and this will lead to timid artifices and base attempts to ignore our principles for the sake of our organization.” The better approach was “to stand by our principles, to labor for them and to wait for the positions of honor and power until we are strong enough to command them.” On the eve of secession, John Bingham was in no mood to negotiate.

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John Bingham in the early 1860s. Library of Congress.

The March toward Fort Sumter By the time Bingham returned to Washington, state conventions were being called in the South to debate the future of the Union.43 Frantic efforts began in Congress to develop a legislative package, much like the Compromise of 1850, to prevent civil war. The House voted to create a Special Committee for this purpose over the “no” votes of Bingham and Thaddeus Stevens.44 Bingham countered by asking the committee to report “additional legislation as they may deem necessary to suppress and put down armed rebellion against the laws and authority of the United States, to protect the property thereof against unlawful seizure, and the citizens thereof against unlawful violence.”45 In the midst of this

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turmoil, Bingham unburdened himself to Giddings, telling him in a letter that said “[b]urn this when read” that “[w]e are surrounded by traitors North and South against the Constitution.”46 Some want “to strike down Liberty by Secession,” while others “propose to betray Liberty to the Conspirators by compromise.” “[U]nless the people come to the rescue,” America would be “sold and cast down not by Secession—but by the Treachery or timidity of Republicans. And such stuff as this is to be put forward for the U.S. Senate in place of Chase if [he] goes into [the] Cabinet.” In January 1861, Bingham addressed the House on secession and explained that some may think that “compromise is best, that conciliation is best, and that the surrender even of principle, to some extent, is best. I am constrained to differ with them, to dissent, totally dissent, from all such opinions.”47 He was not an inflexible ideologue, but the “gallant, generous, but misled and distracted people” of the South were now engaged in a conspiracy against the Union.48 Secession denied all citizens their basic right to travel and “enjoy all the privileges and immunities of an American citizen.”49 “In the name of the people of the Republic, I declare that no power, save the sovereign power of the people themselves, can rightfully separate any portion of the country from the rest.”50 “The people,” he stated, “ordained the Constitution of the United States, not the States.”51 As a result, “[s]tates have no inherent rights; they have only derivative or delegated rights.”52 Constrained as he was by the precedent of 1776, Bingham agreed that the right to revolt was “sacred” and “bound up with the elements of the human soul,” but he rejected the argument that white southerners were on the right side of history in 1861.53 The right of revolution was not valid unless some conditions were met: “[A]ll peaceable means of redress must be first fairly and honestly tried, and must fail; and the cause of complaint, the grievance, must be so onerous that submission to it would be more dangerous to life and liberty than revolution or war. What just cause of complaint has the South, or any portion of her people, against this Government? There is none.” The only injustice that could justify a revolution was “that great wrong which dooms four million men and their descendants forever to abject servitude.” Bingham then dissected the compromise proposals under consideration.54 The most popular was a new constitutional amendment—known

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as the Corwin Amendment—that would have explicitly guaranteed the right of a state to have slavery and barred any other amendments on the issue.55 Calling this a tool of “perpetual despotism,” Bingham said that this was a dangerous plan that “strikes at the inherent right of the people to alter or amend [the Constitution] at their pleasure.”56 And, in a point that Lincoln would make in the Emancipation Proclamation, Bingham said that Congress could free “the slaves in time of war” and interfere with slavery within a state “in the exercise of the war power vested without limitation in this Government” unless the Corwin Amendment became law.57 He wrapped up with his usual dramatic flourish, calling on “the people and the people’s Representatives to maintain the Constitution in its integrity” and looking ahead to a day when “no State will banish men because they are just, or enslave men because they are weak, or . . . strangle men like felons on the gallows, because, in obedience to the Divine command, they remember those that are in bonds as bound with them.”58 High-minded as this was, Bingham’s address was also an audition for a Senate vacancy in Ohio. His note to Giddings referred to the rumor that Chase would become Treasury secretary, and the issue became public in a story from the New York Times that stated: “Letters from Ohio, received tonight, speak strongly of JOHN A. BINGHAM, of the present House, for successor to Senator CHASE, if the latter should leave the Senate for the Cabinet.”59 A Cleveland paper picked up on this chatter and said that a “better selection could not be made. He is one of the boldest, one of the most eloquent members of Congress. . . . He is no compromiser, but always stands firmly and unyieldingly by the right—a host in and of himself.”60 This endorsement was not what John Sherman, who coveted the Senate seat and was called “The Ohio Icicle” because of his ruthlessness, wanted to hear.61 On the same day that this sunny portrayal of Bingham was printed, Sherman was told by one of his friends that “Bingham will be your strongest competitor.”62 A journalist who was a proponent of Sherman’s candidacy responded by telling readers that the state legislature would need a “remarkable magnifying glass” to raise Bingham “to such a pinnacle of greatness.”63 That cutting line proved prophetic, as Bingham’s campaign never got off the ground, and Sherman was sent to the Senate that March.64

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As the nation drifted toward war, Bingham lashed out at his critics. In another letter to Giddings, he lamented that the “[p]ress is full of everything for compromise and carefully excludes every word said against compromise.”65 The slogan of these leaders was “compromise the Constitution, betray Liberty, and lose the African.”66 When one voter wrote Bingham criticizing his hard-line stance on secession, he answered with a touch of sarcasm by thanking him and all those “who kindly tell me my faults.”67 The critic had pointed out that the Framers had compromised and let the foreign slave trade continue until 1808, so why could Bingham not do something similar? His response was that “they did the best they could” and that “I do not hear anyone say they would now sanction that great crime for twenty years.” “[N]othing is to my mind clearer than this,” Bingham added, “that under God, we can only have a united country, by maintaining the Constitution as it is” and by rejecting an amendment that would turn the Republic “into a Representative Despotism.”

Abraham Lincoln and Emergency Legislation In these dark days, Bingham’s spirits were lifted by the arrival of the president-elect.68 Their first meeting took place in February 1861, and Bingham recalled that “Lincoln impressed me as a blunt man of great mental strength and thorough honesty. . . . A few days after this I met him in his room at the Willard Hotel . . . to add my recommendation with others for the appointment of Salmon P. Chase as Secretary of the Treasury. Ever afterwards the President received me with the utmost cordiality . . . and, I am grateful to say, manifested his confidence in me on many questions of public importance.”69 The final statement was an exaggeration, as there are only a few references to Bingham in Lincoln’s papers.70 Nevertheless, they did have some memorable talks. The most revealing of these encounters was Bingham’s meeting with Lincoln right after the Inauguration.71 Congress had passed the Corwin Amendment and sent it to the states for ratification.72 Lincoln endorsed the amendment, largely to persuade border slave states like Kentucky to reject secession. Thus, he said in his Inaugural Address that I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the

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Abraham Lincoln. Lithograph by John H. Bufford. Library of Congress.

effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.73

Bingham went to the White House and reminded Lincoln that he had, in fact, seen the Corwin Amendment.74 The president responded with surprise, and Bingham departed with the impression that “[m]anifestly some one had falsely reported the character of the amendment to Mr. Lincoln, and had misled him.”75

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This conversation illustrates why Lincoln was a master politician who became president and Bingham was just a good politician who never went beyond the House of Representatives. It is hard to believe that Lincoln made a mistake in his choice of words. Instead, he was trying to tread carefully between Republicans such as Bingham who were against compromise and conservatives who favored an accommodation with the South. As a result, the president expressed formal support for a pro-slavery amendment but distanced himself from the idea with the passive description that he “understood” that Congress had acted but did not know the details. When Bingham called Honest Abe on this point, Lincoln brushed off his concern by pretending that he was unaware of the truth. That was an artful way of disarming a potential critic. Bingham was in Washington when General P. G. T. Beauregard ordered his Confederate men to fire on Fort Sumter, and a week later the congressman returned to Cadiz to speak to a crowd that had gathered to volunteer for the Union army.76 According to a nineteenth-century description, “[t]he courthouse was filled to overflowing and many were unable to get seats. Hon. John A. Bingham addressed the meeting for about an hour in a strain of melting eloquence which stirred the audience as a tornado stirs the forest.”77 He said: “I repeat now what I have said in my place as your Representative last January; the question of today is not whether the Constitution of your country shall be amended, but whether the Constitution shall be maintained. Upon the solution of this question depends the fate of the Republic.”78 Bingham had little time to spend with his new son, John Jr., who was born in 1861.79 The president summoned the Thirty-Seventh Congress into special session, and Bingham was back at the Capitol for its first meeting on July 4.80 Amanda stayed with the children, and Bingham returned to his convivial boardinghouse on Pennsylvania Avenue.81 With the walkout of southern Democrats, the Republicans now held a lopsided majority in the House, and Bingham found himself playing a crucial, if unconventional, role in the party leadership. The chairman of the Judiciary Committee was John Hickman of Pennsylvania, but he was often ill.82 Consequently, Bingham typically served as the acting chair and managed the committee’s bills on the floor. He drafted legislation that authorized the mustering of the militia to suppress the

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rebels, which confirmed a decision already taken by Lincoln.83 Bingham tried to do the same for the president’s suspension of the writ of habeas corpus, an action taken in order to hold Confederate sympathizers in jail indefinitely without charge, but he was unable to secure enough votes at that point.84 Bingham also wanted to give the army authority to free slaves held by the rebels as a war measure, declaring that “a traitor should not only forfeit his slaves, but he should forfeit his life.”85 This was what Lincoln ended up doing in the Emancipation Proclamation. The most vexing question that Congress faced was how to pay for the conflict. Bingham supported a substantial tax on land, telling his colleagues that “one hundred thousand men at least, armed rebels, are within forty miles of the spot upon which I now stand, conspiring to shake down the pillars of your temple of liberty, and to blot out forever this last experiment of free representative government.”86 “It is well known,” he stated, “that your Treasury is empty; and in order to supply the necessary wants of the Government in this war for the Union against armed rebellion, you must replenish the Treasury.”87 A temporary solution was reached through loans and some modest tax hikes, but the financial issue would soon be back on the agenda.

Organizing for Victory When Bingham returned to Ohio in August, his top priority was to solidify support for the war after the First Battle of Bull Run failed to dislodge the Confederates in Virginia. Republicans and like-minded Democrats sought to create a Union Party and gathered in Columbus for that purpose.88 Bingham told Joshua Giddings that he had high hopes for this convention, but came away disappointed by its refusal to endorse his resolution praising Lincoln.89 When the convention also declined to support the policies of the Republican governor of Ohio, Bingham voted against the platform.90 Still, the fusion Union ticket prevailed across the state in the fall, giving him every reason to think that his political base was secure. The regular session of Congress met in December, and Bingham labored to defend what was thus far a lackluster war effort. Democrats introduced a resolution claiming that Lincoln had violated the Constitution by suspending habeas corpus without the approval of Congress,

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but it was tabled after Bingham commented, “When rebellion has lifted up its hands over one half of the Republic . . . it is no time to be splitting hairs and carping about the question whether Congress or the President shall first exercise the power.”91 Privately, he was sad over the lack of action to free slaves, telling Giddings that too much “dough” existed in Washington to make it happen.92 “Congress,” he told his friend, “ought to act and not find fault with the President.”93 With respect to the prosecution of the war, Bingham was on hand for one of Lincoln’s most crucial decisions. The president was unhappy with the poor performance of Secretary of War Simon Cameron, who was so corrupt that Thaddeus Stevens said that the only thing he would not steal was a “hot stove.”94 The search for a successor turned to Edwin M. Stanton, Bingham’s old sparring partner from Cadiz.95 After a distinguished legal career, Stanton served as attorney general in the last few months of the Buchanan administration and was respected across the aisle.96 The president had good reason to be skeptical of Stanton, though, as he was a Democrat and had snubbed the unknown lawyer from Illinois when the two worked together on a case in the 1850s.97 At the White House, Lincoln asked Bingham for his opinion, and he replied that Stanton was the best man for the job.98 Bingham then wrote Stanton and urged him to accept the appointment.99 The change was good for the country, as Stanton was an able administrator and would be a steadfast supporter of the Fourteenth Amendment. Stanton’s appointment was also a boon for Bingham’s career, as the war secretary would get his friend named one of the assistant judge advocate generals in the high-profile Lincoln conspiracy trial three years later.100 Turning back to Congress, another debate was in progress about the war budget, and Bingham took the opportunity to make broad claims about congressional power.101 He explained that in his view many of the protections of the Bill of Rights simply did not apply in wartime “because the safety of the Republic is the supreme law; because every citizen, by the very constitution of Government, holds his property and life in trust for the common defense.”102 Bingham noted that men drafted into the army faced death without due process of law, and that captured enemy property was sold without providing just compensation to its owners.103 As a result, “that expression of the Constitution,

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due process of law, means only the law of the land,” by which he meant that in war the government could not act illegally but that Congress was the final authority on what was legal, not the courts.104 This was in sharp contrast to Bingham’s view of due process in peacetime, where the Constitution imposed robust limits on what Congress could do on subjects such as slavery. He added that “Congress is the sole judge of what legislation is ‘necessary and proper’ for the common defense, the suppression of insurrection, the repelling of invasion, and the defense of the Constitution. The word necessary as used is not limited by the additional word ‘proper,’ but enlarged thereby.”105 Bingham concluded that the Framers “wisely committed this unlimited power to Congress, the department nearest to the people, and most directly responsible to the people.”106 Armed with this understanding, Bingham signed off on Treasury secretary Chase’s proposal to print $150 million in paper money (in other words, money that could not be redeemed at a bank for gold or silver) to pay the troops.107 Chase told Bingham that this request was “a matter not merely of expediency but of necessity” because there was not enough gold or silver available, but many questioned whether Congress could issue money backed only by the full faith and credit of the United States.108 Bingham defended Chase’s proposal by arguing that nothing in the Constitution prohibited the Treasury from doing this, and that money was anything “which the sovereignty thereof declares to be money and makes money.”109 The enactment of the Legal Tender Act in 1862, along with the establishment of the first federal income tax in 1863, put the Union on a sound fiscal footing.110 Meanwhile, Bingham continued to agitate for restrictions on slavery but stopped short of calling for full emancipation in loyal slave states.111 For example, he was one of the leading proponents of the legislation that ended slavery in the District of Columbia.112 Speaking on behalf of this bill in April 1862, Bingham said that the Constitution was a “new Magna Charta to mankind [that] declares the rights of all to life and liberty and property are equal before the law.”113 To those who said that it was not the right time to free slaves, Bingham answered that “[t]he time never was and never can be unpropitious for an honest endeavor to do right.”114 He then offered up this gem that could be applied to every movement for freedom:

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We are deliberating here today upon a bill which illustrates the great principle that this day shakes the throne of every despot upon the globe, and that is, whether man was made for government or government made for man. Those who oppose this bill, whether they intend it or not, by recording their votes against this enactment, reiterate the old dogma of tyrants, that the people are made to be governed and not to govern. I deny that proposition. I deny it because all my convictions are opposed to it. I deny it because I am sure that the Constitution of my country is against it.115

“One year ago this day,” Bingham concluded, “slavery opened its batteries of treason upon your garrison in Fort Sumter at Charleston; let the anniversary of that crime be signalized by the banishment of slavery forever from the national capital.”116 The rest of this session was productive even though the Union army was struggling and Robert E. Lee was about to invade Maryland. Bingham voted for the Homestead Act of 1862 that gave free land to settlers, the creation of the Department of Agriculture, and funding for the Pacific Railroad.117 He took the lead in the impeachment and conviction of West H. Humphreys, a federal district judge in Tennessee who had defected to the Confederacy.118 And Bingham took care to bring hardship cases from Ohio to the president’s attention. For instance, a widow with three sons serving in the army pleaded for the return of her youngest, only sixteen, saying that “she could not live any longer without her little Benjamin.”119 When he relayed this story to the president, Bingham recalled that Lincoln stated: “Tell that poor women she shall have her little Benjamin, that I have ordered his transportation home; tell her to return home, and her boy will be there as soon as she will.”120 There was no doubt that Bingham was an admirer of the president, although he did say that Lincoln “was the saddest man I ever met.”121 On the other hand, “few men could illustrate a point better than Lincoln by a homely story. There was always playful humor about him which seemed to be thoroughly incorporated in his nature, as a kind of offset against his constitutional sorrow and sadness.”122 He was sure that “Lincoln would have gone to death without a shudder, if he had been put to the real test,” and called him a “statesman of the highest order . . . a patriot without guile and without fear, always anxious to do his duty regardless of the consequences to himself.”123

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The 1862 Congressional Election Bingham returned to Cadiz to personal pain and political danger. His infant son, John Jr., died suddenly of scarlet fever, which must have evoked flashbacks to his son Henry, who was ripped from the family by illness seven years earlier.124 There was no time to mourn, though, as Bingham was in jeopardy of losing his seat. Part of the problem was simple war fatigue, but there were two more concrete issues. The first was that the boundaries of his congressional district were changed following the 1860 census in a way that made victory more challenging. Walter Shotwell wrote in his local history that “[i]nstead of the two staunch Republican counties of Jefferson and Columbiana, he now had Tuscarawas, reliably Democratic, and Belmont, very doubtful; while the Republican majorities in the other counties were small.”125 The other handicap was that state law did not let soldiers at the front vote by absentee ballot, and they were mostly Republicans.126 This time around Bingham had no trouble getting nominated, probably because any potential challengers sensed that a Republican would not win in November. His critics in the press went after his views on racial equality, with one urging voters to “[l]et him harbor among his kind! Let every white, laboring man in the State avoid him as they would a viper!”127 Bingham campaigned hard, but this time in vain. He was swamped by his opponent, Joseph White, and got just 45 percent of the vote in what was an excellent Democratic year.128 Giddings wrote to commiserate, and Bingham replied by blaming his loss on redistricting and the lack of military voting while claiming (as is often the case when politicians lose) that he was the victim of fraud.129 Defeat always provides an opportunity for introspection, and the circumstantial evidence suggests that the change in Bingham’s constituency soured his appetite for political risk somewhat. All of the elections in his old district were uneventful, and he was widely seen as one of the most anti-slavery Republicans in Congress. Indeed, there was no real difference before 1862 between Bingham and Thaddeus Stevens, who was the leader of the Radical Republicans during the first part of Reconstruction. After 1862, however, Bingham’s races were tighter (because he was saddled with more Democrats), and he was often characterized as a moderate.130 While the issues in the antebellum and postbellum periods

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were different, one likely explanation for Bingham’s shift is that he had to become more careful to survive. While he did not become a shrinking violet upon his return in Congress in 1865, he would be a little more eager to seek common ground. As he once explained, “[T]he principle which has always governed my action; a principle that statesmen cannot well afford to ignore; that if you cannot obtain what you would obtain, then you should take what you can get.”131

First Retirement from the House When Bingham arrived for the finale of the Thirty-Seventh Congress in December 1862, he was still full of fire for the Union cause. He was on the conference committee with the Senate that negotiated the details of the Habeas Corpus Suspension Act of 1863, which confirmed and regulated the president’s suspension of the writ.132 Bingham also steered the bill admitting West Virginia (the Union portion of Virginia) as a state, in spite of the Constitution’s command that “no new states shall be formed . . . within the jurisdiction of any other state.”133 Bingham argued nonetheless that if “the majority become rebels in arms, the minority are the State; that the minority, in that event, have a right to administer the laws, and maintain the authority of the State government.”134 His leadership on that issue led some to suggest that he move to the new state, which was not far from Cadiz, and stand for election as one of its senators, but he declined.135 The most theatrical part of Bingham’s tenure came when he challenged antiwar Democrats (“Copperheads”) who argued that Lincoln should recognize the Confederacy and open peace talks with Jefferson Davis following the Union defeat at the Battle of Fredericksburg.136 The debate began when Samuel Cox, a Democrat from Ohio, taunted Bingham by asking “whether he was not beaten in his canvass for Congress because he belonged to a sectional party?”137 He replied: “I do not believe I was beaten at all, but simply swindled out of the election.  .  .  .  [N]o county of the district which I represent has, either at the last election or any other, repudiated me or my principles. Let the gentleman put that in his pipe and smoke it.”138 A few days later, Clement Vallandigham, another Ohio Democrat who was the leader of the Copperheads, argued that, following the Emancipation Proclamation, ”[w]ar for the

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Union was abandoned; war for the negro openly begun. . . . With what success? Let the dead at Fredericksburg and Vicksburg answer.”139 He held that “two years, sir, of blood and debt and taxation and incipient commercial ruin are teaching the people of the West, and I trust of the North also, the folly and madness of the crusade against African slavery, and the wisdom and necessity of a union of the States, as our fathers made it, ‘part slaves and part free.’”140 Bingham saw this as treason, and he gave a response that riveted the House.141 “An apology for the unmatched crime of the rebels in arms against the nation’s life,” he said, “ought not to be allowed to go to the country unchallenged.”142 Vallandigham’s call for surrender was “the last phase of that Democracy which has brought this ruin upon the country.”143 Even now, Bingham declared, Vallandigham “could not find it in his heart to denounce the rebellion as unconstitutional . . . only [that] the war on the part of the Government for the suppression of that rebellion is unconstitutional.”144 At the end of this speech the House gallery burst into applause, and one newspaper commented that it was “a remarkable specimen of extempore eloquence. Mr. Bingham seldom uses any notes at all, and never writes a speech. It is a public calamity in such times as these to have such a public man—so able, so experienced in public affairs; so elevated in his aspirations, so able, patriotic, influential and true, and so unblemished in every noble virtue—pass from the national counsels into private life.”145 As Congress drew to a close, Vallandigham and Bingham tangled again over legislation to create a military draft, and that fight demonstrated what Bingham meant when he said that constitutional rights were largely suspended in wartime. When the Ohio Democrat said that the bill violated the First Amendment by making it a felony to induce men to resist the draft, Bingham replied that “freedom of speech is the inborn right of every man, whether citizen or stranger, but it is a right that he may not exercise to the detriment of the Commonwealth.”146 It was “the clear, constitutional right of the American people, by law, to punish . . . every man who, by oral speech or writing, publicly or privately, encourages armed rebellion against the Constitution and laws of the Republic.” He added that a man who wrote “stop, brother Democrats, stay at home and vote, and let the Army of the Union perish,” should “not only be arrested and imprisoned, but the man who, in such an hour of peril, would attempt to

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keep back citizens from the defense of their homes and the relief of their brothers in arms, should not only be imprisoned, but should be hung by the neck, without judge or jury, till he be dead.”147

Searching for Meaningful Work As the Civil War neared its decisive moment at Gettysburg, John Bingham was unemployed. He initially hoped that he would get a judgeship on the U.S. Court of Claims, which heard contract disputes involving the federal government, but he was not chosen.148 There was a rumor that he would be named the chief judge of the District of Columbia, but that also went nowhere.149 Then he wrote Treasury secretary Chase and offered himself for the vacant position of chief justice of the Nevada Territory or as a U.S. Attorney in California.150 While Bingham said it was not his “purpose to clamor for place,” he thought he was “as much entitled to consideration at the hands of the present Adm[inistration] as many who have been especially cared for by it.”151 Lincoln decided that Bingham should be nominated as a federal district judge in Florida, which was now under Union control.152 He sent Bingham a congratulatory telegram telling him that “[i]t is indispensable for us to have a judge at Key-West, as soon as possible. Please inform me whether you will go.”153 While he was eager for a job, Bingham stated that he was “constitutionally averse to living in a Slave-holding state.”154 After some indecision, he turned down the nomination.155 Bingham next turned his gaze to Ohio and the Republican nomination for governor.156 The Ashtabula Sentinel, which was closely aligned with Giddings, boosted Bingham’s candidacy by saying that he would “grace and dignify the office of Governor by talent, culture, and a general combination of those qualities that go to make up the man of true standard.”157 He received encouragement from his House colleagues and from activists in his home region, but he ultimately withdrew in favor of John Brough, a railroad tycoon who was more appealing to independent voters.158 When the state party convention met, Bingham’s name was put forward for a seat on the Ohio Supreme Court, but he was beaten by a large margin.159 Despite these setbacks, Bingham was engaged in the fall campaign—a winning one for Republicans—and received praise from one official as “an artist in his work” on the stump.160

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Off the campaign trail, Bingham was trying to make a living and thinking about the nation’s future. He continued to practice law, though he no longer had a partner, and explored a book contract for his speeches, telling Giddings that “several thousand copies cheaply bound could readily be sold in this District.”161 (This was the last letter between them before Giddings’s death.) On the looming issue of how to handle the aftermath of the war, Bingham wrote to Chase that “the limitations of the Constitution upon the States in favor of the personal liberty of all of the citizens of Republic black & white [are] soon to become a great question before the people.”162 He favored the appointment of military governments in the Confederacy “as fast as they come under our military control,” and said that “free constitutional state governments” should be organized there.163 In January 1864, the president called on Bingham again, this time asking him to be a judge advocate—a military prosecutor and adviser to officers on a court-martial—with the rank of major.164 (This is why some people referred to Bingham as “Judge” in his later years.) Lincoln needed someone trustworthy to bring a case against Surgeon General William Hammond, who was accused of corruption in acquiring supplies for the army.165 Bingham went to the White House and explained that he knew nothing about military law, but according to his recollection, Lincoln said that no “common lawyer understands martial or military law, but I think you can learn it as soon as any man I know.”166 Besides, “if the Surgeon General is innocent, you will find it out and protect him.”167 Bingham wrote his wife, “I do not want it,” but apparently he decided that he could not refuse the president again.168 It is hard to draw a firm conclusion from the available records about the trial that resulted in Hammond’s dismissal for wrongdoing.169 What is known, however, suggests that the charges were based more on politics than on fact. Secretary Stanton wanted to get rid of the surgeon general, in part because Hammond was a friend of George McClellan, the cautious former commander of the Army of the Potomac, who was gearing up to run for president against Lincoln.170 The War Department investigated Hammond for six months, but he was given only two days to prepare his defense.171 There was a sense afterward that an injustice was done, and when President Rutherford B. Hayes reopened the case in 1878, Hammond was exonerated.172 There is no proof that Bingham

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engaged in misconduct during his prosecution, but the Hammond case was not a glorious moment in his career. Bingham was now shuttling between Washington and Cadiz, and in March he was dealt the greatest blow of his life. A bout of typhoid swept through Ohio and claimed the lives of his son Preston (age seven) and his daughter Jessie (age eight).173 All three of his sons were now dead, and there would be nobody to carry on the family name. There is no record of Bingham’s reaction to this double tragedy, but he and Amanda must have been devastated. The three oldest girls (Lucinda, Emma, and Marie) remained to comfort their parents, and a year later another girl, Martha, was born. Neither Bingham nor his children fought in the Civil War, but they suffered as much as any military family.

The 1864 Presidential Election In May 1864, Bingham began his political comeback. The first step was to separate himself from Treasury secretary Chase, who was a spent force in Ohio and was irritating Republican regulars with his attempt to mount a challenge to Lincoln’s nomination for a second term.174 When the Union Party Convention convened, a resolution was introduced praising Chase’s policies, probably to spur his presidential campaign.175 Bingham helped move Chase’s paper money legislation though the House, but now he came out against the resolution and for Lincoln’s nomination.176 Chase’s supporters were furious, calling him a turncoat who was behaving “based on grounds of lowest self-interest” and seeking “administration favor.”177 Bingham may have been fed up with Chase’s lack of support for his own efforts to climb to a higher office, or he might have simply concluded that Lincoln was the best choice. In any event, the president replied to Chase’s unsuccessful challenge by naming him chief justice to replace the late Roger Taney.178 While Bingham was preparing to run for Congress, Lincoln was hoping that he would stay in Washington. The president asked him to serve as the solicitor of the Court of Claims (in other words, the top government lawyer there), but Bingham declined the post in the summer of 1864.179 By this time, their personal relationship was warm. When Confederate general Jubal Early advanced on the capital with a force of 15,000 men from the Army of Northern Virginia that July, the

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city was caught unprepared and its citizens panicked.180 “I went early in the morning to the War Office,” Bingham wrote, and a man told him that a carriage was waiting outside to evacuate the president.181 When Lincoln emerged from the building, Bingham said to him, “I am sure now that the enemy is at the gates of the capital; you will not imitate a former President [James Madison during the War of 1812] who fled when the foe appeared before the capital?”182 “Oh, no,” Lincoln responded, “[t]here is a good deal of trouble among our boys, and I thought I had best go down amongst them.”183 This last-gasp attack by the men in gray was hurled back. In August, Bingham won the Union Party’s nomination for the House and squared off with Joseph White, the Democrat who beat him two years earlier. This time, though, the political winds were at Bingham’s back. The war was going better, especially after William Tecumseh Sherman seized Atlanta in September, and the state legislature had passed a law allowing absentee voting by the troops.184 There is not as much information available about this campaign as about others, but the change in the electoral rules was crucial. When the votes were counted within the district, Bingham lost again.185 But the soldier vote was in his column, and he won overall with 53 percent.186 This was part of a grand Republican triumph, as Lincoln and his new vice president, Andrew Johnson, a loyal Democrat from Tennessee who was put on the ticket to attract crossover votes, won easily and pulled in an overwhelming majority in both houses of Congress.187 In the interlude between the election and Lincoln’s Second Inaugural, Congress ratified the Thirteenth Amendment, which would end slavery forever, though Bingham was not a member of the House when that vote was taken.188 The congressman-elect had every reason to think that he would be working with the president “to bind up the nation’s wounds.”189 It was not to be.

6 the trial of the century Who will dare to say that in time of civil war “no person shall be deprived of life, liberty, and property, without due process of law?” This is a provision of your Constitution than which there is none more just or sacred in it; it is, however, only the law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inoperative and disregarded. John A. Bingham, 1865

On March 4, 1865, John Bingham stood among the crowd at the Capitol to hear the president’s Second Inaugural Address. “With malice toward none, with charity for all, with firmness in the right as God gives us to see the right,” Lincoln said, “let us strive on to finish the work we are in, to bind the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan—to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”1 Bingham was moved by the president’s soothing words, recalling, “[I]t seemed to me that there was a strange emotion about him at that time that I never observed before.”2 Another man in the crowd that day was not so impressed—John Wilkes Booth.3 Five weeks later, Lincoln was dead, and Secretary of War Stanton asked his old friend to join the prosecution team that would bring justice to Booth’s alleged accomplices.4 Bingham promptly plunged into one of the most notorious trials in our nation’s history.

Conspiracy The plot that ended at Ford’s Theatre began as a plan to kidnap the president and send him to Richmond as a hostage.5 In August 1864,

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Booth met in Baltimore with an old classmate from military school, Samuel Arnold, and with Mike O’Laughlen, a friend who had served in Arnold’s Confederate regiment.6 Booth had no combat experience, but he convinced Arnold and O’Laughlen that they could capture Lincoln’s carriage during one of his pleasure rides in the country.7 The commander in chief could then be exchanged for thousands of prisoners or used as a bargaining chip to demand a Union cease-fire. For months the plan was dormant, but by March 1865, Booth had recruited four others to his gang.8 David Herold worked at a pharmacy; John Surratt was a Confederate who helped spies move in and out of Washington; Lewis Powell (who also went by Lewis Paine) was an ex-Confederate soldier from Florida; and George Atzerodt was a coach painter.9 On March 17, these seven men laid in wait for the president along a lonely road, but Lincoln did not take the route that they expected.10 After that failure, the group fell apart. John Surratt left Washington and was not captured until 1866.11 Arnold declined to play any further role in the plot, although he did not tell the authorities about Booth’s activities.12 O’Laughlen’s subsequent conduct was murky, but he also probably did not participate in the conspiracy again. The catalyst for the assassination was a speech that Lincoln gave at the White House on April 11 to mark Lee’s surrender to Ulysses S. Grant. Booth and Herold were there when the president suggested that African American soldiers should get the right to vote.13 “That means nigger citizenship,” Booth told Herold. “[T]hat is the last speech he will ever make.”14 The inner core of Booth’s group met three days later, on Good Friday. They agreed that Booth would kill the president that night, Atzerodt would take out Vice President Johnson at his hotel, Powell would slay Secretary of State William Seward at his home, and Herold would assist Powell and Atzerodt.15 Atzerodt did go to Johnson’s hotel armed with a pistol and a knife, but after drinking at the bar he lost his nerve and left.16 Powell, on the other hand, entered Seward’s home pretending to be a messenger and stabbed Seward, though not to death.17 Booth, of course, succeeded in his bloody mission and fled into Virginia with Herold, but twelve days later Union troops overtook them, killing Booth and capturing Herold.18 Powell, Atzerodt, Arnold, and O’Laughlen were quickly arrested.

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John Wilkes Booth, actor and assassin. Photograph by Alexander Gardner. Library of Congress.

Three other people were charged with being members of the conspiracy, but the evidence against them was not as clear. Edman “Ned” Spangler worked at Ford’s Theatre and helped Booth escape by keeping a horse saddled for him at the rear entrance, though Spangler claimed that he did not know that the actor would kill the president.19 Samuel Mudd was a doctor who furnished Booth with medical care when the fugitives came to his house after the murder.20 He argued that he was unaware of the conspiracy and did not learn of Lincoln’s death until after Booth arrived, though he did let Booth leave once he knew the truth.21 Then there was Mary Surratt, the mother of John Surratt, who

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owned the boardinghouse where some members of the conspiracy lived and met but claimed that she did not know anything about the plot.22 Bingham was in Cadiz when he learned the terrible news and was deeply shocked. A few days later, at a memorial service in town, he offered these thoughts about Lincoln: The best and finest tribute which the people can pay to the memory of their fallen chief is to . . . follow the lesson of his life, fidelity, even unto death, to the Republic and its just and equal law of liberty to all. . . . [I]t must be to our martyr President and defenders a new joy to know that with their death the nation’s life is assured, and that inspired by their great example, the millions who survive them are as one.23

In response to Stanton’s telegram the day after the assassination asking him to join the prosecution, Bingham returned to Washington.24 He was soon interrogating Herold, who claimed that he was innocently traveling with Booth.25 Many of the president’s advisers suspected that the conspiracy was hatched in Richmond, and Bingham made that claim during the trial, though no solid proof emerged of official Confederate involvement.26

Military Justice or Jury Trial? The most important decision about how the prisoners would be treated came on May 1, when President Johnson issued an executive order providing that a military commission be convened to try the alleged conspirators.27 Nine officers were appointed to act as the judges, including Lew Wallace, who later gained fame as the author of Ben Hur.28 Judge Advocate General Joseph Holt, a Democrat who had served as President Buchanan’s last secretary of war, was named to lead the prosecution.29 Bingham and Henry L. Burnett, a military lawyer who had worked with Holt, were picked as special judge advocates to offer assistance.30 Stanton was almost certainly behind Bingham’s appointment, as the case required a mix of legal and trial skills that few others possessed. In a sense, the trial of the Lincoln conspirators was a war crimes trial, although the leaders of the rebellion were not the ones being prosecuted.

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The prosecution team: John Bingham, Joseph Holt, and Henry L Burnett. Library of Congress.

The constitutionality of this military process was attacked by the defendants and defended by Bingham in a debate that bears some resemblance to the one that broke out with respect to citizens who were accused of terrorism following the September 11, 2001, attacks.31 President Johnson offered no public rationale for his decision to use a military court until the trial was over and the death sentences were carried out.32 That omission was based on confidence that military officers picked by the president would not rule that their own court was illegal.33 Many eminent lawyers, though, were deeply troubled by the denial of a jury trial and other procedural protections in this case. Lincoln’s first attorney general, Edward Bates, wrote: “I am pained to be led to believe that my successor, Attorney General Speed, has been wheedled out of an opinion to the effect that such a [military] trial is lawful. If the offenders are done to death by that tribunal, however truly guilty, they will pass for martyrs with half the world.”34

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Senator Reverdy Johnson of Maryland (no relation to the president) argued on behalf of the accused that a military trial for civilians was unconstitutional when the criminal courts were open.35 The senator held the dubious honor of being the man who had argued and won Dred Scott in the Supreme Court, but in this case he was standing up for honorable constitutional rights.36 Johnson’s logic was simple. The defendants were citizens, and the courts were open. Thus, the accused were entitled to a jury trial and the other criminal procedure guarantees in the Bill of Rights.37 In support of that conclusion, Johnson explained that the Fifth Amendment provided that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in active service in time of war or public danger.”38 The explicit exception for military forces was proof for him that no other exception existed for this rule or for the Sixth Amendment’s guarantee of a jury trial.39 Otherwise, the freedom “which our fathers thought so vital to individual liberty when assailed by government prosecution, is but a dead letter, totally inefficient for its purpose whenever the Government shall deem it proper to try a citizen by a military commission.”40 He said that the idea that ordinary courts could not be trusted to handle this case was an attack on “our civil institutions themselves—upon the very institutions on whose integrity and intelligence the safety of our property, liberty and lives, our ancestors thought, could not only be safely rested, but would be safe nowhere else.”41 Senator Johnson rejected the claim, which Bingham had made in Congress, that the Due Process Clause simply did not apply in wartime. He argued that there “is not a syllable in the instrument that justifies, even plausibly, such a qualification.”42 Moreover, fundamental liberties “are more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other.”43 After all, “[i]nnocent parties, sometimes by private malice, sometimes for a mere partisan purpose, sometimes from a supposed public policy, have been made the subjects of a criminal accusation.”44 Johnson concluded with a ringing denunciation of “the

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Senator Reverdy Johnson, who argued on behalf of Mary Surratt during part of the conspiracy trial. Library of Congress.

jurisdiction of the Commission, not only because neither Constitution nor laws justify, but, on the contrary, repudiate it, but on the ground that all the experience of the past is against it.”45 Bingham responded by asserting that the Habeas Corpus Suspension Act of 1863, which he had helped draft, authorized the use of military commissions for civilians until the elected branches said that the rebellion was over.46 In September 1862, Lincoln issued an order declaring martial law, suspending the writ of habeas corpus, and providing for the use of commissions to try “all persons discouraging volunteer

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enlistments, resisting militia drafts, or guilty of any disloyal practice.”47 Congress confirmed this order in the Suspension Act, Bingham said, and the end of martial law was a “political question” that could not be reviewed by any court.48 Though the Army of Northern Virginia was gone, neither Congress nor the president had “declared the insurrection ended, and the event on the 14th of April, which robbed the people of their chosen Executive, and clothed this land in mourning, bore sad but overwhelming witness to the fact that the rebellion is not ended.”49 This was not an abstraction, as Union troops had been killed in the field “since this trial began.”50 As for Johnson’s point that the courts were open, Bingham answered that they “are closed throughout half the republic, and were only open in this District on the day of this confederation and conspiracy, on the day of the traitorous assassination of your President, and are only open at this hour, by force of the bayonet.”51 On the question of why martial law was constitutional, Bingham made a necessity argument and drew from Chief Justice Marshall’s opinion in M’Culloch v. Maryland. He told the panel that “the truth is that the right of the people to claim and execute martial law is a necessary incident of war,” and “[m]artial law and military tribunals are as essential to the successful prosecution of war as are men, and arms, and munitions.”52 Congress’s power to suspend habeas corpus, Bingham added, meant that in wartime “the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation.”53 Finally, Bingham cited M’Culloch’s line that the federal government “must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. . . . The powers of the government were given for the welfare of the nation; they were intended to endure for ages to come, and to be adapted to the various crises in human affairs.”54 This was exactly what martial law represented in this crisis, as Congress gave the president “to employ, in the prosecution of the war, the ordinary means, and all the means necessary and adapted to the end.”55 The special judge advocate general also contended that providing a jury trial to the alleged conspirators would give them more rights than a Union soldier accused of a crime, which was an absurd result.56 “If there is any one entitled to this privilege of a civil trial, at a remote period, and by a jury of the District, IN TIME OF CIVIL WAR, when the

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foundations of the republic are rocking beneath the earthquake tread of armed rebellion,” Bingham said, “that man is a defender of the republic.”57 He accused defense counsel of arguing that the soldier “who shot Booth, should be tried and executed by sentence of a military court; while Booth’s co-conspirators and aiders should be saved from any such indignity as a military trial!”58 More broadly, Bingham asked, “If you cannot, and do not, try the armed enemy before you shoot him, or the captured enemy before you imprison him, why should you be held to open the civil courts and try the spy, the conspirator, and the assassin, in the secret service of the public enemy, by jury, before you convict and punish him?”59 While Bingham’s constitutional logic was consistent with what he had said about “due process of law” before the assassination, his argument was undermined by innuendo directed at Senator Johnson. Instead of treating Johnson’s position as a good faith effort to defend his client and the rule of law, Bingham charged that he offered the commission “a political harangue, a partisan speech against his government and country, and thereby swelled the cry of the armed legions of sedition and rebellion that but yesterday shook the heavens with their infernal enginery of treason.”60 “[T]he speech in its tone and temper,” he said, “is the same as that which the country has heard for the last four years uttered by the armed rebels themselves and by their apologists.”61 This charge was not fair, though Bingham’s dislike for a man who had defended slavery was understandable. Johnson and the other lawyers for the defendants were acting in the best tradition of the profession by fighting for civil liberties and for unpopular clients.62 A year after the conspiracy trial, the Supreme Court rejected Bingham’s broad theory of martial law in Ex Parte Milligan.63 Milligan was a civilian in Indiana who was convicted and sentenced to death by a military commission for aiding the rebellion.64 He sought a writ of habeas corpus, and the Court began its discussion by explaining that now “that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.”65 The Constitution “is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”66 No doctrine more dangerous, the Court said, “was ever

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invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”67 In granting Milligan’s petition and vacating his conviction, the Court was careful to limit its holding to states that were not in rebellion, which left open the question of whether military justice could be imposed on civilians in the occupied South.68 What was clear, though, was that “[m]artial law can never exist where the courts are open.”69 Buoyed by this decision, three of the defendants who were convicted and sentenced to prison for their role in the Lincoln conspiracy sought habeas corpus, arguing that their confinement was unlawful.70 In 1868, a federal district court rejected their plea. Milligan did not hold “that if any army had been encamped in the State of Indiana  .  .  .  and any person . . . had, not from any private animosity, but from public reasons, made his way within the army lines and assassinated the commandeering general, such a person could not have been legally tried for his military offence by a military tribunal.” The District of Columbia, unlike Indiana, was “a fortified city, which had been invaded during the war  .  .  .  and was the headquarters of all the armies of the United States, from which daily and hourly went military orders.” Moreover, “[i]t was not Mr. Lincoln who was assassinated,” the district court said, “but the Commander in Chief of the army for military reasons.” This was a narrow reading of Milligan, and the district court’s position that the assassination was for military purposes rather than revenge is open to question.71

The Proceedings and Bingham’s Summation The trial of the alleged conspirators began on May 12 at the Old Arsenal Penitentiary in Washington, and what transpired over the next six weeks was quite different from an ordinary criminal trial.72 There was no jury or right of appeal to a civil court. Military prosecutors (but not the defense attorneys) were allowed to sit in on the deliberations of the officers about guilt and punishment.73 Pleading standards were also more flexible, which permitted the government to invent the charge of “traitorous conspiracy” for the defendants. This decision was made in part to avoid charging them with treason, which must be proved under strict guidelines set forth in Article Three of the Constitution.74 As there

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was no precedent for traitorous conspiracy, the defendants objected that they could not defend themselves, since they did not know what their alleged crime was.75 Bingham always maintained that the trial was fair, as the defendants were represented by lawyers and were able to compel the attendance of helpful witnesses.76 The trial transcript summarized the testimony rather than providing a verbatim record of questions and answers, but a few observations can be made about Bingham’s approach in what would be his last criminal trial.77 First, he was the most combative of the three prosecutors, and his objections were often framed in language that refused to concede that there was a good faith basis for a defense question or point.78 In this respect, Bingham’s conduct was not different from that of many attorneys, but because this is the only detailed evidence of his courtroom demeanor, it is fascinating to see that his style was so aggressive. Second, he contended that the service of some of the accused in the Confederate army was proof of their guilt in the conspiracy. When challenged on this broad assertion, Bingham responded that history “attests how kindred to each other are the crimes of treason against a nation and the assassination of its chief magistrate. I think of those crimes the one seems to be, if not the necessary consequence, certainly a logical sequence from the other.”79 Indeed, he went so far as to say that “everybody else that entered into the rebellion, entered into it to assassinate everybody that represented this Government.”80 This argument was unsound because it conflated two different things and, as defense counsel pointed out, could be applied to any Confederate soldier as evidence of guilt in the assassination.81 Judge Advocate Holt took most of the witnesses during the trial, but Bingham gave the closing argument for the prosecution.82 It was a spellbinding performance that lasted two days, and one man in the courtroom stated that Bingham’s “invective burned and seared like hot iron. But when he touched upon the great and lovable qualities of the martyred Lincoln his lips would quiver with emotion, and his voice became as tender and reverent as if he were repeating the Lord’s Prayer.”83 He began by denouncing what the defendants allegedly did as “a combination of atrocities with scarcely a parallel in the annals of the human race.”84 There was no doubt about the guilt of Booth’s allies on the day that Lincoln was killed—Powell, Atzerodt, and Herold—but the others

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Some of the judges of the military tribunal, with Bingham standing on the right. National Archives.

on trial had plausible arguments for their innocence or for escaping the hangman’s noose. Samuel Arnold and Mike O’Laughlen claimed that they were guilty only of conspiring to kidnap the president, not to slay him or anyone else.85 In O’Laughlen’s case, Bingham stressed that he was in Washington on the day of the assassination and was seen near Secretary Stanton’s house the night before the murder when General Grant was visiting, which implied that he was stalking the Union general.86 On the other hand, O’Laughlen did not do anything on the fateful night other than drink, though that could be because Grant left Washington that afternoon.87 Arnold’s defense was stronger since he was not in the city at any point in the days leading up to the assassination, and there was no evidence that he was in league with Booth after the unsuccessful abduction plan in March. Bingham contended that there was never any kidnapping scheme and that “[t]he Court can not fail to conclude that this statement of Arnold was but another silly device . . . he employed to

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hide from the knowledge of his captor the fact that the purpose was to murder the President.”88 The argument that Arnold was lying when he said that the original plan did not involve murder was wrong, but there is no reason to think that this error influenced the verdict. In the end, the commission gave Arnold and O’Laughlen life in prison.89 A finding of guilt was warranted given their role in the earlier plot, but the panel probably spared them from death because of doubts about their subsequent activity. O’Laughlen died in jail two years later, while Arnold was pardoned in 1869.90 Ned Spangler, the stagehand at Ford’s Theatre, may have been guilty of nothing more than being in the wrong place on the wrong day, though there was enough proof for a reasonable person to conclude otherwise. On the afternoon of the assassination, Booth asked Spangler to keep a horse ready for him at the rear of the theater. There is nothing to indicate, though, that Booth told Spangler why he wanted this routine task performed.91 The most powerful testimony against Spangler came from a witness who said that, as Booth was running from the stage after the shooting, Spangler said to him: “Don’t say which way he went” and “For God’s sake, shut up.”92 Another witness, though, claimed that this witness told him that Spangler had said: “You don’t know who it is—it may be Mr. Booth, or it may be someone else.”93 Nothing else clearly connected Spangler with the crime except that he was critical of Lincoln’s politics.94 Nonetheless, Bingham told the panel that “[t]he testimony of Spangler’s complicity is conclusive and brief.”95 They agreed and handed him a six-year jail sentence, the lowest given to any defendant, though he only served about four before being pardoned.96 Turning to Dr. Samuel Mudd, there was more proof of guilt, although some people still argue that he was not involved in the conspiracy. Mudd first met Booth in November 1864 and saw him twice in December, once with John Surratt.97 Mudd said that they discussed only the possibility of Booth buying Mudd’s house, which Bingham dismissed as false by asking: “What had Surratt to do with Booth’s purchase of Mudd’s farm?”98 The purpose of the meeting, he said, was to develop an escape route for the conspirators.99 Sure enough, on the morning after the assassination, Booth and Herold showed up at Mudd’s door seeking shelter and medical care.100 Mudd claimed that he did not recognize Booth and did not learn of the murder until they were about to leave.101

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Yet he let Booth and Herold go after he clearly knew who they were and what they had done, and when questioned by troops a few days later he was evasive.102 As Bingham observed, Mudd “was sorry, very sorry, that the thing had occurred, but not so sorry as to be willing to give evidence.”103 The commission imposed a life sentence on Mudd, but he was also later pardoned by President Johnson.104

The Case of Mary Surratt The last person in the dock was Mary Surratt, and Bingham’s part in her conviction and execution led some to call him a “woman-killer” who railroaded an innocent person.105 The fact that Surratt’s son was a conspirator to kidnap Lincoln and that some of the conspirators met in her boardinghouse with her knowledge was incriminating.106 The most damaging evidence, though, was that, on the day of the assassination, Mary went to see John Lloyd, a tavern keeper, to tell him that Booth would be coming to pick up guns and ammunition that her son had hidden with him.107 Lloyd testified that she stated: “I want you to have those shooting-irons ready; there will be parties here tonight who will call for them.”108 He also told the commission that she gave him a package from Booth that contained a pair of binoculars.109 (Booth and Herold did, in fact, pay a visit to Lloyd hours after the assassination.) Another damning fact was that—a few days later—Powell came to Surratt’s house while soldiers were conducting a search. When asked by them if she knew this stranger, she said no even though Powell had stayed at the boardinghouse many times.110 Bingham argued that “the mere fact of [Powell], in flying to her house for shelter, would have borne witness against her strong as proofs from Holy Writ,” and that her denial of knowing Powell was a guilty lie.111 In response to this evidence, Surratt’s attorney offered a forceful rebuttal. He claimed that Lloyd was an alcoholic and an admitted member of the conspiracy who was making up stories to avoid prison.112 Surratt’s failure to recognize Powell was blamed on her poor eyesight, which was not unlike Mudd’s claim that he did not realize who Booth was when he came calling.113 Bingham replied that although Powell’s visit was at night, the entry hall of the boardinghouse “was brilliantly lighted” when Surratt was asked to identify him.114 Finally, the defense

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tried to use Mary’s gender to her advantage by asserting that a woman was simply incapable of engaging in the kind of treachery that was alleged.115 (Bingham’s rejection of this sexist argument was, it must be said, his only significant contribution to the cause of gender equality.) It is hard to believe that Mary Surratt was completely innocent. She may have been guilty, like Arnold, of just being in on the kidnapping plot. Even if she was part of the murder conspiracy, though, it was hard to say that her culpability merited a death sentence. The fate of Mary Surratt divided the tribunal. The judges (and Bingham) were convinced that she was guilty, but they were torn about whether she should be given life in prison or death, especially because the United States had never executed a woman.116 Eventually, a compromise was reached under which she was sentenced to death, but five members of the commission signed a clemency petition—drafted by Bingham—asking President Johnson to commute her sentence.117 No clemency was forthcoming, though, and when one of Surratt’s lawyers obtained a writ of habeas corpus from a federal judge on the ground that the military commission was unlawful, the president suspended the writ.118 Accordingly, on July 7, 1865, she was hanged with Atzerodt, Herold, and Powell in the prison yard.119 When criticism of Mary Surratt’s execution became widespread a few years later, Johnson denied that he ever saw the commission’s request for clemency and blamed Joseph Holt for not presenting the petition to him.120 In 1873, Bingham told Holt that Johnson’s claim was false, for he “called upon Secretaries Stanton and Seward and asked if the petition had been presented to the President before the death sentence was by him approved, and was answered by each of those gentlemen that the petition was presented to the President, and was duly considered by him and his advisers.”121 Bingham said that Stanton had sworn him to secrecy on this issue, which was a cruel blow to Holt, who was pilloried for years for allegedly concealing the tribunal’s plea for mercy and thought that Bingham should have come to his defense.122 The criticism of Mrs. Surratt’s hanging was emblematic of growing unease about the entire military commission process. Those concerns exploded into public view two years after the trial in a debate between Bingham and Congressman Benjamin Butler of Massachusetts. Butler was one of the most flamboyant leaders to emerge from the Civil

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The execution of George Atzerodt, David Herold, Lewis Powell, and Mary Surratt. Photograph by Alexander Gardner. Library of Congress.

War, even though he started as a Democrat who wanted Jefferson Davis as the party’s nominee in 1860.123 He joined the Union army after the attack on Fort Sumter and was one of the first commanders to free the slaves who came under his control.124 Later, Butler became infamous as the head of the Union occupation in New Orleans, where he issued an order stating that if any woman in town showed contempt for a soldier she could be treated as a prostitute.125 Butler was elected to the House of Representatives in 1866 as a Republican and crossed swords with Bingham from the get-go, though it is not clear whether their hostility was the result of personality or policy differences. In March 1867, Bingham and Butler were trading charges about an unrelated matter when Butler said that the “only victim of the gentleman’s prowess that I know of was an innocent woman hung upon the scaffold . . . tried by a military commission and convicted without sufficient evidence.”126 Bingham was incensed and asked how Butler could claim, “with the assurance of Sir Oracle, that an innocent woman was

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Congressman Benjamin Butler, Bingham’s most caustic critic. Library of Congress.

on that trial convicted without sufficient evidence. . . . What does the gentleman know of the evidence in the case, and what does he care for evidence when he thus assails the official conduct of the men who constituted the court?”127 A few days later, Butler charged that Bingham withheld from the commission the diary of John Wilkes Booth, which was written after the assassination and taken from his body.128 Even more sensational was the revelation that the diary had “eighteen pages cut out.  .  .  .  Now, what I want to know is this: was that diary whole when it came into the hands of the Government?”129 “I believe,” Butler stated, “that piece of evidence would have shown . . . that up to a certain hour Booth contemplated capture and abduction, and that

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he afterward changed his purpose to assassination.”130 He concluded that Mary Surratt “may or may not have known of that change of purpose. . . . And if Mrs. Surratt did not know of this change of purpose there is no evidence that she knew in any way of the assassination, and ought not, in my judgment, to have been convicted of taking part in it.”131 By now the House was caught up in this duel, and Bingham did not disappoint as he cross-examined Butler: MR. BINGHAM: I desire, if the gentleman has the book to which he refers, he will have goodness enough to send it to me? MR. BUTLER: Is this the book you desire? MR. BINGHAM: No, sir; I mean the diary of Booth—not a report of the trial. MR. BUTLER: The diary? Oh no, sir. They do not let me see it. MR. BINGHAM: Oh yes, sir; that is another exhibition of manliness. MR. BUTLER: I have not it, sir. MR. BINGHAM: If the gentleman has not got it, he ought not to have said anything about it. Why talk of written evidence and not be able to produce it? MR. BUTLER: But then I know who has. MR. BINGHAM: Well, I do not; that is the difference.132

After this exchange, Bingham made two points in response to Butler’s accusation. The first was that he never saw Booth’s diary.133 The other was that the diary would have been inadmissible anyway because “the words and declarations of an accused felon, made after the fact,” were not valid proof.134 He added: “I treat with contempt and scorn any intimation from any quarter that I or my associate counsel were under obligations to admit any such evidence. The law does not require it; the common law of centuries, the gathered wisdom of a thousand years excludes it.”135 Bingham concluded that Butler’s charges “are only fit to come from a man who lives in a bottle and is fed with a spoon.”136 It is not clear if Bingham was telling the truth when he said he never saw Booth’s diary. Secretary Stanton and Judge Advocate General Holt did review the diary, but they may not have shared that information.137

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What is true is that a diary written by a fugitive was not admissible and could not be trusted, as Booth could have been lying to screen his accomplices.138 Granted, the tribunal could have admitted the diary if the prosecution had produced it, but the argument that this would have changed the verdict or the sentences issued is without merit. Nevertheless, Bingham continued to hear from critics about the case. At a campaign appearance in 1868, he was heckled by a man who asked, “How about Mrs. Surratt?”139 Instead of ignoring the jibe, Bingham yelled back: “How about her? Go and consult the records of the court that tried and convicted her . . . and, if you are still unsatisfied go and ask that apostate President, Andrew Johnson, why he refused a pardon after a petition had been sent him . . . drawn up in the handwriting of the man you seek to insult.”140

Postscript: The Trial of John Surratt Two years after the military commission was dissolved, John Surratt was brought to trial for his part in the conspiracy. He was given a jury trial because the state of emergency in force when his mother was accused was over.141 Bingham was back in Congress by then, but he gave the prosecutors pro bono assistance. A reporter saw him at his boardinghouse in Washington, and “finding the tables and chairs covered and heaped with criminal law books, I asked him if he was not helping the prosecution of Surratt. He replied that he was doing so in a quiet way to vindicate himself from Butler’s assault and the accusation of having hung ‘an innocent woman.’”142 After a two-month trial, though, the jury could not reach a verdict and Surratt went free.143 He lived until 1916, long after the defendants tried by the military tribunal had died.144 As Bingham was fond of pointing out, the right to a jury trial was a bulwark of liberty.145 While Bingham was not responsible for the design of the military commission that tried the alleged conspirators to Lincoln’s assassination, he did put his skills at the disposal of a flawed process. On the other hand, when Bingham returned to Congress, he did more than anyone else to ensure that all criminal defendants would get the protection of the Bill of Rights that one woman and seven men did not get from the United States.

7 the fourteenth amendment Congressman Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment. Justice Hugo L. Black, 1947

John Bingham’s great contribution to constitutional democracy was Section One of the Fourteenth Amendment, which committed the nation to fair and equal treatment for all.1 As a member of the Joint Committee on Reconstruction in Congress, he wrote the key language of Section One and led the fight for its ratification in the House.2 With respect to the meaning of this new text, Bingham expanded on the ideas that he laid out in the 1850s by arguing for the application of the entire Bill of Rights to all of the states, which was a conceptual leap from the vision of the Founding Fathers.3 While the views of one man do not control the interpretation of the Fourteenth Amendment, there is much to learn from Bingham’s speeches in and out of Congress in 1866 about the privileges or immunities of citizenship, due process of law, and the equal protection of the laws.4

Nation-Building in the South The problems confronting the federal government following Lee’s surrender to Grant were daunting. Some of these issues were closely connected to the war itself. For example, what would happen to the debt racked up by the Confederacy? Would the defeated states contribute to the payment of the Union’s debts? And what would be done with the rebel leaders? Other questions focused on the implementation of emancipation. Should former slave owners be paid for the loss of their property? How should national citizenship be defined? Would African 108

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American men receive the right to vote? And what financial or institutional assistance should be given to the freed slaves to make up for what Lincoln called “the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil”?5 The most important question involved the conditions to be imposed on the seceded states as the price of readmission. President Johnson and Congress agreed that the Confederate States could not just say “never mind” and return to the Union as they were before the war began. They vehemently disagreed, though, on what they should be required to do as penance for treason. The president’s view was that the South must only (1) ratify the Thirteenth Amendment, (2) swear its loyalty to the United States, and (3) repudiate the Confederate debt.6 While Johnson had opposed secession as a senator and supported the war, he was a former slave owner who believed in white supremacy and wanted a quick restoration of the Union.7 Most Republicans, by contrast, felt that the South should be compelled to do more to protect the freed slaves. George Atzerodt’s failure to carry out Booth’s order to murder Johnson put the nation on a collision course between the president and Congress.8 Back in Cadiz, Bingham ventured into these deep waters for the first time in a speech delivered in September 1865.9 He began by dismissing the claim that the former Confederate States possessed all the rights of loyal states, because this would “rob the victorious government of the United States of the right which, by the American laws of war and the general judgment of mankind, belongs, to every victorious nationality, to dictate terms to the conquered.” For example, he did not believe that they had “the right to send to the incoming congress representatives and senators,” especially since many of those leaders would be well-known traitors. Moreover, he noted that if these states were given the unrestricted right to vote on constitutional amendments, then the Thirteenth Amendment could not receive the approval of the three-quarters of the state legislatures necessary for ratification.10 Bingham held that the South should not be “restored except upon conditions of security for the future, if not also indemnity for the past.”11 Chief among those guarantees was that every “natural born citizen of the United States” was “entitled to all the privileges and immunities of citizens.”12

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President Andrew Johnson, the leader of the opposition to the Fourteenth Amendment. Photograph by Jesse Harrison Whitehurst. Library of Congress.

The Second Constitutional Convention In December, Bingham returned to Washington for the most important Congress since the first one in 1789. The session began in dramatic fashion, as the clerk of the House, under the watchful eye of Thaddeus Stevens, refused to recognize the representatives elected by the former Confederate States.13 This act of principle was also an exercise in political hardball, as it ensured that the Republicans would maintain a powerful majority in the House, which might be necessary to overcome presidential vetoes of legislation or to pass a constitutional amendment. Bingham promptly introduced his own amendment, which would “empower Congress to pass all necessary and proper laws to secure to all persons in every State of the Union equal protection in their rights,

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life, liberty, and property.”14 His freelance effort, though, was soon trumped by a creative institutional arrangement. Congress created the Joint Committee on Reconstruction, made up of nine representatives and six senators, to examine the issues in depth and propose action.15 While the membership and debates at the 1787 Constitutional Convention are well known, the Joint Committee that produced the Fourteenth Amendment is not. In large part, this is because the notes about its secret deliberations are far less revealing than the ones that James Madison took in Philadelphia.16 All that we have are minutes of the committee’s meetings recording (without explanation) the text that was considered and the votes that were taken. Nevertheless, the twelve Republicans who served in this constitutional conclave deserve recognition.17 Senator William Pitt Fessenden of Maine chaired the Joint Committee and was joined by James Grimes (Iowa), Ira Harris (New York), Jacob Howard (Michigan), and George Williams (Oregon).18 Thaddeus Stevens led the House slate with Roscoe Conkling (New York), George Boutwell (Michigan), Elihu Washburne (Illinois), Justin Morrill (Vermont), Henry T. Blow (Missouri), and Bingham.19 Though he was formally a new member of Congress, Bingham’s formidable reputation from his previous stint in the Capitol, his fame from the Lincoln trial, and the fact that Ohio was a large state entitled to at least one slot all but ensured his selection.20 Bingham’s presence on the floor was minimal as the Joint Committee deliberated, and he did not make his first major address until January 1866.21 He emerged to respond to Democratic complaints about the exclusion of southern representatives and rejected their argument that “Once a State, always a State, with all the rights of a State, with the right of full and equal representation, with the right of local legislation.”22 He reminded them that their party took the view that “you could not coerce seceding States by arms, and today the gentleman declares you cannot coerce seceding states by laws.”23 “The Republic,” Bingham declared, “is in the hands of its friends, and its only safety is in the hands of its friends.”24 “The Party of the Republic proposes only to take security for the future,” and that security involved repudiating the “horrid blasphemy . . . that this is a Government of white men” and ensuring “equal and exact justice to all men.”25 “That has not been done. It has failed to be done in the past. It has failed in respect of white men as well as black men.”26

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Bingham then offered his solution to this deficit of freedom: a constitutional amendment that would give Congress and the federal courts the authority to enforce fundamental rights. His diagnosis was that “many of the States—I might say, in some sense, all of the States of the Union—have flagrantly violated the absolute guarantees of the Constitution of the United States to all its citizens.”27 “[G]o read, if you please, the words of the Constitution itself: ‘The citizens of each State (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis ‘of the United States’) in the several States.’”28 He continued: I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on Congress the power to pass all laws necessary and proper to secure to all persons— which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question, and assert those rights by solemn judgment, inflicting upon the offenders such penalties as will compel a decent respect for this guarantee to all the citizens of every State.29

Bingham concluded by stressing “that every loyal citizen of the Republic has come to know that the divine feature of your Constitution is the recognition of the absolute equality before the law of all persons, whether citizens or strangers.”30 None of this was different from what he had said before the Civil War, but now he was calling for a new constitutional amendment rather than for a different interpretation. Bingham also did not break new ground on what he meant by “personal rights,” but that would soon change.31 The next major development came at the end of January when the Joint Committee put forward a compromise about voting rights.32 Rather than requiring African American male suffrage outright, its proposal held that if a state refused to enfranchise any men above a certain age, then its delegation in the House and the Electoral College would be

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reduced.33 This concept, with some tweaks, would eventually become Section Two of the Fourteenth Amendment and was defended by Bingham on January 25.34 When asked if all African American men should have the right to vote, he said for the first time: “I will answer with all of my heart that I am ready to go for that. But a majority of those with whom I am associated think that this is all that is needed at present.”35 He added, “The reason why I support the proposed amendment is that I believe it essential and attainable. I do not dare to say that it could not be improved.”36 Bingham also made some new points about his pet proposal, which was still under consideration by the Joint Committee. He repeated that Congress needed the power “to enforce in behalf of every citizen of every State and of every Territory in the Union the rights which were guarantied to him from the beginning, but which guarantee has unhappily been disregarded by more than one State of this Union, defiantly disregarded, simply because of a want of power in Congress to enforce that guarantee.”37 Although the “Constitution declares that no person shall be deprived of life without due process of law; yet, in support of what I have just said on the necessity of an additional grant of power, allow me to remind the House of the fact that this highest right which pertains to man or citizen, life, has never yet been protected, in any State of the Union by the statute law of the United States.”38 “I agree,” he said, that “if the late rebel States would make no denial of right to the emancipated citizens no amendment would be needed. But they will make denial.”39 The South will “avoid any [military] conflict again. But unless you put them in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they may defy your restricted legislative power when reconstructed.”40 In the midst of these momentous discussions, Bingham was once again eyeing a Senate seat. John Sherman was seeking reelection, but he faced spirited opposition from Congressman Robert Schenck, who was supported by Republicans who felt that Sherman was too conservative.41 Now that the door was open, Bingham’s name was bandied about as a possible compromise candidate, and some newspapers in his district endorsed him.42 He did not leave Washington to rally support, though, and when the new legislature met, Sherman was reelected with fortynine votes, as compared with twenty-eight for Schenck and eleven for

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Bingham.43 This was Bingham’s last serious chance at winning statewide office. His inability to ever become governor or senator was partly due to his strong anti-slavery profile, which did not play well in the more conservative parts of Ohio. Another factor was that his political base in Cadiz was sparsely populated, which did not put him in a strong position to contest the entire state.

The First Draft of Section One In February, the Joint Committee offered its next constitutional initiative, which was similar to the language that Bingham had introduced in December. The proposed amendment said: “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; and to all persons in the several States equal protection in the rights of life, liberty, and property.”44 Bingham presented this language to the House in a short statement on February 13 and stressed that the “amendment proposed stands in the very words of the Constitution of the United States as it came to us from the hands of its illustrious framers. Every word of the proposed amendment is today in the Constitution of our country, save the words conferring the express grant of power upon the Congress of the United States.”45 “Nothing can be plainer to thoughtful men,” he said, “than that if the grant of power had been originally conferred upon the Congress of the nation, and legislation had been upon your statute-books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility.” Moreover, “I ask the attention of the House to the further consideration that the proposed amendment does not impose upon any State of the Union, or any citizen of any State of the Union, any obligation which is not now enjoined upon them by the very letter of the Constitution.” Finally, Bingham said that these “great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.”46 This was the first time that Bingham used the magic phrase “bill of rights” in describing what the Fourteenth Amendment was supposed to accomplish or what he meant by the privileges and immunities of

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citizens. His use of that term was innovative, for at this time most people did not refer to the first set of constitutional amendments as the Bill of Rights.47 (Indeed, the Supreme Court had never described them in this way.) Bingham’s treatment of these guarantees as a whole greater than the sum of its parts would, in time, become conventional wisdom and greatly expand the scope of individual freedom. There was some bait and switch at work in Bingham’s February speech, for he was saying that the proposed amendment changed nothing except the power of Congress to enforce constitutional rights, but in practice he was advocating a sweeping revision of federalism. The glue that held this argument together was his claim that the states had always been ethically or morally obligated to enforce the Bill of Rights and other national privileges and immunities equally, even though they had not done so.48 This was a clever tactic, as Bingham was trying to make Section One more palatable by downplaying its breadth.49 Unfortunately, some members of Congress and subsequent observers did not understand what he meant, especially since there was more than one way of construing the “privileges and immunities of citizens.”50 Two weeks later, Bingham gave the most important speech of his career, which was reproduced as a pamphlet called One Country, One Constitution, and One People: Speech of Hon. John A. Bingham of Ohio, in the House of Representatives, February 28, 1866, In Support of the Proposed Amendment to Enforce the Bill of Rights.51 The urgency of passing a constitutional amendment was brought home by President Johnson’s veto of the Freedmen’s Bureau Act in February.52 This law was intended to enhance the power of an agency created at the end to the war to give economic assistance to freed slaves.53 The president objected to the substance of the act, stating that “the support of indigent persons in the United States was never contemplated by the authors of the Constitution, nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than another.”54 Johnson’s more disturbing claim, though, was that the act was invalid because it regulated southern states that were excluded from Congress.55 That posed a direct challenge to the legitimacy of the Thirty-Ninth Congress and made it plain that the rest of the Republican agenda would be dead on arrival. Congress failed to override Johnson’s veto, which left Reconstruction in limbo.56

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While Bingham focused on the content of the proposed constitutional amendment, he recognized that the question of why Congress was empowered to do anything in this area was critical. He waved off the president’s attack by explaining that the Articles of Confederation, which was the Constitution prior to 1787, stated that all thirteen states had to agree to an amendment.57 The Constitution proposed in 1787 provided, however, that the assent of only nine states was required to make it law.58 Bingham said that this break with legality was justified by “the right of the people to self-preservation . . . it rests upon the transcendent right of nature, and nature’s God. That right is still in the people and has justified their action through all this trial. It is the inherent right of the people.”59 He then pointed out that if Johnson was right “that you cannot amend the Constitution without the assent of Representatives in Congress of the rebel States, you could not have passed any bill during all of these four years of war, if it affected in any sense the interests of the eleven rebel States.”60 On the impact of the proposed amendment, Bingham began by repeating his reassuring argument that the Joint Committee was not trying “to take away from any States any right that belongs to it, or from any citizen of any State any right that belongs to him under that Constitution.”61 “The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It ‘hath that extent—no more.’”62 Bingham then claimed that “[g]entlemen admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States, and that no person shall be deprived of life, liberty, or property, without due process of law,” but that some were concerned that enforcing these rights would intrude unduly on states’ rights.63 That concern was unwarranted because no state ever had the right “to withhold from any citizen of the United States within its limits, under any pretext whatever, any of the privileges of a citizen of the United States.”64 There were some ambiguities in this part of Bingham’s speech, which constituted the core of his explanation of Section One. First, his claim that the states were obliged to apply the Bill of Rights was not the best

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reading of the Supreme Court’s ruling in Barron v. Baltimore.65 He discussed Barron later in his remarks and said it held that there was no “power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution.”66 Another take on Barron, though, was that the Court held that the Bill of Rights did not impose any obligations on states.67 Bingham was not unaware of this dispute, but the Joint Committee’s proposal sounded better when it was presented as creating a new power for Congress rather than creating new rights. Second, sometimes it sounded as if Bingham was saying that the Privileges and Immunities Clause of Article Four was part of the Bill of Rights. But he referred in the passage just quoted to “the articles of amendment to the Constitution,” so the better reading is that he was saying that the Bill of Rights was just one part of the privileges and immunities of citizens.68 (During the 1850s, for example, Bingham said that the right to travel was also a national privilege and immunity.) By tying the Bill of Rights to a part of the Constitution that did bind the states, Bingham was doing his best to convince people that the pending proposal was modest. Nevertheless, the refrain that Congress should be empowered to protect “the privileges and immunities of citizens of the several States” carried some heavy baggage. One problem was that Bingham continued to read this phrase from Article Four to mean “the privileges and immunities of citizens of the United States.” But this was not the only way to construe that text. The other view of the provision was that it barred a state from discriminating against citizens from other states with respect to rights guaranteed by state law.69 Bingham rejected this position, contending that Section One would not “transfer the laws of one State to another State at all. It is to secure to the citizen of each State all the privileges and immunities of citizens of the United States in the several States.”70 His proposal, though, did not include the phrase “of the United States.” That was a confusing omission, as one member explained in reply to Bingham that “[c]onstitutions should have their provisions so plain that it will be unnecessary for courts to give construction to them; they should be so plain that the common mind can understand them.”71 A more serious difficulty with Bingham’s choice of words was that the leading case on privileges and immunities, Corfield v. Coryell, defined

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that term in a different way.72 Corfield was a circuit court opinion (one level below the Supreme Court), but the decision was widely cited for the following passage: [W]hat are the privileges and immunities of citizens in the several states?  .  .  .  What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.73

Corfield’s catalog of rights was broader than the Bill of Rights or what Bingham had previously identified as national privileges or immunities. In fact, he never cited Corfield in the Thirty-Ninth Congress.74 Reasonable legal minds, however, could (and probably should) have concluded that adopting the Joint Committee’s language would let Congress legislate equality over all the topics named in Corfield, including bread-andbutter issues such as local property law.75 That was a bridge too far for many members. Bingham did his best to allay these concerns by stressing that the Joint Committee’s goal was to protect “[t]he loyal minority of white citizens or the loyal but disenfranchised colored majority” in the South.76 Inaction by Congress would say “to these rebel States, go on with your confiscation statutes, your statutes of banishment, your statutes of

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murder and death against men because of their loyalty to the Constitution and Government of the United States.”77 Ratifying the Fourteenth Amendment, by contrast, would give Congress the ability “to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow-men. Why should it not be so? Is the bill of rights to stand in our Constitution, hereafter, as in the past five years within eleven States, a mere dead letter?”78 The House was not persuaded. A substantial majority voted to postpone further discussion of the proposal, and the Joint Committee was forced to return to square one.79 The New York Times said that this was “the end of constitutional amendments from the Reconstruction Committee. It is doubtful if this ever comes before the House again, while those already passed are having a rough time in the Senate.”80

The Civil Rights Act of 1866 While the Joint Committee struggled to produce satisfactory constitutional language, the House took up a bill that would ban racial discrimination and secure basic rights.81 This version of the Civil Rights Act of 1866 said that there “shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery or involuntary servitude.”82 The act also listed some of these civil rights, such as the right “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.”83 When the Civil Rights Act came before the House in March, Bingham spoke out against the legislation.84 Some of his criticisms were specific and could be addressed by revising the bill. For example, he was unhappy with the use of criminal penalties instead of civil damage suits to enforce the law.85 The pending draft used the word “citizen” instead of “inhabitant,” which he felt would leave aliens outside of its protection.86 Bingham also said the right to vote was a civil right, since “the term civil rights includes every right that pertains to the citizen under the Constitution, laws, and Government of this country,” and therefore

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Congress would be exercising a power over suffrage that was unprecedented.87 Finally, he explained that the Freedmen’s Bureau bill, which contained a catalog of rights similar to the Civil Rights Act, applied to unreconstructed states and expressly disclaimed the power to do the same in loyal states as this bill would.88 Bingham’s broader argument was that, while he agreed with the goals of the Civil Rights Act, he did not agree that Congress had the power to regulate the states in this way without a constitutional amendment. “I beg gentlemen to consider that I do not oppose any legislation which is authorized by the Constitution of my country to enforce in its letter and spirit the bill of rights as embodied in that Constitution. I know that the enforcement of the bill of rights is the want of the Republic.”89 Unfortunately, “[t]he Constitution does not delegate to the United States the power to punish offenses against the life, liberty, or property of the citizen in the States.”90 He did not say much about why he thought this was so, choosing to rely on the fact that “[t]here was never a law upon the United States statute book to punish the murderer for taking away in time of peace the life of the noblest, and the most unoffending as well, of your citizens, within the limits of any State of the Union.”91 “The law in every State should be just; it should be a respecter of persons,” he concluded, and “I should remedy that not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future.”92 In response to these criticisms, the House amended the bill to remove the provision about prohibiting discrimination and extended civil rights protection to all inhabitants, but Bingham still voted no.93 This was one of the few times that he took a constitutional stand that was more conservative than that of most of his Republican colleagues. The president, of course, vetoed the Civil Rights Act, saying that he was not convinced that the freed slaves “possess the requisite qualifications to entitle them to all of the privileges and immunities of citizens of the United States” and that “the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.”94 This time Congress managed to scrounge up enough votes to override the veto, though Bingham did not go along.95 Johnson’s hostility toward the Civil Rights Act reinforced the need for a constitutional amendment and for a platform to take to the voters in the upcoming midterm elections.

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The Final Version of Section One The Joint Committee resumed its work in April, and the minutes establish that Bingham was single-minded in arguing that Section One should contain language similar to what he had proposed earlier in the year.96 Initially, the committee explored a draft that said: “No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.”97 Bingham immediately moved an amendment adding that “nor shall any state deny to any person within its jurisdiction the equal protection of the laws, nor take private property without just compensation.”98 This change was rejected, but Bingham was unyielding and finally convinced his colleagues to adopt a new draft that stated: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.99

Bingham did not write the first sentence of Section One, which overruled Dred Scott by making all African Americans citizens, but the rest of the language was his.100 There were three distinctions between this draft and the prior one. This version referred specifically to the rights held by “citizens of the United States,” which supplied the phrase that was missing from Article Four—the ellipsis—that made Bingham’s first effort less than clear.101 Next, the new-and-improved Section One referred to “privileges or immunities,” not “privileges and immunities.” Why did this matter? One explanation is that the change was intended to show that the new language should not be construed in the light of cases such as Corfield that had interpreted the old language in Article Four.102 Consistent with this argument, from this point on Bingham did not use Article Four to explain his theory of the Bill of Rights. Lastly, the new text imposed new obligations on the states by saying “no state shall,” which went beyond

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just giving Congress the power to enforce the Fourteenth Amendment if it chose to do so. In 1871, Bingham reflected on his thinking during a speech to the House about the Ku Klux Klan Act, which was enacted to enforce the guarantees of Section One. He stated that the Rosetta stone for deciphering the Fourteenth Amendment’s wording was in Barron v. Baltimore: In reexamining that case of Barron, Mr. Speaker, after my struggle in the House of February 1866,  .  .  .  I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendment to the Constitution of the United States, the Chief Justice said: “Had the framers of those amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.” Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said “no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;” imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution. [T]he privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.103

Bingham then read the first eight amendments in their entirety and ended by saying that “[t]hese eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.”104 This was the clearest statement of Bingham’s intent, but he also muddied the waters somewhat by pretending that his view of the privileges and immunities of citizens had never changed. During another discussion of Section One in 1871 with Congressman James Garfield, the future president, Bingham explained that the Privileges or Immunities Clause was different from the old Privileges and Immunities Clause, since the latter “text reads that the citizens of each State shall be entitled

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to the privileges and immunities of citizens of the several States; which were always interpreted . . . to mean only privileges and immunities of citizens of the States, not of the United States.”105 But he knew that Article Four was not “always interpreted” to exclude national privileges and immunities, because he was a leading voice for years arguing that the original provision should not be read that way. Like any good lawyer, Bingham was able to adapt his arguments to meet the situation, and in this case he was adopting the arguments of his critics in 1866. Bingham’s last speech on the Fourteenth Amendment before the House voted to ratify the proposal was anticlimactic. He spent much of his time defending Section Three, which barred Confederate leaders from serving in the U.S. government unless two-thirds of Congress approved, and Section Four, which repudiated Confederate debt and stated that Union debt would be repaid.106 With respect to Section One, he said that its necessity “is one of the lessons that have been taught to your committee and taught to all the people of this country by the history of the past four years of terrible conflict.”107 Its intended purpose was “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.”108 Bingham also stressed that the “amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States.”109 The House and the Senate passed the amendment by the necessary supermajorities and sent it out to the states for ratification. President Johnson issued a statement saying that he doubted “whether any amendment to the Constitution ought to be proposed by Congress and pressed upon the Legislatures of the several States for final decision until after the admission of such loyal Senators and Representatives of the now unrepresented States.”110 Now that the Fourteenth Amendment was written, the House began considering an even more difficult question. When Bingham was asked in February if ratification of the new amendment was “a condition precedent to admitting the Representatives of any of the eleven States that are not now represented in Congress,” he evaded the question.111 The Joint Committee proposed in May that ratification be deemed a necessary condition for readmission but would not say that this was the only

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one.112 Bingham’s position was that the acceptance of the Fourteenth Amendment by an excluded state was enough, but Thaddeus Stevens did not agree.113 What the Republican caucus could agree on was that Tennessee, which in July became the first ex-Confederate state to ratify the Fourteenth Amendment, should be readmitted immediately.114 The symbolic importance of bringing back the home state of the president was high. Moreover, Johnson would find it awkward to block his own state from having representatives in Congress. Bingham spoke in favor of admission and rejected the argument of his more idealistic colleagues that Tennessee should be excluded until it gave African American men full voting rights.115 “Justice for all is not to be secured in a day,” he said, “and he is the wisest statesman and the most faithful to duty who will seize the opportunity this day presented to restore a State to its proper place in the Union; and thereby add one additional vote of a free people in aid of the final ratification of that amendment to the Constitution.”116 Without the Fourteenth Amendment’s ratification, how would Congress “throw the shield of the law of the land over these unfortunate human beings, lately slaves, now emancipated citizens, who with their ancestors have through many generations and many centuries been the victims of cruelty, outrage, oppression, and wrong?”117 The House agreed, and Johnson reluctantly signed the bill, though he successfully vetoed an attempt to admit Nebraska and Colorado and thereby create more Republican votes in Congress.118

The 1866 Congressional Election The fall campaign was a national referendum on the Fourteenth Amendment and the ongoing exclusion of ten states from Congress. President Johnson took charge of the Democratic opposition, and in August the National Union Convention gathered in Philadelphia with northern and southern delegates claiming that they were the true representatives of the American people.119 The president then made the unprecedented decision to campaign personally for Democratic congressional candidates in what was called the “swing around the circle.”120 Prior to 1866, most voters thought that it was undignified for a president to campaign; surrogates did all the work.121 Johnson’s break with that tradition was a signal to the country that the stakes in this election were high.

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Bingham accepted nomination for another term in the House and gave a spirited defense of the Fourteenth Amendment on the campaign trail. In his most comprehensive speech, he called the National Union a “do-nothing Convention, except to give aid and encouragement to treason—to help the fallen fortunes of the chiefs of the rebellion.”122 President Johnson was trying to distract the voters from “the great issue upon which the American people are about to decide in the coming election,” which was whether they “shall be permitted to take security for the future by amending the Constitution of their Government.” “What is this amendment? Andrew Johnson does not discuss it in his speech of Saturday. The Philadelphia Convention does not discuss it, so as to enable the people to comprehend it.” With that overture, Bingham proceeded to give his most complete explanation of what Section One was meant to achieve: The amendment consists of five sections, the first of which provides that persons born in the United States, and not owing allegiance to a foreign Power, and all persons of foreign birth duly naturalized within the United States are declared to be citizens of the United States. It provides, further, that 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 deny to any person within its jurisdiction the equal protection of the law. [Cries of “That’s right.”] Yes, it is right. It is the spirit of Christianity embodied in your legislation. It is a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of the Union by the combined power of all the people of every State. It takes from no State any right which hitherto pertained to the several States of the Union, but it imposes a limitation upon the States to correct their abuses of power, which hitherto did not exist within the letter of your Constitution, and which is essential to the nation’s life. Look at that simple proposition. No state shall deny to any person, no matter whence he comes, or how poor, how weak, how simple—no matter how friendless—no State shall deny to any person within its jurisdiction the equal protection of the laws. If there be any man here who objects to a proposition so just as that, I would like him to rise in his place and let his neighbors look at him and see what manner of man he is [A voice—“He isn’t here, I guess.”] That proposition, I think, my

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fellow-citizens, needs no argument. No man can look his fellow-man in the face, surrounded by this clear light of heaven in which we live, and dare to utter the proposition that of right any State in the Union should deny to any human being who behaves himself well the equal protection of the laws. I hazard nothing, I think, in saying to the American people that the adoption of that amendment by the people, and its enforcement by the laws of the nation is, in the future, as essential to the life of the people of the nation. Hereafter the American people can not have peace, if, as in the past, States are permitted to take away the freedom of speech, and to condemn men, as felons, to the penitentiary for teaching their fellow men that there is a hereafter, and a reward for those who learn to do well.123

To dispel any impression that Bingham talked about nothing but high principle, he devoted another section of the address to his efforts to increase the wool tariff to help sheepherders in his district.124 During the campaign, Bingham made a few other quotable statements about the Fourteenth Amendment. In one appearance he stated that Section One was the legal equivalent of the Golden Rule, asking: “Is it objected to by any Christian man, to embody in your Constitution at least the simple golden rule you learned at your mother’s knee: ‘Whatsoever ye would that others should do unto you, do ye even so unto them’?”125 Bingham added that “[f]reedom of conscience is one of the privileges of citizens of the United States, and men are not to be put to torture, sent to the dungeon, walk the narrow steps of the scaffold, for teaching their children the holy principles of our Lord and Master.”126 He told voters that if “you rally in the fall . . . every State South will rally to the lead of Tennessee, and ratify the Amendment. Is not that worth striving for?”127 The choice was clear: “There were but two parties now, as during the war, the friends of the Republic, of the constitution, of liberty, of equal rights, and the friends of that despotism, conspiracy and treason, which has sought to disrupt and ruin the country. The question was simply whether loyal men or traitors should rule the country.”128 The result was a landslide for Republicans, which the Nation called “the most decisive and emphatic victory ever seen in American politics.”129 Bingham himself was reelected with 53 percent of the vote, and his party won more than a two-thirds majority in Congress.130 Much is

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made of President Johnson’s intemperate behavior on the stump as the cause of his catastrophic loss—in one appearance he compared himself to Jesus—but the real cause was that he misread the public’s mood about racial equality.131 How would the president respond to this verdict? At one stop it was reported that Bingham yelled that if he kept opposing Congress, then the House would impeach “Drunken Andy Johnson.”132 He denied saying this, but that was where things were heading.

Some Final Thoughts Bingham would have much more to say about the Fourteenth Amendment, but some conclusions can be drawn now about his design of Section One. First, he wanted the Bill of Rights, which he defined as the first eight constitutional amendments, to apply to the states.133 Second, Bingham believed that all of those protections applied only to citizens, and that aliens were entitled to the lesser (though not unimportant) security provided by the Due Process and Equal Protection Clauses, which included some fundamental rights such as the freedom of speech. Third, he understood the “privileges or immunities of citizens of the United States” principally through what was listed in the Bill of Rights, but he did not rule out the idea that unwritten rights were included.134 The judicial doctrine developed by the Supreme Court over the last 150 years shows, at best, limited fidelity to this architecture. While Bingham’s perseverance in the process that produced the Fourteenth Amendment was admirable, the greatest test of his leadership was about to begin. Proposing new constitutional language was one thing, but getting that text ratified in the face of an unyielding president, a skeptical Supreme Court, and ten hostile states would set precedents that transformed the Republic.

8 reconstruction and impeachment [E]very theory of restoration or reconstruction which has been promulgated is more or less illogical in one or another of its parts. . . . The war was not carried on in deference to logical rules, or in rigid obedience to theories of Government or rules of Constitutional interpretation. The logic of events overruled the logic of lawyers and schoolmen; the policy of the National Government grew naturally out of the necessities of its position; the Constitution, contemplated in its new aspect as an instrument dedicated to freedom and national unity rather than to Slavery and disunion, received a rendering adapted to the spirit and exigencies of the time. New York Times, 1867

John Bingham’s influence reached its zenith in 1867 as Congress grappled with how to win the hearts and minds of the former Confederate States. At one extreme was President Johnson, who would not accept the Fourteenth Amendment and used all of the power at his disposal to block its ratification.1 Thaddeus Stevens was in the other corner, arguing that only reforms that went far beyond the Fourteenth Amendment, including redistributing wealth to the freed slaves, would lead to equality.2 Bingham steered the nation on a middle course based on the judgment that public opinion—North and South—would not stand for a lengthy period of military rule and on the hope that equal legal rights would be enough to produce a just society. The fight over Reconstruction reached its climax in an impeachment trial where Bingham gave the closing summation and demanded that the Senate remove President Johnson from office.3 Though this plea was rejected, the Senate trial paved the way for the adoption of the constitutional principles that Bingham thought were essential to lift the curse of racism from America. 128

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Constitutional Chess When House Republicans reconvened in December for the final session of the Thirty-Ninth Congress, they confronted a new set of political obstacles. Some of the ten states that were still excluded from the Capitol had rejected the Fourteenth Amendment, and the others would soon follow.4 This created a math problem for Bingham and his colleagues. The approval of three-quarters of the states is required to ratify an amendment to the Constitution. At this time, the Union had thirtysix states if the ex-Confederate ones were counted, which meant that twenty-seven “yea” votes were needed for ratification.5 As a result, if the ten renegades held fast, the amendment would not become law. What could be done to overcome this southern veto? Two simple answers were not politically viable. One was to create more states that would vote for the Fourteenth Amendment. President Johnson blocked this tactic in 1866 by vetoing legislation that admitted Nebraska and Colorado to the Union.6 The new Congress could override these vetoes, but the strategy of swamping the Capitol with new states was flawed. Unless many new ones were established, the amendment’s supporters would need to secure the approval of almost every loyal state to reach the magic number for ratification, which was not going to happen for many years. Another idea involved leaving the ten holdouts in political limbo until they ratified the Fourteenth Amendment. Nervous Republican politicians, however, did not know how long voters would accept this unprecedented situation. The 1866 election gave the party a mandate, but would that support be renewed in 1868 if the former Confederate States refused to back down? A more serious suggestion was that the ten renegades were not “states” for purposes of ratifying the Fourteenth Amendment. If that were true, then only three-fourths of the loyal states would be required for success. But there were many difficulties with this idea—some legal and some political. On the legal side, the ex-rebels were counted as states when the Thirteenth Amendment abolishing slavery was ratified, and therefore not counting them for the Fourteenth Amendment would be hard to justify. Congress had also never recognized the legality of secession, and in that sense these states never left the Union or forfeited their constitutional rights. Saying that the former Confederate States

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could be treated differently than the loyal states was one thing; saying that the South was now reduced to the equivalent of unorganized federal territories was another.7 On the political side, imposing the Fourteenth Amendment with only northern votes posed a legitimacy problem. The vanquished often do not accept the terms of the conqueror once the troops leave. At some point the occupation of the South would end, and without some support from local whites the amendment was bound to fail. Bingham was flexible on the issue of not counting the ex-Confederates as states.8 In 1862, he told the House that not “one of the eleven rebel States is today a State in the Union. . . . The territory is there, and there it will abide forever; the people are there, but there is no constitutional State.”9 Secession, he explained, “operates an absolute forfeiture of all their powers and rights as States.”10 In March 1867, Bingham was standing by this conclusion with respect to ratification, and declared that the Fourteenth Amendment was already part of the Constitution because three-fourths of the loyal states (plus Tennessee) had ratified the proposal.11 When it became clear that most of his colleagues disagreed, though, Bingham did not belabor the point. He accepted, albeit reluctantly, the need to get three-quarters of all the states on board to remove all doubt about the legality of the Fourteenth Amendment.12 A final option involved dissolving the governments in the dissenting states and putting them under martial law while they put together new legislatures to vote on the Fourteenth Amendment under rules set by Congress and the army. This would prevent the South from engaging in endless delay while preserving its right to say no after free elections were held.13 The question here was whether extended military rule over American citizens was lawful. In 1866, Bingham asked the House: “Do you call it a ‘republican government’ within the meaning of the Constitution to maintain a minority in power indefinitely in a State by Federal bayonets? I do not, nor does any other intelligent man.”14 This thought was amplified by the Supreme Court’s recent opinion in Ex Parte Milligan.15 Recall that Milligan rejected the theory of martial law that Bingham had put forward in the Lincoln conspiracy trial and held that military commissions could not try civilians where the courts were open. The decision limited its holding to loyal states, but the logic of the opinion could easily apply to disloyal states now that the war was over.16

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As if these hurdles were not high enough, there was also the presence of Andrew Johnson as the commander in chief of the force that controlled the South. Anything that Congress tried to do would have to be enforced by a president who refused to cooperate. By stalling consideration of the Fourteenth Amendment until 1869, the president could make Republicans face the voters again. There were two reasonable responses to this problem. One was that Congress could strip the president of some powers and give them to supporters of ratification. The other was to impeach and remove Johnson. In the latter scenario, the White House would go to Benjamin Wade, who in the Fortieth Congress was the president pro tempore of the Senate.17 Wade was Giddings’s former law partner and a strong supporter of the amendment who could be expected to work with Congress. The president faced headaches of his own. The Republican landslide left him in a tricky position because Congress might have enough votes to impeach and remove him if he played his cards poorly. Johnson’s more immediate concern, though, was that Edwin Stanton was still the secretary of war. Bingham’s old Democratic foe was now a strong supporter of Congress and had the loyalty of the generals in the field. Since Stanton was second in the chain of command, he could do a lot to interfere with the president’s effort to frustrate Bingham and his associates. Johnson could always fire Stanton and bring in a yes-man, but that would give Republicans an excuse to bring an impeachment. For now, a tense truce prevailed that kept Stanton in office.18

The First (Or Military) Reconstruction Act The initial attempt to untangle this web came at a meeting of the House Republicans in January 1867. In response to calls for immediate impeachment, Bingham argued behind closed doors for a cautious approach that would start with an investigation.19 This was a compromise that could unite the caucus, and a resolution requesting the House Judiciary Committee to explore the issue passed.20 After that, however, the debate within the party turned nasty and personal. The rupture in the Republican establishment began when Thaddeus Stevens introduced his plan for military reconstruction. Stevens was more than two decades older than Bingham and was renowned for his

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mastery of parliamentary maneuvers, biting rhetoric, and passion for racial equality.21 In his youth he represented escaped slaves as a lawyer. In death Stevens insisted on being buried in an integrated graveyard.22 He was the most polarizing politician of this era and was characterized as a Svengali who could bend the House to his will.23 The major exception to his influence was John Bingham, who often acted as if he were the leader of the House. Naturally, this competition bred some ill will between the two men, though they were able to work together most of the time. The first hint of discord came after Tennessee was readmitted in 1866 and Stevens proposed a bill providing that the ratification of the Fourteenth Amendment would not automatically lead to readmission for every ex-rebel state.24 When Bingham (who had just bested Stevens by getting Tennessee admitted) moved to gut the legislation, Stevens responded: “I think the gentleman has had his day.”25 This notso-friendly shot was just the beginning. The legislation that Stevens sought in 1867 held that the former Confederate States “have forfeited all of their rights under the Constitution.”26 These southern territories would be compelled to form new governments by electing delegates to a constitutional convention under rules established by federal officials whereby all loyal men—black and white—would be eligible to vote, but supporters of the rebellion (defined to include many southern whites) would not. After these conventions wrote new constitutions, the same interracial electorate would vote to ratify the proposal. Once that was done, the territory could petition for readmission, and Congress would decide whether to admit this “new” state. Nothing was said about the Fourteenth Amendment, as Stevens denied that there “is any understanding, expressed or implied, that upon the adoption of the amendment by any States, that such State may be admitted.”27 Bingham was recognized on January 16 and explained for over an hour why he was against the bill “contemplated by the honorable gentleman from Pennsylvania.”28 His first objection was that the proposal was inconsistent with the understanding of the voters in the recent midterm election.29 The admission of Tennessee and the ratification debate in Congress, Bingham said, gave “out the [Fourteenth] amendment to the people of the United States as the future basis of reconstruction.” “[T]he people of the United States so understood and accepted it. There

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Congressman Thaddeus Stevens, Bingham’s partner and rival in the House of Representatives. Library of Congress.

are gentlemen here,” he said, “who owe their reelection to the Fortieth Congress to the fact that the Union States conventions in the States which they represent upon this floor declared their acceptance of this constitutional amendment, in the manner and form as it now stands, as a condition for future restoration.” Bingham was also against the insinuation—drawing on the language of Dred Scott—that “traitors have no rights which we are entitled to respect.”30 The people of the South were citizens, not “alien enemies,” but the bill gave them “no protection of law at all; none whatever.”31 When asked what he would propose, Bingham did not commit himself but said that he wanted people in the disorganized states to have the right to sue in court if their rights were violated.32 “I am willing to exert all the essential powers of this Government,” he said, “in protection of life, liberty, and property in the

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insurgent states, to govern them, if need be, as they now are for years, [but] I will never, with my present conviction of duty, incorporate by law upon the statute-book of this Union a provision which knocks out the cornerstone of the fabric of American Government.”33 A more fundamental disagreement between Bingham and Stevens was about whether a statute was adequate to restore the Union. The lead author of Section One of the Fourteenth Amendment was wedded to his idea, stating: “I stand here today filled with the conviction, as strong as knowledge or that light which comes from heaven, that the future safety of this people depends in some sort upon the incorporation into their Constitution of that great amendment.”34 “Liberty,” Bingham explained, should not rest “upon repealable acts of Congress or parchment contracts entered into by Congress with insurgent and disorganized states.”35 What “is contemplated by the gentleman’s bill is to patch up a restoration by the usurpation of powers which do not belong to the Congress of the United States, induce the people to fling aside the constitutional amendment, and thereby subject the future of this Republic to all those dread calamities which have darkened its recent past.”36 “Instead of discouraging them as the gentleman from Pennsylvania proposes, let us stand upon the declaration of the joint committee that those disorganized States may ratify the amendment and that they ought to ratify it.”37 On the question of how Congress was going to get the Fourteenth Amendment ratified, Bingham stressed that he would crush any resistance from the other branches.38 “[N]either of these departments has any voice in the matter—no right to challenge the authority of the people.”39 “I have no concern or care,” he stated, “for any influence which the President may seek to exert. He is powerless with the people. He can in no way reverse their final judgment. But we are told that the Supreme Court of the United States will strike down this amendment.”40 Bingham dismissed this possibility because the ratification of a constitutional amendment “is a political question in the decision of which the Supreme Court can in nowise interfere.”41 If the House was “at all apprehensive of any wrongful intervention of the Supreme Court . . . [then] sweep away at once their appellate jurisdiction in all cases, and leave the tribunal without even color or appearance of authority for their wrongful intervention.”42 And if the Court would not uphold such a

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jurisdiction-stripping law, then Congress should “defy judicial usurpation by annihilating the usurpers in the abolition of the tribunal.”43 Bingham was now ready to unleash his final burst of words. What Stevens was proposing was not “a bill of reconstruction; it is a bill of destruction; instead of being a bill of restoration it is a bill of disunion and perpetual dismemberment; instead of a bill to restore the disorganized states as equal States of the Union it is a bill to convert them into vassal provinces.”44 “There is something grander in magnanimity and mercy,” he said, “than there is in stern, relentless, even-handed justice. A great people’s power shows likest God’s when mercy seasons justice.”45 “[T]his proposed act of general forgiveness and amnesty, securing to each, however guilty, the equal protection of the laws by the combined power of the nation, is a sublime humanity.” “Stand by that great amendment for equal rights and equal protection,” Bingham thundered. “There is strength in it; the strength that abides in an inviolable justice. There is peace in it; that peace which comes of laws which are just to all and oppressive to none.”46 There are several observations worth making about this address, which the New York Times described as “one of the most eloquent and effective speeches in the present Congress.”47 Bingham is often called a moderate, but the arguments that he made here show how hollow that description is. Anyone who is willing to wipe out the Supreme Court or most of its jurisdiction is not a moderate. He was also quite willing to employ unconventional means to get the Fourteenth Amendment ratified. What is true about the moderate tag is that Bingham was a traditionalist who believed, both for the Civil Rights Act and for military reconstruction, that lasting legal reform could be achieved only by a constitutional amendment. He did not accept the modern concept that the Supreme Court could uphold broad statutes with even broader opinions that changed the Constitution. The most important theme of Bingham’s January 16 speech was that the way to rebuild the South was with mercy rather than punishment.48 This was what divided him from Stevens, who held that “generosity and benevolence are the noblest qualities of our nature; but when you squander them upon vagabonds and thieves you do that which can command no respect from any quarter.”49 Finding the right balance between the fist and the outstretched hand is a crucial political

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skill, and history is littered with leaders who compromised too much or cracked down too hard to achieve their objectives. Civil wars, especially ones based on regional or racial divisions, present the most difficult problems in this regard. Bingham’s view was that the wisest solution for Reconstruction involved using force to help get the ex-rebel states to ratify the Fourteenth Amendment. But he did not want to require more, in order to avoid fueling southern white resentment or depleting public support in the North. His approach rested on assumptions that could not be tested, but in this sense Bingham was groping in the dark as best he could. For the next two months, the outcome of the battle between Stevens and Bingham swayed in the balance. Stevens was convinced that his colleague was not acting in good faith.50 When Bingham said that sending the Stevens bill back to the Joint Committee for further study would not kill the proposal, Stevens responded that he did not “take [Bingham’s] counsel, recognize his authority, or believe a word he says.”51 The House approved Bingham’s motion to recommit the legislation, but Stevens persuaded the Joint Committee (over Bingham’s loud objections) to recommend a similar bill.52 Under this version, habeas corpus would be suspended in the ten outlaw states, and they would be divided into five military districts, each under the command of a Union general.53 There was still no agreement, though, about what was required for readmission. On February 7, Bingham renewed his objections on the House floor and advised his friends to “make haste slowly.”54 He repeated his view that Stevens was wrong in claiming that the “ten insurrectionary States were a foreign and conquered territory.”55 The loyal citizens in the South “are no more liable to the rule of the conqueror after the armies of the rebellion have been disbanded than are the representatives of the people in this Hall.”56 To hold otherwise would violate the principle that “no law-abiding citizen of this Republic can be deprived of his personal and civil rights by way of punishment on account of the crimes of others.”57 Thus, he proposed a series of amendments to the Joint Committee’s bill, the most important of which was one that provided for habeas corpus in some cases.58 When Democratic critics asked how he could justify military rule in a state even with habeas corpus, Bingham replied: “I do not by this amendment say they are now States as they once were. I have said that they are States disorganized.”59 He continued to insist,

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however, that the ratification of the Fourteenth Amendment was the only condition of readmission to the Union.60 One week later, Bingham took the floor yet again to discuss the issue “sharply made between the honorable gentleman who has charge of the bill and myself.”61 After sarcastically thanking Stevens for “conquering his prejudices” and accepting his proposal on habeas corpus, Bingham proceeded to introduce another major change.62 If a renegade state provided suffrage “without distinction of race and color” in its new constitution and ratified the Fourteenth Amendment, then it would be readmitted to Congress.63 Including African American voting rights as a required condition would increase the prospects for ratification in those states and attract House Republicans inclined to support the Stevens bill, and Bingham further promised that all citizens in the South would be “protected by the military power of the United States in casting their votes.”64 He was, though, willing to allow most supporters of secession to participate in these elections, which was much more generous than what Stevens wanted.65 The old warhorse responded by pounding Bingham for his “unparliamentary and discourteous manner” that was pursued “with a doggedness which would have done great credit to Stonewall Jackson.”66 Stevens also declared that those who did not back an uncompromising stand against the South “are making for themselves no good record for posterity.”67 “The trouble with men like Bingham,” Stevens told a reporter, is that “they have no bone in their back and no blood in their veins.”68 Pressed by the looming adjournment of the Thirty-Ninth Congress, the First (or Military) Reconstruction Act was enacted over President Johnson’s veto on March 2, 1867.69 The act was a blend of Stevens’s and Bingham’s views, but on the critical point of what was required for readmission Bingham prevailed. Ratification of the Fourteenth Amendment would be the triggering event, though Stevens won an important concession that African Americans would have the right to vote on this issue under federal military protection. (When Tennessee was admitted in 1866, Bingham had opposed efforts to insist on African American suffrage as unrealistic.) Bingham also got his way on habeas corpus in the disorganized states, although this would soon be embarrassing when someone there filed suit claiming that the First Reconstruction Act was unconstitutional.70

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Congress took one other critical step to protect its authority by enacting the Tenure of Office Act over the president’s veto.71 Bingham and Stevens agreed that Johnson should not be allowed to subvert military reconstruction, and their solution was to restrict his constitutional authority. The Tenure of Office Act made it illegal for the president to fire a cabinet member without the Senate’s approval.72 This was designed to protect one member of the cabinet—Edwin Stanton. Although Bingham did not comment on the Tenure of Office Act at the time, he later said: “I believed then, and I believe now, that the act was constitutional. I believed then, and I believe now, that the public interests demanded the enactment of a law to restrain an Executive who seemed to be careless or indifferent to all the obligations of his great office.”73 Many lawyers did not agree with this conclusion because their understanding since George Washington’s day was that the president could unilaterally fire cabinet members, and it was Johnson’s attempt to rid himself of Stanton without Senate approval that would lead to his impeachment.74

The Second and Third Reconstruction Acts To build on the momentum established in the preceding months, Congress took the unprecedented step of calling itself into special session on March 4 to consider new legislation with the help of the Republicans elected in November.75 The ten ex-rebel states remained unrepresented, and when the Fortieth Congress convened, seven loyal states were also absent because their delegations could not make it to Washington in time.76 Nevertheless, the House proceeded to consider the Second Reconstruction Act, which explained how the disorganized states should be reorganized.77 The Second Reconstruction Act, which was also enacted over the president’s veto, nationalized the ratification process in the military districts of the South.78 Federal troops were ordered to register white and black voters and to organize elections for the state constitutional conventions that were contemplated by the First Reconstruction Act. Specific deadlines were provided by which these elections would be held. Voters were asked to decide if a convention should be held and to choose delegates. The convention would be held only if a majority said yes and if a majority of the electorate participated. A second election

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would then be held on the proposed constitution, and once again at least 50 percent of the electorate needed to vote for the result to count, with a majority of those votes necessary for ratification. This marked the first time that federal officials were given the authority to supervise state elections and stood in sharp contrast to the process in the loyal states that were considering the Fourteenth Amendment on their own with virtually all-white electorates.79 After passing the Second Reconstruction Act, Congress went into recess, and Bingham was finally able to return to Ohio. In April he declined a request from leading African Americans in Lynchburg, Virginia to give a speech there.80 With apologies that he could not visit, he wrote them that “all who by the Reconstruction Act of the Congress of the United States are permitted to vote in the coming elections . . . should in good faith declare for and adhere to the Constitutional Amendment known as article fourteen, and to that end demand that the same be ratified by the Legislature of Virginia.”81 His joy at being with his family was short-lived, though, as his two-year-old daughter Martha died in May of an unknown illness.82 Tragedy seemed to stalk Bingham when he was back in his home district, and there would be no more children for him and Amanda, though their three surviving girls were still close to home and unmarried. In July 1867, Congress returned for a summer session to take up the Third Reconstruction Act.83 President Johnson’s attorney general predictably gave the first two Reconstruction Acts a narrow reading that left as much power as possible in the hands of local whites.84 The president was determined to protect officials who were slow-walking the election process or manipulating the voter rolls from being fired by the generals in command of the military districts.85 Bingham spoke in favor of a bill that rejected the administration’s interpretation.86 The House, he said, was fighting for a world where “[i]t is not to be inquired, sir, when any man invokes the majesty of American law in defense of his rights, whether a European, an African, an Asiatic sun looked down upon him when it pleased God to put the first beam of light upon his understanding. Before that great law the only question to be asked of the creature claiming its protection is this: Is he a man?”87 President Johnson’s resistance to this ideal was in defiance of “the nation’s expressed will that this [Fourteenth] article of amendment shall be a condition of

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restoration.”88 “I admit,” Bingham said, “that none but the people resident in those States can reestablish a government, but they must establish it under the law of the nation and in accordance with the will of the nation.”89 The Third Reconstruction Act was enacted, and Congress fled the heat of Washington and went into recess until November.90

The 1867 Campaign in Ohio Bingham returned to Cadiz for an unusually significant off-year election. A state constitutional amendment was on the ballot that would allow all African American men to vote in Ohio.91 Meanwhile, Democrats were campaigning on a pledge to repeal the state’s ratification of the Fourteenth Amendment, which would set an ominous precedent for other states already in the yes column.92 Bingham threw himself into the fray with a no-holds-barred speech that attacked white supremacy directly. He began the campaign on August 24 by telling voters in his home county that “[t]he armed rebellion has been put down by the bayonet; and disarmed rebellion must be put down by the ballot.”93 Democrats, Bingham contended, did not want to debate the merits of the Fourteenth Amendment because “they cannot meet it and dare not try it.”94 He rejected their attack on the Ohio suffrage amendment, saying that “[t]hey undertake to alarm you with the plea that we are about to make the ‘nigger,’ to use their nomenclature, equal to a white man. . . . ‘Niggers equal to white men,’ and they wind up saying, ‘This is a white man’s Government.’ What blasphemy!”95 “Pray sir,” Bingham asked, “how white ought a man be before he has the right to live?”96 “You have the power,” he explained, “because of your superior numbers, to disenfranchise four millions of natural born citizens of the Republic. Suppose the state of things were reversed, and the black men had the power, would you have them deal thus with you and your children?”97 The truth was that every man “has a right to citizenship, no matter what his complexion, so long as he behaves himself well . . . and the man who denies it is merely a monster.”98 Bingham also observed that as “large a proportion of the [free] black population as of the free whites rushed to the defense of your flag” during the war, and “the black patriot is as much entitled to vote as Jeff Davis.”99 He closed on this powerful note:

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The people of the United States have to get rid of that bastard Democracy which would disenfranchise every seventh man on account of his complexion. There is not a man within the hearing of my voice but will admit, if the negro’s complexion was white, he should be allowed to vote. In God’s name, why should that make any difference, if he is known to have stood shoulder to shoulder with you in all the struggles that have made and saved this Republic?100

This passage expressed Bingham’s unfiltered thoughts more than usual, and he carried this egalitarian message across the state.101 The result was a disappointment. Republican Rutherford B. Hayes was elected governor by a wafer-thin margin, but Democrats took control of the legislature, and the suffrage amendment failed.102 Even Bingham’s own congressional district voted against giving the ballot to “the black patriot.”103 President Johnson said that he was “gratified, but not surprised at the result of the recent elections.”104 By contrast, Bingham construed the result as a rejection of Stevens’s more radical policies, telling another congressman that going beyond the Fourteenth Amendment was “political suicide” and that “it will require some care to see that [Stevens] does not commit a majority of our friends in the House to it.”105 All three of these mutual antagonists—Bingham, Johnson, and Stevens—now geared up for one final showdown.

Impeachment and Jurisdiction-Stripping When Congress returned from its summer recess, Republicans were confronted by two mortal threats to their authority. The first was that the president had found a way to sideline Secretary Stanton, at least temporarily. The Tenure of Office Act provided that a cabinet officer could be suspended while Congress was in recess.106 This was a tactical error by Congress, though a loophole may have been necessary to get the law passed, and shortly after the recess began in July, Johnson did suspend Stanton and started purging the generals who were the most enthusiastic about organizing new elections in the South.107 Ulysses S. Grant was now the acting war secretary, and he grudgingly carried out these orders on the president’s behalf. Consequently, none of the ten states under occupation ratified the Fourteenth Amendment. The other

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risk came from a habeas petition by William McCardle, a newspaper editor in Mississippi who was arrested by the military authorities for criticizing martial law.108 McCardle filed suit and argued to the Supreme Court that the Reconstruction Acts were unconstitutional. His challenge in Ex Parte McCardle was possible because Bingham had fought for habeas rights in the South, but a judgment against Congress would cripple the Fourteenth Amendment’s prospects.109 Republicans responded with the only arrows left in their quiver— the impeachment of the president and the removal of the Court’s jurisdiction to hear McCardle’s challenge. These answers followed logically from the political situation at the end of 1867, but Bingham and his colleagues took these extraordinary steps only after exploring other options and carefully weighing their implications. The setback in the fall elections convinced them that they could not afford another ballot in 1868 without the Fourteenth Amendment in place and greater African American voting rights in the South. This sense of urgency explains what was otherwise inexplicable—the decision to impeach Andrew Johnson in a presidential election year. When the House reconvened in November 1867, the Judiciary Committee recommended articles of impeachment against the president.110 Johnson proceeded to throw kerosene on the fire by saying in his Annual Message that “[o]f all the dangers which our nation has yet encountered, none are equal to those which must result from the success of the effort now making to Africanize . . . half of our country.”111 Yet the House voted to table impeachment, with Bingham joining the majority.112 His alternative was to strip the president of his authority to name the commanders of the five southern military districts and give that power to General Grant. This was in some ways a more extreme measure than impeachment, since it would have established Congress’s authority to take commander in chief powers away from a president.113 Bingham’s proposal passed the House but was soon superseded by other considerations.114 With respect to possible judicial intervention in McCardle, Bingham’s opening gambit was a bill that would require a two-thirds majority on the Supreme Court to find an act of Congress invalid.115 He pointed out that this was the same ratio that applied when the Court was created in 1789 with six justices, since four were needed for a majority.116 This

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legalistic point was combined with the incendiary claim that in Dred Scott the Court had lost its moral authority “when it mouthed from that high seat sacred to justice the horror blasphemy that there were human beings either in his land or in any land who had no rights which white men were bound to respect.”117 “The rights of the people of this country are to be respected,” Bingham continued, “and those whom they send to this Congress are clothed with the power to compel even the Supreme Court to respect those rights, and to that end, if need be, to reduce that court to a single person, if you please, and thereby compel unanimity.”118 This supermajority legislation also passed the House but could not get through the Senate.119 Thus, what passed for moderation at this stage was the rewriting of long-standing practices on executive and judicial power, which led one editorial to ask how long the country should be governed by “a reckless band of partisans ‘outside of the Constitution.’”120 Events on the ground soon created a new reality. In January 1868, Secretary Stanton’s suspension came to an end.121 The president asked Grant to remain in the War Department while a lawsuit was filed challenging the constitutionality of the Tenure of Office Act, but Grant declined.122 Stanton then began interfering with Johnson’s orders to the southern commanders, which drove the president over the edge. On February 21, he fired Stanton and named Adjutant General Lorenzo Thomas as the interim secretary of war.123 Stanton would not go quietly, though, and barricaded himself in his office with some Republican members of Congress.124 Johnson was not willing to eject Stanton from the War Department by force, and the result was that there were now two war secretaries vying for the army’s allegiance—a potentially explosive situation. Stanton’s dismissal reunited Bingham and Stevens. The old man was in failing health and now needed to be carried into the House chamber, but he was energized by this crisis and lobbied the party for impeachment, asking: “What good did our moderation do you? If you don’t kill the beast, it will kill you.”125 Bingham took the floor and said that until now he was “unwilling to utter one syllable to favor such a proposition or to record a vote to advance it.  .  .  .  I stand here, however, filled with a conviction as strong as knowledge that the President of the United States has deliberately, defiantly, and criminally violated

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the Constitution, his oath of office, and the laws of the country.”126 He said the president’s argument that firing Stanton was legal because the Tenure of Office Act was unconstitutional made no sense because Johnson had complied with the act in suspending Stanton and restoring him to office.127 As Bingham stated during the impeachment trial, if Johnson “did not think it obligatory upon him, why did he obey it in the first instance—why did he exercise power under it at all?”128 Bingham also denied that a president could refuse to follow an act of Congress when no court had held that it was unconstitutional.129 What was left unsaid was that Johnson was being impeached because he opposed the Fourteenth Amendment, although Bingham did allude to that issue when he said that the president was so bent “upon the destruction of the peace of this country, that he is capable of rushing to any extreme of madness whatever.”130 Impeachment passed the House easily, and Bingham was once again thrust into the role of a prosecutor in an unorthodox trial.131 The Speaker appointed Bingham and Stevens to inform the Senate of the House’s action, and on February 25 they arrived on the far side of the Capitol wearing black morning coats. Stevens leaned on a cane and on Bingham’s arm, but he announced in a strong voice that “[i]n the name of the House of Representatives and all the people of the United States, we do impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors.”132 A House committee including the two titans was named to draft the impeachment charges and look into the facts, but Bingham and Stevens were soon at each other’s throats.133 Another member remarked that “[b]oth are profane, but Stevens is especially so.”134 Most of the articles of impeachment approved by the House accused Johnson of violating the Tenure of Office Act, but Article Eleven indicted him for denying the legality of a Congress that excluded states and for violating the First Reconstruction Act, which was nearer to the truth.135 When the House selected its team of seven managers, which is the term used for members who present an impeachment case to the Senate, petty squabbling broke out immediately. Bingham received the most votes in the manager balloting, but the Speaker placed his name third on the list, behind Stevens and Benjamin Butler.136 Given his feud with Butler over the execution of Mary Surratt, Bingham was incensed

Bingham and Stevens presenting the articles of impeachment to the Senate. Sketch by Theodore Davis. Originally published in Harper’s Weekly. Library of Congress.

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at the notion that Butler would outrank him and erupted: “I’ll be damned if I serve under Butler. It is no use to argue, gentlemen, I won’t do it.”137 When the managers compromised by electing someone else as the chair, Bingham threatened to resign from the prosecution team unless he was named the chair.138 Since his backing was seen as essential for the success of the trial, the other managers capitulated to Bingham’s demand.139 On March 4, they entered the Senate, and Bingham read the charges in “a firm, measured voice[,] which penetrated to the remotest parts of the chamber.”140 The next day, Chief Justice Salmon P. Chase entered the chamber and took up his constitutional role as the presiding officer.141 This was the culmination of a most unlikely journey for three lawyers—Bingham, Chase, and Stanton—who had met twentyfive years before in Ohio and now held pivotal roles in this national political drama.142 As the House managers and the president’s attorneys prepared for trial, the Supreme Court heard oral argument in McCardle.143 An opinion declaring military reconstruction illegal would damage the impeachment case and give Johnson the high ground in his claim that Congress was abusing the Constitution. Accordingly, on March 12 legislation was passed (after the oral argument was over) repealing the habeas corpus statute that supported McCardle’s suit.144 The bill became law with Bingham’s support two weeks later.145 In the interim, the justices could have beaten Congress to the punch and made their decision, but a majority chose to do nothing and allow their jurisdiction to lapse.146 The justices were afraid (and with good reason) that they would be next on the chopping block if they resisted. One danger to the Fourteenth Amendment was over.

The Closing Argument and Final Ratification The impeachment trial began on March 30, with Butler opening the case for the prosecution.147 Over the next few weeks, the Senate heard from several witnesses concerning the president’s removal of Stanton and other matters. Bingham played almost no role in this part of the trial, limiting himself to arguing motions about the testimony or the Senate’s procedures, though he did enough to lead one reporter to comment that he “never looks well shaved.”148 In reality, the facts were

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The House impeachment managers. Thaddeus Stevens is seated with a cane, Benjamin Butler is seated at the far left, and Bingham is seated at the far right. National Archives.

irrelevant. For some senators, the trial was an inquiry into whether Johnson had violated the law and whether, if he had, that act was a high crime and misdemeanor under the Constitution. For others, the issue was purely political—should Johnson be removed for opposing the ratification of the Fourteenth Amendment? Anticipation was high when Bingham went to the podium on May 4, 1868, to deliver the closing argument in the impeachment trial.149 On the Senate floor, he spoke under the gaze of his jilted ally—Chief Justice Chase—in defense of their mutual friend Secretary Stanton, whom Bingham described as “a thorn in the heart of every traitor in the land” and “a man equal in the discharge of his office, in every quality that can adorn or ennoble or elevate human nature.”150 The Ku Klux Klan was also watching Bingham, as he was getting death threats from them in red ink decorated with skulls.151 With that as

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The impeachment trial of Andrew Johnson. Sketch by Theodore R. Davis. Originally published in Harper’s Weekly. Library of Congress.

a backdrop, he began by asking: “I pray, you, Senators, ‘hear for my cause.’”152 The centerpiece of Bingham’s presentation was that it was a high crime and misdemeanor for the president to disregard a law when no judicial opinion held that statute unconstitutional.153 While a president could review the Constitution in deciding whether to veto a bill, Bingham contended that he could not do that with respect to the execution of a law because that would be an exercise of judicial power.154 “The whole defense of the President,” he said, “rests upon the startling proposition that he cannot be held to answer for any violation of the written Constitution and laws of the United States, because of his asserted right under the Constitution, and by the Constitution, to interpret for himself and execute or disregard, at his election, any provision either of the Constitution or statutes of the United States.”155 An unconstitutional law was not valid, “but the executive—and that is the point in controversy here—is not the department of the Government to determine that issue between the people and their Representatives.”156 Thus, the breach of the Tenure of Office Act was an impeachable offense.157

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There were some weaknesses with Bingham’s claim. A small one was that Thomas Jefferson had taken the opposite position on the president’s right not to enforce what he saw as an unconstitutional law. In response, Bingham contended: “I know well that [Jefferson] was not one of the framers of the Constitution.  .  .  .  [H]e rendered great service to the country and deserves well of his countrymen; but he is not an authoritative exponent of the principles of your Constitution, and never was.”158 A more substantial objection was that under Bingham’s theory Congress could enact an invalid law over a veto and the president would be unable to stop horrible wrongs.159 His answer was that Congress could be held accountable by the courts or by the voters in that circumstance, but that was not reassuring.160 After all, this Congress was excluding voters from several states and would not let the justices hear McCardle’s constitutional claim. The most important gap in Bingham’s summation was that he never really explained why Stanton’s removal was a high crime and misdemeanor. Johnson’s legal team contended that only an offense comparable to bribery or treason—the two crimes specifically labeled impeachable offenses by the Constitution—could be the basis for a conviction.161 Bingham’s retort was that the charges were adequate because “they are crimes which touch the nation’s life, which touch the stability of your institutions.”162 This was pretty vague, though it was in accord with Bingham’s past statements about what qualified as impeachable. In considering the impeachment of a federal judge in 1858, he said: “It is too late to construe the Constitution to mean, by the words ‘other high crimes and misdemeanors,’ only offenses indictable at the common law or by statute.”163 Political crimes were impeachable in Bingham’s view, and relieving the secretary of war without authorization was one. The closest Bingham came to justifying his conclusion was that Johnson was guilty of attempting “to defeat the ratification of the fourteenth article of amendment, an amendment essential to the future safety of the Republic, by the judgment of twenty-five million men who have so solemnly declared by its ratification in twenty-three of the organized States of the Union.”164 The violation of the Tenure of Office Act was part of a “conspiracy with those lately in rebellion . . . to revive ‘the lost cause.’” After quoting the Fourteenth Amendment to the Senate, Bingham asked why Johnson was so determined to prevent its ratification.

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Was it because the new text “forever makes slavery impossible in the land . . . [or] makes compensation for slaves forever impossible in the land, either by congressional enactment or by State legislation. Is that the secret of this hostility? If not, then what is it?” Finally, Bingham contended that the president had no right to attack Congress or the Fourteenth Amendment as illegitimate, which led him to advance some repressive ideas about the limits of freedom of speech.165 His argument was that Johnson’s attacks on Congress as an unlawful assembly (since ten states were excluded) were “seditious words tending to incite the people to revolt.”166 In defending this assertion, Bingham declared that the Sedition Act of 1798, which had made it a crime to criticize President John Adams and is now seen as a terrible precedent of censorship, was constitutional “in a day of national peril.”167 “The freedom of speech guarantied by the Constitution,” he stated, “is that freedom of speech which respects, first, the right of the nation itself, which respects the supremacy of the nation’s laws, and which finally respects the rights of every citizen of the Republic.”168 “I stand, Senators, for that freedom of speech; but I stand against that freedom of speech which would disturb the peace of nations and disturb the repose of men even in their graves.”169 On the third day of his oration, Bingham was ready to hand the impeachment case to the jury: I ask you, Senators, to consider that we stand this day pleading for the violated majesty of the law, by the graves of a half million of martyred hero-patriots who made death beautiful by the sacrifice of themselves for their country, the Constitution, and the laws, and who by their sublime example have taught us that all must obey the law; that none are above the law; that no man lives for himself alone, but each for all; that some must die that the State may live; that the citizen is at best but for today, while the Commonwealth is for all time; and that position, however high, patronage, however powerful, cannot be permitted to shelter crime to the peril of the Republic.170

The galleries burst into applause when Bingham was done, and he said afterward: “God knows that I have tried to do my duty. It is in the hands of the Senate now. The great work of my life is done.”171

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It is hard to gauge the effectiveness of Bingham’s closing. Editorial comment was mixed, as one might expect on an issue of such importance.172 While one speech probably did not determine the trial’s outcome, Bingham’s address was exceptionally long, which may not have been the best approach. He mocked the president’s lawyers for acting as if the “way by which a man may make his speech immortal is to make it eternal,” but then he went on for three days.173 Indeed, at one point he stated that he wanted to wind up “as rapidly as possible, for I myself am growing weary of this discussion.”174 The magnitude of the occasion may have led him to include classical and historical references that were obscure, but whether those distractions actually harmed his case is uncertain. The moment of truth came on May 16, when Chief Justice Chase asked each senator: “Is Andrew Johnson, president of the United States, guilty or not guilty of high misdemeanors as charged in this article?”175 The Senate voted first on Article Eleven, which was a catchall charge with the best chance of success.176 Everyone knew the whip count heading into the vote, so when Senator Edmund Ross of Kansas announced “not guilty,” the managers realized that they would fall one vote short of the two-thirds needed for a conviction.177 Bingham was crestfallen and rested his forehead on the desk in front of him.178 The trial then recessed to let senators and representatives attend the Republican National Convention in Chicago, where Bingham joined the other delegates in supporting the nomination of Ulysses S. Grant as president.179 When the Senate returned on May 26, votes were held on Article Two and Article Three of the impeachment, but the result was the same.180 The trial was adjourned. The fight was over. The Senate’s decision to acquit Johnson is often depicted as a highminded act, but that is a highly sanitized version of history.181 By April, the president was ready to make a deal to keep his job. He offered private assurances to moderate Republicans that he would stop undermining the ratification process in the ten former Confederate States.182 Johnson also nominated John Schofield, who was acceptable to many Republican senators, as Stanton’s successor.183 Most important, on May 5—after Bingham’s summation started—the president sent the new constitutions of South Carolina and Arkansas to the Capitol.184 Arkansas was the first of the ten holdouts to ratify the Fourteenth Amendment, and

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now that Johnson was no longer encouraging resistance, many of the others would follow.185 The Chicago Tribune said, “Andrew Johnson has been a changed man. The country has been at peace. The great obstruction to the law has been virtually suspended. The President . . . has been on his good behavior.”186 Leaving nothing to chance, the president also dangled patronage in front of undecided senators and may have offered a few outright bribes.187 Senator Ross, a Republican whom John F. Kennedy later called a “Profile in Courage” for voting for acquittal, secured several plum appointments for his friends.188 At least four other Republican senators who did likewise got special favors.189 The House managers got wind of these rumors after the trial ended and launched an investigation, but no hard evidence of corruption was unearthed.190 The dark arts of politics are not easy to probe, and it is possible that these senators claimed their rewards after they decided to vote against the president’s conviction. In a sense, both sides won the impeachment trial. The president dodged the ultimate disgrace and the Executive Branch escaped a terrible precedent, but Bingham got what he wanted—the ratification of the Fourteenth Amendment. Over the next two months, Johnson kept his pledge of noninterference, and six more states—Florida, North Carolina, Louisiana, South Carolina, Alabama, and Georgia—joined Arkansas to ratify the new text.191 Bingham returned to the House to support the legislation that validated these votes and readmitted those former Confederate states to the Union.192 On July 28, Secretary of State Seward declared that the “proposed amendment has been adopted.”193 * * * In the maze of personalities and procedures that surrounded the ratification of the Fourteenth Amendment, it is easy to lose sight of what the struggle was about. Two weeks before Seward declared the Equal Protection Clause part of the Constitution, Bingham gave a speech in Maine where he explained that the goal was nothing less than the end of racism. To drive that point home, he challenged his audience to rethink the most hateful word in the English language, as this summary from a journalist on the scene explained:

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The speaker took exception to this abuse of the word “nigger,” and defined it to mean no race of men or to denote any color of skin, but designates a class of creatures by the color of their souls,—a mean fellow who robs hen roosts—sets his foot upon his defenseless fellow men— robs the cradle of its innocence—puts men and women into the shambles—that converts a fellow being into which, for want of a better name, we call a slave—these man-stealers, though their skins be as white as the driven snow, are “niggers.”194

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9 farewell to washington Equality of men and States before the law, was the watchword, the central, informing, vital thought of the Republican party. John A. Bingham, 1870

The extension and protection of voting rights dominated the final years of Bingham’s congressional career. After barely retaining his seat in 1868, he joined his Republican colleagues to ratify the Fifteenth Amendment, though he believed that its ban on racial discrimination at the polls did not go far enough.1 As the chair of the House Judiciary Committee from 1869 to 1873, Bingham dealt with the question of women’s suffrage, moved legislation that admitted the remaining former Confederate States, and attempted to suppress a guerrilla movement in the South, led by the Ku Klux Klan, that used violence to prevent the freed slaves from exercising their new rights.2 But another redrawing of his congressional district in 1872, combined with fatigue for a longtime incumbent, led to his failure to win the GOP nomination for another term. Bingham’s involuntary retirement from Congress was clouded by his involvement in the Credit Mobilier bribery scandal and his vote for a retroactive pay raise in one of his last official acts.

The 1868 Presidential Election Bingham was one of the most powerful figures in Washington, but he faced a tough race for reelection when he returned to Ohio in the summer of 1868. Democrats hit on a clever tactic to unseat him; they picked a popular lawyer from Cadiz, Josiah M. Estep, as their candidate.3 Their hope, of course, was that he would reduce Bingham’s majority in his home and swing the election. Bingham took this challenge 154

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seriously and barnstormed the district to make his case. Edwin Stanton campaigned for his friend in Steubenville, and on October 1, Bingham addressed more than 10,000 people in Cadiz.4 His most effective slogan in this race was: “The question of ’68 is the question of ’61: whether the Republic shall live or perish. It is as true in ’68 as it was in ’61, that there is no room in the country for any parties but two—the party of patriots and the party of traitors.”5 He also defended the Fourteenth Amendment and accused Democrats of supporting its repeal.6 On Election Day, Bingham won by only 416 votes (50.8 percent).7 This was his closest victory and reflected an uptick in Democratic turnout nationwide. Republicans kept control of Congress by a wide margin, but Ulysses S. Grant carried the popular vote by only 300,000.8 This meant that most whites probably voted against Grant and that his advantage came from African Americans in the North and in a few southern states.9 As a result, the party of Lincoln now had a strong incentive to extend the ballot to all African American men. Principle and partisan advantage coincided.

The Fifteenth Amendment The House of Representatives was a very different place when Bingham returned after the election. Thaddeus Stevens had died in August, and Benjamin Butler would replace him as Bingham’s full-time nemesis.10 There were also many more states represented in the chamber, as only Virginia, Texas, and Mississippi were still on the outside looking in.11 There was chatter that Bingham would join the cabinet after Grant was inaugurated, but in the meantime the House turned to another constitutional amendment.12 In January 1869, a proposal was made that went beyond Section Two of the Fourteenth Amendment and held that the “right of any citizen of the United States to vote shall not be denied or abridged by the United States or any State by reason of the race, color, or previous condition of slavery of any citizen or class of citizens of the United States.”13 Bingham took the floor to express his displeasure with this language and to challenge Congress to do more.14 He noted that other kinds of state voting restrictions would still be permissible under this proposal, and thus “an aristocracy of property may be established; an aristocracy

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of intellect may be established; an aristocracy of sect may be established.”15 In other words, “[T]he States may set up a religious test, and pronounce at once that all who are not of the Protestant faith shall be disqualified either to vote or to hold office, and add thereto a property qualification and an educational qualification.”16 Bingham said that establishing the right of African Americans to vote was now “the rule of my political life,” but he broke ranks with two other House Republicans to vote no on this proposal because it was too weak.17 When the House then took up the Senate’s version of the Fifteenth Amendment, Bingham introduced a substitute that included “creed” and “property” in its list of banned voting discrimination categories and added the right to hold office to the right to vote.18 This motion was approved, but in the conference committee between the House and Senate his additions were removed.19 Only a watered-down version of suffrage rights could receive a two-thirds vote in the Senate now that several southern states were represented, and the final text said only that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and that “Congress shall have power to enforce this article by appropriate legislation.”20 Keeping the word “property” in the Fifteenth Amendment might have rendered poll taxes unconstitutional long before the ratification of the Twenty-Fourth Amendment in 1964 prohibiting poll taxes in federal elections and the Supreme Court’s ruling in Harper v. Virginia Board of Elections in 1966 that did the same for state elections.21 On the other hand, the Fifteenth Amendment was ratified much more easily than the Fourteenth Amendment, with three-fourths of the states consenting by 1870.22

The Forty-First Congress and the 1870 Campaign The new Congress got to work as soon as the old one adjourned in March. Bingham took over the gavel of the Judiciary Committee, and Republicans moved to undo some of the emergency legislation that was enacted to control President Johnson.23 When that cleanup process ended, the House went into recess, and Bingham was finally able to spend some extended time with his family. A local reporter wrote in July that he “looks quite well and expects to remain here during most of

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the summer.”24 That September, John and Amanda celebrated the marriage of their oldest daughter, Lucinda, to Samuel Frazier, an alumnus of Franklin College and a pastor in the United Presbyterian Church.25 The Fraziers later gave the Binghams two grandchildren, Jessie and James, and moved to Pittsburgh, where Samuel Frazier became a popular man of the cloth.26 Not long after this wonderful event, Bingham was forced to deal with a difficult personal and professional loss when Edwin Stanton died just days after President Grant nominated him to the Supreme Court.27 When the House reconvened in December 1869, the fate of the remaining former Confederate States was still front and center. Bingham and Butler clashed again and again over the terms of their admission, with Bingham sticking to his view that no other conditions should be imposed beyond the ratification of the Fourteenth Amendment and African American male voting rights.28 He was particularly keen to bring Virginia back into the Union, and in January 1870 he praised a provision in its new state constitution stating that poor children had a right to attend public school and receive free textbooks from the state, which “was equality before the law in its noblest and highest sense.”29 (This was the only time that Bingham said anything notable about economic equality.) His support for the return of Robert E. Lee’s home state led to this sharp exchange with Butler about the direction of the Republican Party: Mr. BINGHAM: My chief purpose is to satisfy gentlemen of my own side of the House that Virginia has done all that the reconstruction acts required. Mr. BUTLER: Which side is the gentlemen’s side? [Laughter] Mr. BINGHAM: The gentleman is very wise—wise beyond his years; but I will inform him that he cannot read me out of the party with which I am associated, nor can he blot out my record. Vulgarity is not wit; assumption is not power.30

Bingham won this skirmish, and the bill accepting Virginia’s petition for statehood passed over Butler’s objections.31 By the middle of 1870, all of the ex-rebel states were back in Congress, though Union troops remained in the South.

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Before this session of Congress adjourned, Bingham gave a speech on American relations with the Vatican that contained his only detailed remarks on Catholicism.32 The issue was whether the United States should send a full ambassador to the Papal States. In arguing for a consul, which was a lower diplomatic rank, Bingham rejected the charge that he was seeking to “persecute Rome on account of the peculiar religious notions” entertained by the pope.33 He went on to explain that Martin Luther liberated the human race through an “insurrection of human mind against the despotism which for centuries had enslaved it.”34 In contrast to the Protestant belief in “free governments, free churches, free schools, free Bibles, and free men,” Catholic doctrine was “an attempt to fetter the freedom of conscience; it is an attempt to fetter the freedom of speech; it is an attempt to fetter the freedom of the press.”35 Nevertheless, Bingham reiterated his commitment to the idea “that religious belief, of whatever character, ought to be tolerated, that error itself ‘may be tolerated’ in the words of [Jefferson] ‘where reason is left free to combat it.’”36 For the first time in a decade, Bingham confronted a robust challenge within his party when he returned to Ohio in July. Six Republicans who hoped to replace him were hunting for signs of political weakness, but the local press remained on Bingham’s side.37 The Cadiz Republican wrote that while “many have grown rich upon the spoils of office, within the last sixteen years, Mr. Bingham remains poor.”38 Another newspaper praised him for his “lack of attention to the individual interests of his immediate constituents,” which was a strange way of endorsing a member of Congress.39 Bingham himself wrote several public letters stating (rather implausibly) that he did not want another term in the House but would not refuse one either. When the local party convention met that August, Bingham eked out a victory on the third ballot.40 The general election campaign was hard fought, with one critic attacking his rhetoric as rehearsing an “old, thread-bare lesson on the rebellion. . . . If Bingham’s audience were half as big fools as he is a consummate political juggler, they may believe such stuff, but not otherwise.”41 Nevertheless, in October he was returned to office by more than 1,000 votes (52 percent), and supporters in Cadiz celebrated by firing a cannon in Bingham’s honor.42

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The Woodhull Report and Women’s Rights Fresh off his reelection, Bingham’s first task was to handle the political hot potato of women’s suffrage. In January 1871, the House Judiciary Committee issued a report addressing a petition by Victoria Woodhull, a leading feminist, demanding a federal statute that “shall secure to citizens of the United States the right to vote without regard to sex.”43 Woodhull argued that the right to vote was a privilege or immunity of citizenship protected by Section One of the Fourteenth Amendment, but Bingham rejected this claim in his role as chair of the committee.44 This was the correct conclusion from Bingham’s perspective because he said repeatedly in 1866 that the Privileges or Immunities Clause did not cover voting. Indeed, this is why Section Two of the Fourteenth Amendment was written and why the Fifteenth Amendment was needed to give African American men the right to vote. What makes the House Judiciary Committee Report fascinating reading is its broader discussion of the Privileges or Immunities Clause. Bingham said that Section One did not “refer to privileges and immunities of citizens of the United States other than those embraced in the original text of the Constitution” by the Privileges and Immunities Clause. Put another way, the Fourteenth Amendment “did not add to the privileges or immunities before mentioned, but was deemed necessary to their enforcement. . . . It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the [Privileges and Immunities Clause].” Accordingly, the committee held that the Privileges or Immunities Clause “did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution.” There are two ways of understanding this passage that are consistent with Bingham’s other statements on this issue. One is that some members of the Judiciary Committee agreed with the view that he gave up in 1866, namely, that the Privileges and Immunities Clause of Article Four ethically bound the states to honor the Bill of Rights or other basic guarantees and that the Fourteenth Amendment merely gave Congress and the federal courts the authority to enforce those obligations. The other possibility is that some of Bingham’s colleagues did not think that

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Victoria Woodhull presenting her suffrage petition to the House Judiciary Committee. Bingham is seated at the side of the table to the right of Benjamin Butler. Originally published in Frank Leslie’s Illustrated Newspaper. Library of Congress.

the Fourteenth Amendment extended the Bill of Rights to the states.45 Bingham was not speaking for himself in this committee report, and therefore what he said should not be characterized as contradicting his prior statements about this constitutional language, but the context does show that there were competing interpretations of Section One at this time. On the broader issue of gender equality, Bingham was indifferent. Many of his public statements assumed that sex discrimination was constitutional, though he did say that, since a woman was a person under the Due Process Clause, “those rights which are universal and independent of all local State legislation belong, by the gift of God, to every woman, whether married or single.”46 It is difficult to know if Bingham’s lack of enthusiasm for women’s rights was personal or political. Elizabeth Cady Stanton (no relation to Edwin Stanton) once attended a speech that Bingham gave on the Fourteenth Amendment and asked him why his reasoning did not apply fully to women. He replied that he “was not the puppet of logic but the slave of practical politics.”47 This was a wonderfully enigmatic answer. Was he saying that he was an

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opponent of treating women as second-class citizens who could not act due to public opinion? Or was he pretending to sympathize, as canny politicians often do, while shifting the blame for inaction to others?

The Forty-Second Congress and the KKK Act The most urgent question before the new House was the protection of African Americans and moderate southerners from racist vigilantes.48 Hooded men in white were using the cover of night to rape, murder, and whip the former slaves throughout the South.49 The Ku Klux Klan’s use of violence at polling places was of particular concern, and Bingham responded by introducing the Enforcement Acts of 1870 and 1871, which gave teeth to the Fifteenth Amendment by providing federal officials with more authority to supervise elections for House members.50 When these remedies proved inadequate, President Grant asked Congress for an even stronger law, commonly called the Ku Klux Klan Act, that made it a federal crime for private persons to conspire for the purpose of denying others the right to vote, hold office, serve on juries, or enjoy the equal protection of the laws.51 Bingham supported this bill and gave his last major speech on March 31, 1871, to defend the legislation.52 While much of this address restated Bingham’s views on Section One, in one respect he made news. Bingham maintained that it was “a closed question—absolutely closed” that the rights in the Fourteenth Amendment were protected from abuses by “States and combinations of individuals.”53 This statement is important because the Supreme Court would later read the amendment to say that Congress and the federal courts can remedy only violations by the states.54 By contrast, Bingham rejected the idea that there was a rigid “state action” limitation in the Fourteenth Amendment, explaining that Congress could legislate “against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people.”55 As Bingham later said in connection with the Ku Klan Act, “[T]he Democratic party, speaking through gentlemen who choose to constitute themselves its leaders, stand before the country today in the attitude that they have occupied for the last twelve years; first, that it was unconstitutional to defend the Constitution when assailed by armed force; next, that it

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was unconstitutional to amend the Constitution; and finally, that it is unconstitutional to enforce the Constitution by laws.”56 In his Ku Klux Klan Act speech, Bingham also provided an intriguing clue into his thinking about how Section One should be interpreted. He told the House: “Under the Constitution as it is, not as it was, and by force of the fourteenth amendment, no State hereafter can . . . ever repeat the example of Georgia and send men to the penitentiary, as did that State, for teaching the Indian to read the lessons of the New Testament.”57 This was an unmistakable reference to the state law that was struck down by Chief Justice Marshall’s opinion in Worcester v. Georgia.58 Georgia had wanted to eliminate the autonomy of the Cherokee Tribe within the state’s boundaries, and one obstacle to that goal was the presence of white missionaries and secular whites in the tribal area who encouraged the Cherokees to stand their ground.59 Consequently, the state legislature passed a law requiring all whites that wanted to live in the tribal region to swear an oath affirming Georgia’s sovereignty and obtain a license from the governor.60 When some of the missionaries (including Samuel Worcester) refused to take this oath, they were jailed. The Supreme Court held in Worcester that this law was invalid because Congress had exclusive authority over relations with the Native American tribes.61 At the time, the Georgia statute was also condemned as a violation of religious freedom.62 Bingham’s citation of Worcester as an example of what the Fourteenth Amendment was designed to prevent is relevant for three reasons. First, his analysis implied that a neutral law (in other words, one that does not only target a religious group) can nonetheless violate the free exercise of religion protected by the First Amendment as applied to the states.63 Second, the reference to Worcester could be read to say that the long history of discrimination against Native Americans should receive more attention in the interpretation of the Equal Protection Clause.64 Finally, there is the suggestion that Worcester itself should play a greater role in how courts construe Section One, as it is the only antebellum case that Bingham cited (albeit indirectly) as a source of guidance. The Ku Klux Klan Act was enacted in April, and that summer John and Amanda took a long trip to the West Coast that served as a working vacation.65 Justice Samuel Miller, who would write the Supreme Court’s first opinion on the Fourteenth Amendment two years later,

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accompanied the Binghams, and an observer explained that “Bingham was almost daily expounding his views of the Amendment’s scope and purpose.”66 In California Bingham gave several speeches on behalf of Republican candidates, and in Oregon he delivered a well-received address on the idea “that government was made for man, not man for government.”67 The Civil War was fought, he said, to ensure that “no State will attempt to set up an authority in opposition to human rights of the authority of the nation.”68 While Democrats once denounced the Fourteenth Amendment as illegal, they were taught “by the voice of the people in [1868] and also by the same voice in 1869 and 1870” that it was now a fact, “but they do not say it is a law.”69 “That utterance,” Bingham explained, “is necessary to make the acceptance complete and to do away with future danger.”70 After a round of campaign appearances in Ohio, Bingham returned to Washington in December 1871 for what ended up being a lackluster session of Congress.71 The issues of Reconstruction were starting to recede, and his focus turned elsewhere. One surprising example came in a debate about a proposal to require all recipients of federal land grants to preserve some timber on that property.72 Bingham was enthusiastic about this plan and made a strong environmental pitch for the bill, telling his colleagues that the “East is today full of witnesses of the mad folly of people sweeping away their forests, and thereby turning their land into a desert.”73 Indeed, he wanted to go further and “make it a crime punishable with fine and imprisonment for reckless men once a year to set fire to the plains of the great West, and consume timber enough annually to supply the wants of this great nation.”74 When the House took up civil service reform legislation that would bar members of Congress from lobbying on behalf of others for government jobs, though, Bingham was more skeptical. He said that he would not tolerate any “bargain and sale in the distribution of patronage,” but argued that public officials had a First Amendment right to recommend people for posts.75 What modern observers might call cronyism was not wrong in his view if there was a vacant position and he knew “a man who has had his limbs blown away in the storm of battle in defense of your flag.”76 And in response to calls for a congressional inquiry into “the division of profits between labor and capital in the United States,” Bingham welcomed the suggestion but declared that “it is pitiful to hear gentlemen

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talk of labor in America being oppressed.”77 “[I]t is the pride and boast of America, that here for the first time, by the direct intervention of law, has been secured a fair day’s wage for a fair day’s work. I stand by the old-time American system, whatever these deluded men who are now for the first time in our midst calling themselves International or Commune may advocate.”78

The 1872 Presidential Election Bingham was first elected to Congress in 1854, when he seized an opportunity created by the enactment of the Kansas-Nebraska Act, but in 1872 he became a victim of political circumstance. The Ohio legislature reconfigured his district again following the 1870 census. In 1862, that process had made it harder for him to win a general election, but this time it hurt his chances of winning the Republican nomination.79 Tuscarawas County was moved into a different district, which weakened Bingham’s standing because he had lived there and still had a strong following in New Philadelphia.80 His home base around Cadiz was now one of least populated parts of the district, and politicians from larger counties thought that they deserved a turn in the House and a bigger share of federal patronage.81 Another complication was that the party was split that year between one faction backing President Grant and another, calling itself the “Liberal Republicans,” that was much less sympathetic to the enforcement of civil rights.82 Bingham was clearly on Grant’s side and attacked the dissidents for giving aid and comfort to Democrats, but this stand must have alienated some of his supporters.83 The bell tolled for Bingham when the local party convention met on July 30 in Bellaire.84 Two candidates stood against him, but his leading opponent was Lorenzo Danford, a popular Civil War veteran from Belmont County, which was one the biggest in the district.85 On the first ballot, Bingham got the most votes but fell four short of a majority.86 Rumors swirled that the delegates who were opposed to Bingham had agreed that the nomination should be rotated among their favorites for the next several years, but like most deals allegedly made in a smoke-filled room, this cannot be verified.87 In the seventh round, Danford edged Bingham out by two votes and captured the nomination.88 A paper reported that “in this hour of humiliation,” Bingham went “to stand up before those

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who had rejected him, to thank the people of the district for what they had done for him in the past, and to pledge himself to stand by the party and the candidate who had triumphed at his expense.”89 In his concession speech, he said he “cheerfully accept[ed] the situation” and would work for Grant’s reelection.90 Bingham was, in the eyes of one journalist, “taking a final leave of a public career that had absorbed the best days and the most ardent energies of his life; and he could not leave it without a pang.”91 He kept his word and made appearances in five states for the president, who was sent back to the White House with a healthy Republican majority in Congress that November.92

Credit Mobilier and the Salary Grab Most departing congressmen are saluted for their achievements, but Bingham’s final months in the House were an exercise in damage control. In 1868, he bought twenty shares of stock in Credit Mobilier of America, a subcontractor of the Union Pacific Railroad, from Congressman Oakes Ames.93 Ames was an investor in the firm and wanted to stop Congress from discovering that Credit Mobilier was, in fact, a dummy corporation that was using federal funds earmarked for building railroad tracks to enrich its shareholders.94 He decided that he needed more powerful friends, and thus sold shares to some other House members at face value (i.e., below market value) and let them reap a windfall. Bingham was one of the beneficiaries of this generosity, and when he sold his shares back to Ames in 1870, he made a $6,500 profit, which was a considerable sum at the time.95 When this scheme was exposed in December 1872, Bingham scrambled to explain himself. In testimony to a House committee, he stated that he was not influenced by his stock purchase, was never asked by Ames to do anything, and did not know that other members were making similar investments.96 In short, Bingham said that he had “done nothing which he believed required an apology or explanation.”97 On February 26, 1873, spectators trudged through a snowstorm to hear John Bingham’s last speech in the House of Representatives.98 Seventeen years earlier, the freshman from Ohio had made his debut with a ringing statement on freedom and slavery in Kansas. Now he was fighting for his reputation. He started by attacking the press, stating that some of its

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members “have dishonored their high station before the American people.”99 The House should repudiate “the cry of the hooting mob ‘crucify, crucify, crucify,’” and not “record a verdict of ‘guilty’ both against law and justice.”100 After a careful investigation, the House had cleared Bingham of misconduct but recommended the expulsion of Ames and one other member.101 Bingham opposed this motion on the ground that the Credit Mobilier bribes happened in a prior Congress, and therefore an expulsion from this Congress would be unconstitutional.102 In typical fashion, he backed up this argument with a lengthy discussion of the precedents on expulsion in Congress and in the British House of Commons. “[W]hatever else may be said,” he concluded, “I am ready here and now to record my vote, and by my vote to notify all comers that I offer no victim to the mob through a violated oath, and a violated Constitution.”103 In the end, the House only censured the corrupt members.104 Whatever ground Bingham made up with this resolute defense, though, was lost one week later. On the last day of the Forty-Second Congress, he voted for an omnibus appropriation bill that included a provision giving House members (including himself) a retroactive pay raise of $7,000.105 The public was outraged when they learned the truth, and the new Congress quickly rescinded the “Salary Grab” law. Critics lumped this act together with Credit Mobilier to portray Bingham as just another sticky-fingered public official. Indeed, when he was nominated by President Grant to be ambassador to Japan a few months later, some papers came out against him because he was one of the “treasury plunderers” and a “Credit Mobilierist.”106 Bingham never explained why he voted for a backward-looking pay increase that was sure to cause controversy, though the most plausible explanation is that he thought that the legislation also contained items that served the public interest and outweighed any harm created by the salary hike. On the heels of an ugly bribery scandal, though, this may not have been a wise decision. All in all, it was not a heroic end to the tenure of one of the greatest members in the history of the House of Representatives. There was nothing illegal about Bingham’s financial dealings, but he did get a sweetheart deal on Credit Mobilier stock and used his position of trust to help himself to some extra taxpayer money. His chances of making another political comeback in Ohio and doing more to shape the Constitution in favor of racial equality were now remote.

10 ambassador He sat down to rest and, as it proved, to rust. Walter Gaston Shotwell, 1927

After thirty years of political seasoning in Ohio and Washington, John Bingham was ready to step onto the world stage. In June 1873, President Grant appointed (and the Senate confirmed) him as the first American minister plenipotentiary to Japan.1 Over the next twelve years, Bingham served with distinction and took a firm anticolonial stance, arguing that Japan should be freed from one-sided foreign trade treaties that limited its sovereignty.2 His time in Tokyo was also a happy one, as most of his family lived with him, and he was able to expand his cultural and aesthetic horizons. Back home, though, the Supreme Court began weighing in on the meaning of the Fourteenth Amendment, and Bingham’s text was given a much narrower interpretation than he had intended.

The Slaughter-House Cases One month after Bingham retired from Congress, the justices issued their first opinion construing the Privileges or Immunities Clause of Section One.3 In the Slaughter-House Cases, some white butchers in Louisiana filed suit, claiming that a state law granting a monopoly on butchering to a New Orleans corporation was unconstitutional.4 Setting aside the irony that white southerners were the first litigants seeking the protection of the Fourteenth Amendment, the issue was whether the right to work in a particular trade unencumbered by excessive regulation was a privilege or immunity of citizenship. In a five-to-four decision, the justices said no in one of the last cases that Chief Justice Chase heard before his death.5 Justice Miller, Bingham’s old travel companion, wrote for the Court and held that the states retained a broad right to

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regulate most contract and property rights.6 Nothing about this holding was contrary to Bingham’s understanding, as he never endorsed the view that monopolies came within the scope of Section One.7 Slaughter-House did discuss what would count as national privileges or immunities, but the list provided by the Court fell far short of Bingham’s. Each citizen had the right to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports . . . to the subtreasuries, land offices, and courts of justice in the several States.8

This was not a thrilling start, but the opinion described other rights such as: to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. . . . The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus.  .  .  .  The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations. . . . [A ] citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment.9

Notably absent from this passage was a declaration that the Bill of Rights was part of the privileges or immunities of citizenship.10 The Court did refer to the right to “peaceably assemble and petition for redress of grievances,” which is part of the First Amendment, but that was not a clear statement on the relationship between the first eight constitutional amendments and the states. Whatever Justice Miller meant to say, his opinion could be read as saying that the Bill of Rights was not extended to the States by the Fourteenth Amendment. In fairness, Slaughter-House only set forth suggestions for

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what the Privileges or Immunities Clause covered, and thus did not foreclose the possibility that more were included. Nevertheless, the cases that followed Slaughter-House did not take an expansive view of that question. In 1876, the Court held that the Seventh Amendment “trial by jury in suits at common law pending in the State courts is not . . . a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge.”11 United States v. Cruikshank, which was also decided in 1876, overturned the convictions of a racist mob under the Enforcement Act of 1870 on the ground that the Fourteenth Amendment, contrary to Bingham’s view, “adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States.”12 What did Bingham think of Slaughter-House or the Supreme Court’s other Fourteenth Amendment decisions? Alas, the answer is a mystery. The most frustrating aspect of his biography is that, after he retired from Congress, Bingham said virtually nothing about constitutional law. For instance, he expressed no view on the “separate but equal” rule that was used to justify racial segregation in Plessy v. Ferguson.13 Nor do we know what he thought about the constitutionality of modern controversies such as racial preferences (i.e., affirmative action) or laws that adversely affect certain groups but are not intended to discriminate against them.14 Bingham’s legal disengagement after 1873 is odd. He did discuss other political topics in his private correspondence from Japan, and he must have cared about what the Court was doing.15 It may be that the sources in which he discussed legal issues were not saved, and if so, that was a terrible loss for posterity. There was also, however, an unlucky aspect to the timing of Bingham’s departure that may have contributed to his silence. He left the country just as the justices were starting their work on the Fourteenth Amendment and stayed away for more than a decade. Thus, he might not have known much about what the Court was doing or could have believed that it was not appropriate for a sitting ambassador to comment on Supreme Court cases. Whether his presence in Washington (or just in the United States) would have changed the outcomes of these great cases is unknowable, but since Bingham was the decisive force in getting Section One into the Constitution, one cannot dismiss the idea that his absence from the subsequent debate was consequential.16

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Leaving Cadiz Bingham’s decision to accept Grant’s offer and move to Tokyo was not a foregone conclusion. He could have resumed the full-time practice of law or sought a judgeship. Furthermore, he had never shown any interest in Japan or in foreign policy. But there were many attractions to becoming a diplomat. Bingham had never spent much time overseas, and the excitement of traveling to an exotic land must have appealed to him. The assignment also came with a princely salary of $12,000 a year.17 And the Japanese mission was a prestigious post that would give him more room to set his own agenda. Before Bingham could take up his new position, he needed to sort out some housekeeping details. In July he was honored with a gala dinner in Cadiz that was attended by more than 200 people.18 He leased his house to his brother-in-law, since Amanda and his two unmarried daughters, Emma and Marie, were going to Tokyo with him.19 Bingham also needed an assistant, and his first choice was William Lucas, a young African American from Cadiz.20 Lucas grew up poor and did errands for the Bingham family while attending school. He said later that “[f]rom the first Mr. Bingham took a personal interest in me and assisted me much in my efforts to pass through schools here.” When Bingham accepted the Japanese job, however, Lucas was on vacation. Lucas said that Bingham “was quite insistent that I should go with him and asked mother to give him my address that he might send for me to come home at once.” Mrs. Lucas was unwilling to let her son go to Asia, though, and did not tell him about the offer until after Bingham left. Lucas was bitterly disappointed, but he stayed in Cadiz as a teacher and resumed his friendship with Bingham after he returned in 1885. The Binghams left San Francisco and landed in Yokohama at the end of September.21 On October 7, he presented his credentials to the emperor Mutsuhito, known as the Meiji emperor, and set to work.22 Bingham was unhappy with the ramshackle American embassy and talked the State Department into giving him some money to lease a new building.23 Soon thereafter, he hired his staff and made his first round of social calls with high government officials.24 Like all foreign ambassadors then and now, Bingham spent much of his time attending

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ceremonial functions and helping Americans who got into trouble while traveling in Japan, but he also was confronted with more complicated political challenges.

The Land of the Rising Sun Japan was in the midst of the most wrenching transformation in its history when Bingham arrived. For more than two centuries under the military rule of the Tokugawa shoguns the country pursued a policy of isolationism from the West.25 In 1853, Commodore Matthew C. Perry led an American task force to Tokyo (then called Edo) and demanded that Japan open itself up to foreign trade.26 The European powers soon followed and, with American cooperation, imposed a treaty regime on Japan that restricted the country’s right to set its own tariffs and provided that when a foreigner was accused of a crime there, he must be tried in a foreign court.27 These humiliations undermined the shogun’s authority, and in 1868 a “Meiji Restoration” was declared, returning political power to the emperor.28 The new regime wanted to modernize Japan and throw off the colonial yoke. Bingham’s chief goal as ambassador was to end the system of unequal treaties and return full sovereignty to Japan.29 This was partly a reflection of his distaste for colonial interference, but his policy could also be interpreted as an effort to curry favor with a government that was seen as a rising power and a potential ally. In a sense, there was no cost to taking this “good cop” approach because the United States insisted that all of the European countries must agree to treaty revision as well— something that did not occur during Bingham’s term.30 (He wanted to revise our customs treaty with Japan on a bilateral basis, but was overruled by the State Department.) When questions arose that required Bingham to interpret these agreements, he usually went with the view that let Japan act unilaterally.31 Such a liberal approach led to friction with Bingham’s consular counterparts, especially the British ambassador, Sir Harry Parkes, who was an out-and-out imperialist.32 This did not mean that Bingham always backed the Meiji government. When Japan tried to increase taxes on kerosene—a major American export—Bingham did not defer to this decision and lobbied feverishly to protect his nation’s interests.33 A more dramatic example

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Mutsahito, the Meiji emperor of Japan. Library of Congress.

occurred in 1874 when Japan launched a punitive expedition against Taiwan (then called Formosa), which belonged to China.34 Americans manned one ship in this expedition (presumably as mercenaries), and a newspaper story suggested that the United States supported the attack.35 Bingham strongly denied the report and lodged a protest with the Japanese Foreign Ministry that the raid should be called off and that no Americans should participate.36 The operation went ahead anyway and ended with China paying a large indemnity to Japan, but Bingham ordered the arrest of the Americans and their ship by the embassy over the complaints of Japanese authorities.37

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While Bingham worked hard, he also settled into the carefree life of an expatriate (although he never mastered Japanese). In 1875 he wrote a letter that was reprinted in the New York Times and described Tokyo: We occupy a good American-built house, looking out upon the great ocean whose waters wash alike the shores of Japan and the shores of the United States, foremost of all lands on this planet. In the distant west, eighty miles away, the sacred mountain of Japan, [Fuji], looks down upon us and our home, now clothed in white raiment, like a sentinel of light, now in clouds and thick darkness, like a sentinel of doom.38

Bingham added that “[i]n landscape culture the Japanese, as you know excel.” He described the city of Kamakura and its large Buddha “with folded hands and thoughtful countenance, looking calmly out upon the ocean, as he has looked for centuries past, and may look for centuries to come.” He praised the lotus flower, which was “as fragrant as it is beautiful, larger than the rose of Sharon, sometimes pure white, sometimes colored with red, like the clouds of the morning, and always presenting stamens of gold and silver lustre.”39 And he mused that Native Americans must be descended from the Japanese because they were so similar in appearance, though he added that “whatever the history of these people may be, God has made of one blood all nations of men who dwell upon this earth.” Bingham’s happiness in Japan was enhanced by the marriage of his daughter. In Tokyo, Marie Bingham met James R. Wasson, a West Point graduate and Civil War veteran who taught engineering at the Imperial University.40 They were wed in 1876 and moved back to the United States, where they had a son, Robert, who was Bingham’s third and final grandchild.41

The 1876 Presidential Campaign Bingham kept a close watch on domestic politics, as his status in Japan depended on the continuation of a Republican administration. In 1874, Democrats won control of the House for the first time since the Civil War, and now they were aiming for the White House.42 Republicans replied by picking Bingham’s old friend from Ohio, Governor Rutherford B. Hayes, as its candidate.43 In a letter to Hayes, Bingham criticized

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the Democratic pick, Samuel Tilden, as a man “who in 1864 in the Convention of the conspirators at Chicago reported and agreed to the proclamation in favor of the rebellion.”44 Nevertheless, the election was a nail-biter.45 Tilden won the popular vote, but Hayes won the electoral vote when three states where Union soldiers were still a powerful presence—Florida, Louisiana, and South Carolina—were awarded to him amid loud complaints of fraud.46 Accusations were made that a secret bargain was reached under which the Democrats acquiesced in Hayes’s election in exchange for his promise to end military support for Republican Party governments in the South.47 The charge that Hayes had sold African Americans down the river for personal gain led Bingham to comment—for the only known time during his ambassadorship—on the Constitution. Writing to the new president in 1877, Bingham said Hayes was being “unjustly assailed,” and then added: Surely you have surrendered no right nor have you done any wrong in seeking by peaceful means to restore the unity of the Republic, the supremacy of the Constitution and “the equal protection of the laws” to all the people of every State and especially to the enfranchised colored people, who are the wards of the nation. There is nothing in all that you’ve said or done so far as I am advised which gives color of excuse for the charge made against you, that you have betrayed or that you intend to betray, the colored citizens of the Union, and leave them naked to their enemies.48

Bingham was whistling past the graveyard here, though in fairness his ability to assess the situation from thousands of miles away was limited. The lives of African Americans in the South would not improve under the Hayes administration.

The Dean of the Diplomatic Corps President Hayes kept Bingham in Tokyo, and during the next four years the ambassador dealt with crises at work and at home. In 1878, a major cholera outbreak occurred in Japan, and Bingham stood alone among the foreign representatives in defending the emperor’s choice

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to impose a rigorous quarantine as a way of halting the disease.49 The European powers were more concerned about their loss of commerce, which Bingham thought was “a monstrous proposition that they may each and all lawfully deny to this government the inalienable right of self-preservation.”50 Those same representatives approved when the Japanese government imposed a quarantine to stop a cattle plague, which led Bingham to remark that they thought the “lives of cattle are of more value than the lives of human beings in Japan.”51 In the same year, heartbreak returned to the Bingham family. John and Amanda’s oldest child, Lucinda, died in Pittsburgh of a heart attack at the age of thirty-two.52 She left behind her husband and two small children, and they soon moved to Japan to be with her grieving parents.53 Shortly after Lucinda’s death (and maybe because of it), Bingham returned to the United States for the first time in five years. In Cadiz a reporter wrote that “[h]e looks remarkably well and evidently enjoys better health than he had while fighting a constant warfare with the ‘copperheads’ and stumping a congressional district that was extremely close.”54 Bingham dined with the president at the White House and called for a increase in scholarships for Japanese students so that they could learn how “the eternal principles and the superb American experiment in republicanism are cultivated.”55 He returned to Tokyo in the summer of 1879 to host a state visit by ex-president Grant.56 When the 1880 presidential cycle came around, Hayes was unpopular and Bingham favored Grant’s return, but he was satisfied when his former House colleague from Ohio, James A. Garfield, won the nomination.57 Garfield narrowly prevailed in the general election and decided to leave Bingham at his post.58 Just a few months after assuming office, however, Garfield was assassinated and succeeded by Vice President Chester Arthur.59 Arthur followed in the footsteps of his three predecessors and continued to rely on Bingham, even though he was now sixtysix years old. The president even took the unusual step of endorsing his ambassador’s position on Japanese treaty revision in his 1883 Annual Message.60 On the other hand, Bingham was disgruntled with Washington’s neglect of his financial needs, as Congress failed to properly fund the embassy’s budget in 1884 and compelled him to pay some expenses out of his own pocket.61

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The success of Bingham’s foreign mission stood in stark contrast to his family woes. His new son-in-law, James R. Wasson, fell deeply into debt and tried to solve that problem by embezzling more than $30,000 from the army.62 Wasson was court-martialed in 1883 and sentenced to eighteen months in jail, though Marie Bingham stood by her husband even after she moved back to Tokyo.63 On the constitutional front, the Supreme Court struck down the Civil Rights Act of 1875, which had barred racial segregation in private businesses, in 1883 and held again that the Fourteenth Amendment gave Congress the power to correct wrongs only by states, in contrast to Bingham’s view that Congress could reach at least some private action.64 It would take ninety years for Congress to pass another law prohibiting private racial discrimination.65

Recall from Abroad The 1884 presidential election rang down the curtain on Bingham’s public service. President Arthur was cast aside by the Republicans, and the nomination fell to James G. Blaine, another former House colleague who was fond of Bingham and described him as “an effective debater, well informed, ready, and versatile. A man of high principle, of strong faith, of zeal, enthusiasm, and eloquence, he could always command the attention of the House.”66 After nearly a quarter century of Republican rule, though, the voters were finally ready to trust Democrats with power. Governor Grover Cleveland of New York defeated Blaine and decided that it was time for a new American ambassador in Tokyo.67 Bingham wound up his affairs and left Yokohama with Amanda, Emma, and Marie on July 21, 1885.68 The Japanese honored his service by hanging his portrait in their legation in Washington and by sending a representative to the dedication of his statue in Cadiz after Bingham’s death.69 Upon his return, Bingham gave a wide-ranging interview to a San Francisco newspaper. The reporter who met him said that he was “a gentlemen considerably past middle age. He has a blithe and cheery countenance, silvery white hair, and a tuft of a white beard. In his dress and appearance he looks like a hale and hearty country gentleman.”70 The ambassador was critical of colonialism, stating that it “has been as some vampire, which has been sucking from out that country its life-blood.”71

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While the Meiji government was “of course, autocratic,” Bingham felt that “no man had done as much for his countrymen as Bismarck [in Germany] and the Emperor of Japan.”72 It would be wrong, however, to conclude that he had gone native and could not see the flaws in Imperial Japan. Ten years after he left his post, Bingham stated publicly: “I doubt very much whether Japan can realize the present anticipations of her future prosperity if she persists in a career of military and unjustifiable territorial aggression. That’s always a risky experiment, and rarely comes to good.”73 No assessment of Bingham’s career in Japan can be complete without asking whether taking the job was a good choice. Walter Shotwell, who was Bingham’s friend, thought not. He felt that Bingham rusted in Tokyo and that the post “certainly ended his intellectual growth.”74 In Congress, “[t]he stimulus of his growing fame and the rivalries of the House had served to bring out the best that was in him. In Japan, these stimulants were wanting. He retired within himself and ceased to grow—in fact deteriorated.” “He went away in his prime,” said Shotwell, “and he came back an old man, with the sheaves of his life all gathered and his work all done.” A review of Bingham’s activities during his Asian adventure points to a somewhat different conclusion. Admittedly, his talents were wasted there, and the country would have been better off if he had entered the cabinet or been named to the Supreme Court. As Roscoe Conkling, his former colleague on the Joint Committee on Reconstruction, told Bingham in 1880, “I wish you were here in the arena.”75 Yet there are other intellectual dimensions beyond law, and in his years abroad Bingham drank deeply from the well of Japanese culture and became a more rounded person. He neither rested nor rusted.

11 obscurity I do hope that I will some day have a book written by you to refresh my memory of some of the things you so entertainingly related to me. Why not? Edward W. Bingham (nephew), 1886

Retirement was not kind to John Bingham. He had the gift of robust health until he was past eighty, but ended up outliving his income.1 Amanda passed away in 1891, and his two daughters feuded when they were not spending their father’s money.2 During his final years, mental decay and poverty took such a toll that Congress was pressed to give him a special pension.3 Meanwhile, the Supreme Court kept on construing the Fourteenth Amendment in a manner contrary to his broad design, culminating in Maxwell v. Dow, a case decided while Bingham was on his deathbed, which rejected the argument that the Bill of Rights was included in the privileges or immunities of national citizenship.4

Back in Cadiz Bingham returned home in September 1885 and was asked to speak at a Republican rally in Cadiz.5 His appearance was “received with the most enthusiastic applause,” and he was finally able to break free from the public political neutrality that was necessary while he was representing the United States abroad: It gives me pride to know that the representatives of the Republican party—which is emphatically the party of the country, the party of the Constitution and the party of the Union—had the good sense and the patriotism in this contest to open it with the declaration that the guarantees of the Constitution (meaning these amendments that were put 178

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in the Constitution by Republican votes both in the Congress and in the Legislatures of the States) must be sacredly observed and zealously maintained.

Bingham also made a direct pitch to African American voters, appealing to “my colored brother” not “to go and smite in the face the party that emancipated your race, to smite in the face a party which, despite a united Democratic opposition, declared you citizens of the United States, and thereby forever blotted out that horrible blasphemy once mouthed from the Supreme Bench of the United States, that a colored man has no rights which a white man is bound to respect.” He reminded the crowd that the “Constitution does not execute itself. . . . [I]t devolves upon the Judges of the Supreme Court, in their final judgment in all cases affecting the guaranteed rights of citizens to see to it that the spirit of the amendments is respected and carried out.” “You want unity and harmony,” he concluded. “So do I; so do all the Republicans in this land. There is nothing we desire so much. But we must have the Constitution of our land respected. We must have the guarantees which it secures all citizens respected and we must have them enforced.”6 It is tempting to read this as a criticism of the Supreme Court’s Fourteenth Amendment cases up to that time, but Bingham’s message was, in this instance, elusive. Initially, Bingham settled into an enjoyable routine. He practiced law part-time, for a fee if possible and pro bono when necessary.7 Invitations poured in for ceremonial speeches. He was the featured attraction at the dedication of a statute to Daniel Webster in New Hampshire and of the courthouse in Cadiz, which still stands today.8 Publishers asked if he wanted to write an autobiography, but Bingham never displayed any interest.9 He also dabbled in politics, attending the Republican National Convention in 1888 to vote for Benjamin Harrison’s presidential nomination, nearly fifty years after he had campaigned for Harrison’s grandfather.10 When he was not away, Bingham was a familiar figure in Cadiz who “wore a silk hat, which he politely doffed to the ladies. . . . His furlined overcoat and gold-headed cane would naturally attract attention; and the deference he received showed that he was not considered an ordinary personage in that community.”11 In 1886, a historian named Henry Howe paid a visit to Bingham’s home and offered this recollection:

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He personally answered my ring, and I made an appointment to meet him again in the afternoon. But we stood on the porch and talked some time. He is seventy-one years of age, a rather large gentleman, a blonde, with mild, blue eyes and kindly face—an elegant, easy talker, scattering unpremeditated poetical similes through his speech. . . . As we stood at the door, in the mild rays of the early sun, two housedogs came up to welcome me, Jack and Jake. Jack was a smart little black-and-tan, and observing my evident pleasure in this approach, Mr. Bingham said: “He has made the half circuit of the globe. I brought him from Japan, but he is a native of London; his ancestry known way back to the time of Queen Anne. The other dog, Jake, is a Newfoundland, with a cross of the St. Bernard. As for him,” and he said it with evident pride at the thought, “he is a native of this great State.” Then he continued: “It was a mystery to me how he got into the yard when the gate was closed, it swinging outward, and asking my little grandson, he replied, ‘Why, grandpa, don’t you know there is a knot-hole near the bottom; he puts his nose in that and backs with it.’ ‘Then how does he get out?’ ‘Oh, he pushes!’”12

In addition to the house that Howe visited, Bingham maintained a couple of rental properties in town, and one of his tenants was the father of Cadiz’s most famous twentieth-century son, Clark Gable.13 When Amanda died at the age of sixty-seven of what was described as “heart failure,” Marie and Emma became their father’s caretakers.14 Sadly, the sisters often did not get along; Emma never married and was apparently a prickly person.15 These family squabbles were exacerbated as Bingham’s financial stress increased. Nevertheless, when a minister who had met Bingham decades earlier saw him in 1892, he wrote that he “is still a strong man, and he is as warm as ever in expressing his news on the questions that perplexed the statesmen of his time. He spoke of his warning the Southern Congressmen that secession would be a death blow to slavery. ‘They glared at me like angry tigers,’ he said excitedly.”16 By the mid-1890s, Bingham was one of last leaders of Reconstruction left, as his last determined critic—Benjamin Butler—passed away in 1893.

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John Bingham in 1893. Harrison County Historical Society.

Bingham gave his last significant speech in 1895 to a veterans’ group and recounted his memories of President Lincoln. The Cincinnati Commercial Gazette reported that Bingham “completed his eightieth year a few weeks ago. Notwithstanding that and the fatigue of travel, he is still quite hale in appearance, and shows no abatement of the intellectual force that made him for so many years a power and a leader in public affairs.”17 Bingham explained to the Gazette that “I am too old now to be going about in this way, but my friends here insisted and urged it so at last I consented.” Asked if he was interested in returning to the Capitol, Bingham said: “No, I have not been at Washington now for several years. The man who is managing matters there [President Cleveland] is not to my liking.” Bingham’s final act in public life concerned his alma mater, Franklin College. The Ohio legislature proposed a bill in 1896 to let the large

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colleges and universities regulate higher education through a new administrative board.18 Bingham was unhappy with this attempt to create what amounted to an academic cartel, and he wrote a public letter arguing that the legislation “would close the doors of all the colleges in Ohio save the few that are richly endowed by the munificent gifts of the State or individuals. The effect of such legislation is to cut off forever the youths of our State, whose misfortune it is to be poor, and therefore unable to enter the colleges in the centers of population where the means of subsistence are beyond the income of the poor.”19 The proposal failed. In 1897, Bingham and William Lucas, the African American man that he had wanted as his secretary in Japan, were brought together by an awful accident.20 Lucas’s son Fred fell from the roof of a house in Cadiz and suffered injuries that brought him to death’s door. Here is the elder Lucas’s account of what happened next: During one of these dark sad days, I met Mr. Bingham on the street, who having heard of the accident, stopped me and said, “William Henry,” the name he always called me by, “How is Fred?” When I had told him of his precarious condition, he said “Well, that is too bad. You tell Fred that I am coming down to see him.” He was then walking feebly with his cane himself and I hardly expected him to come down so far. But that same evening I heard the tap of his cane on the porch. Opening the door there was Mr. Bingham, who came in and sat down by the bedside of my sick boy. It was a moment of surpassing interest. Here was a great man who had thrilled the nation with his eloquence and whose statesmanship had won imperishable and lasting renown, sitting by what seemed to be the bedside of a poor dying colored boy; and with voice trembling with emotion and eyes dimmed with tears, he talked of the nearness of eternity and the kind love of the Heavenly Father, as tenderly as a mother would comfort her sick child. And on going to leave, in bidding him goodbye he said, chokingly with emotion, “Fred, in our Father’s house there are many mansions, we shall meet again.”21

Fred Lucas recovered and became the town barber in Cadiz, and the man who befriended a former slave in his youth showed once again that his heart and faith were color-blind.

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Congressional Pension By 1898, Bingham was probably suffering from a form of dementia. He was unable to manage his finances, and local businessmen often advanced funds to tide him over when he was short.22 Relics that he bought in Japan were sold to pay debts.23 In response, the House of Representatives took up a petition by Lorenzo Danford—the man who defeated Bingham for the Republican nomination in 1872—to grant him a pension of fifty dollars a month.24 This request was based on his service as a judge advocate general, and backed by evidence “that he is 83 years of age, is very feeble, and nearly helpless physically and mentally, and is in very straitened circumstances financially, owing to causes beyond his control.” The Committee on Invalid Pensions said that “[w]e had a Grant, a Sherman, a Thomas, a Hancock, and other great generals at the front, but all their ability would have been of no avail without the aid of equally great and brave men at the capital of the nation to meet and nullify the fire in the rear. . . . One of the ablest, most patriotic, and fearless was Major John A. Bingham.” Fittingly, the pension bill generated a spirited debate. A Democrat from South Carolina asked why relief was justified given that Bingham never did anything except “sit at the Capitol.”25 A member from New York replied that Bingham “did noble work for the Union, and did much later on to bring the North and South together. He never expressed bitterness toward the South or the Southern people.”26 The sponsor of the legislation added that Bingham “is old and helpless. He has not a child on this earth that can help him. He has no living relatives that he can lean upon. He stands alone—an old man.”27 Moreover, he deserved help because “[h]e stood in this body the advocate of the fourteenth amendment to the Constitution. He was the author of that amendment. He stood in this body contesting with Thaddeus Stevens, of Pennsylvania, the supremacy upon that question. He was in favor of the rehabilitation of the Southern States, while Mr. Stevens was opposed to that at that time.”28 Yet another member said that “[i]f there ever was a man in Congress who stood up here against such men as Thaddeus Stevens in their bitterness, and pronounced words of sweetness to be ever remembered, John A. Bingham was that man.”29 This was an exaggeration of the differences between Bingham and Stevens, but one that

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was probably helpful in getting southern votes for the pension. Ultimately, the House compromised and gave Bingham twenty-five dollars a month.30

Maxwell v. Dow In his last months, Bingham spent most of his time sitting on his porch watching life go by. A friend recalled seeing him once put his finger on Section One of the Fourteenth Amendment and reading out the lines that he wrote.31 Bingham was probably not aware that at the end of 1899 the Supreme Court heard a case that would address once and for all the argument that the Privileges or Immunities Clause applied the entire Bill of Rights to the States.32 In Maxwell v. Dow, a defendant convicted of robbery in Utah by a jury of eight raised a constitutional challenge arguing that he was entitled to a jury of twelve under the Sixth Amendment.33 Part of his claim was that “all the provisions contained in the first ten amendments, so far as they secure and recognize the fundamental rights of the individual as against the exercise of Federal power, are . . . to be regarded as privileges or immunities of a citizen of the United States.”34 After a discussion of the key precedents, the justices turned this claim down 8–1. As for the statements of men like Bingham, the opinion in Maxwell explained that “[w]hat individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional amendment, or bill, or resolution, does not furnish a firm ground for its proper construction.”35 It would be decades before the Court restored the Bill of Rights to the sacred place that Bingham had envisioned, by extending most of its protections to the states through the Due Process Clause of the Fourteenth Amendment.36 Maxwell came down on February 26, 1900, and three weeks later John Bingham died.37 He was eighty-five. Old age was listed as the cause of death, and the townspeople of Cadiz crowded the county courthouse to pay their final respects.38 He was buried in the local cemetery next to Amanda under a gingko tree that they brought back from Japan.39 His estate consisted mostly of debts, and as a result his possessions were auctioned to the highest bidder.40 The constitutional wealth that he left behind, though, was priceless.

conclusion Legacy

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands—come. John A. Bingham, 1851

Enoch Powell, a member of the House of Commons who advised Margaret Thatcher, once wrote that “[a]ll political lives, unless they are cut off in midstream at a happy juncture, end in failure, because that is the nature of politics and of human affairs.”1 Powell’s maxim can be applied to John Bingham’s political life as it appeared in 1900. The states were still free, with just one exception, to violate the Bill of Rights.2 African Americans in the South lived in fear of lynchings and other horrors that made a mockery of his pledge that Section One of the Fourteenth Amendment “secures to every human being, irrespective of the accidents of birth, color, race, or the adventitious aid of wealth or social position, the equal protection of the laws.”3 And those same citizens were being denied their fundamental right to vote by their old masters despite the clear command of the Fifteenth Amendment. What Bingham dreaded in 1866 had come to pass: “[U]nless you put [the South] in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they may defy your restricted legislative power when reconstructed.”4

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Failure, though, is a risk of ambition, and few men tried to do as much in American politics as Congressman Bingham. Ending slavery, defeating secession, expanding liberty and equality for all citizens and aliens, and overcoming racism constituted a broad agenda for someone with no resources except words. The fact that this revolution was not finished in Bingham’s lifetime should not obscure how much progress was made because of his leadership. Guaranteeing the privileges or immunities of citizens, due process of law, and the equal protection of the laws in our Constitution created an invaluable resource for all who dream of expanding the boundaries of freedom and justice. Martin Luther King Jr.’s great triumphs, especially the Civil Rights Act of 1964 and the Voting Rights Act of 1965, would have been impossible without the work of Bingham and his Republican colleagues a century earlier. Politics is a team sport, so assessing Bingham’s personal contribution to Reconstruction is tricky, but one thing is clear—there would have been no Fourteenth Amendment as we know it without him. At a crucial stage, he persuaded the House of Representatives and the nation to pursue its ratification and reject Thaddeus Stevens’s view that Congress should implement its goals through a series of statutes. The language that Bingham put into Section One was critical, but that text would have counted for nothing if the unusual ratification process used to overcome the resistance of the ex-rebel states had not gone ahead.5 Nevertheless, Bingham’s career is also a cautionary tale about the limits of law. While getting the law right is important, attorneys are prone to overestimate that factor. The ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments was not enough to change the South or destroy racism. Robust economic and cultural reforms were also required, and in this sense Stevens had the better of his argument with Bingham. Whether what Stevens envisioned was politically possible at the time, however, is another matter. The only realistic choice may have been to change the law, which was hard enough, and hope for the best. After the 1787 Constitutional Convention, a woman asked Benjamin Franklin what the Founding Fathers had created. Franklin said, “A Republic, madam, if you can keep it.”6 Bingham could have said the same to a woman in 1868 about the new multiracial Republic created by our Founding Sons. In the years following Bingham’s death, his legacy fell and rose with the tides in intellectual and legal circles. During the era of Jim Crow

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segregation, Reconstruction Republicans were dismissed as fanatics who were interested only in punishing the South and grasping political power.7 The success of the Second Reconstruction in the 1960s removed this distorting lens of racism and dramatically altered perceptions of the men who rebuilt America after the Civil War. When the historian Charles Beard advanced his thesis early in the twentieth century that the Constitution was a conservative instrument designed to protect property rights and elites, Bingham was called a “railroad lawyer” who wrote the Due Process Clause for corporations.8 Subsequent scholarship debunked this story, though, which had more to do with Beard’s hostility toward certain Supreme Court decisions issued prior to the New Deal than with Bingham’s motives.9 And when Justice Hugo L. Black revived Bingham’s argument for the extension of the entire Bill of Rights to the states in 1947, opponents of that position sometimes littered their criticism with harsh attacks on Bingham’s intelligence or legal skills.10 That negative assessment was also more about the issues than the man, and now that the debate over the relationship between states’ rights and the Bill of Rights is largely settled, we can finally see Bingham as the creative statesman and lawyer that he truly was. On October 5, 1901, the people of Cadiz unveiled a bronze statute of Bingham in front of the Harrison County courthouse. Senator Joseph Foraker of Ohio spoke at the dedication, as did the secretary of the Japanese legation to the United States.11 The most poignant eulogy, however, came from the Reverend H. F. Fox, the pastor of the Cadiz African Methodist Episcopal Church. This African American spiritual leader stated that Bingham was “no idle dreamer, nor fanatic, but a truehearted, fearless, faithful champion of the bondsman and invincible defender of those principles which mean the fulfillment of the highest ideals consistent with truth, honor, justice, and liberty.”12 There is no more fitting tribute.

Bronze statue of Bingham in Cadiz. Photo by the author.

appendix The Reconstruction Amendments

The Thirteenth Amendment Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

The Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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. Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis

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of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slaves; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Fifteenth Amendment Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

notes

Notes to Introduction 1. See, e.g., Barry Friedman, “Reconstructing Reconstruction: Some Problems for Originalists (And Everyone Else, Too),” University of Pennsylvania Journal of Constitutional Law 11 (2009): 1207 (“Reconstruction, America’s Second Founding, remains curiously neglected as a subject of constitutional exploration.”); Jamal Greene, “Fourteenth Amendment Originalism,” Maryland Law Review 91 (2012): 978–1014 (providing a sophisticated argument about why lawyers pay relatively little attention to the debates surrounding the ratification of the Fourteenth Amendment). In this book, references to “the Confederacy” or “the South” generally refer to the whites there who supported slavery or secession. There were, of course, some white southerners who refused to support either. 2. U.S. Const., amend. XIV, § 1. One reason why the Fourteenth Amendment may get less attention than the original Constitution is that there is no easily accessible source on the legal debates during Reconstruction. For the Constitutional Convention of 1787, people can look at James Madison’s notes or read The Federalist Papers and get a good sense of what the Founding Fathers thought. One goal of this book is to create a handy reference work about the Fourteenth Amendment, though there are limits to how much a book about one man can serve that purpose. 3. See Brown v. Board of Education, 347 U.S. 483 (1954) (holding that de jure racial segregation in public schools violates the Equal Protection Clause); Reed v. Reed, 404 U.S. 71 (1971) (holding for the first time that a statute that discriminated on the basis of sex denied equal protection); Baker v. Carr, 369 U.S. 186 (1962) (holding that a state’s unequal weighting of votes for legislative districts could not stand); Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that a state could not prohibit the sale of contraception to married couples). 4. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1832) (holding that the Bill of Rights did not legally bind the states). The Fourteenth Amendment cases extending most of the Bill of Rights to the states are numerous and well settled. 5. See Greene, “Fourteenth Amendment,” 1001 (observing that Bingham is unknown because “his singular accomplishment was a failure in his lifetime”).

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6. M.B.G., “Sketch of Hon. John A. Bingham,” New Hampshire Statesman, Feb. 13, 1863. Different accounts quoted in the book give varying descriptions of Bingham’s eye color. 7. Allan Nevins, Hamilton Fish: The Inner History of the Grant Administration (New York: Dodd, Mead, 1936), 569. 8. See Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” Stanford Law Review 2 (1949): 26; John Harrison, “Reconstructing the Privileges or Immunities Clause,” Yale Law Journal 101 (1992): 1404 n.61. 9. While I strove for accuracy throughout this book, on occasion spellings in Bingham’s speeches or letters were modernized for ease of reading.

Notes to Chapter 1 1. See Charles A. Hanna, Historical Collections of Harrison County in the State of Ohio (New York: privately printed, 1900), 465; see also David O. Stewart, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy (New York: Simon and Schuster, 2009), 307 (stating that Bingham “lived long enough to see a distant cousin, William McKinley, elected president in 1896”). 2. The Bingham genealogy is drawn from Erving E. Beauregard, Bingham of the Hills: Politician and Diplomat Extraordinary (New York: Peter Lang, 1989), 1. Much of this family information is also in an unpublished paper by Milton L. Ronsheim, a collector of Bingham’s papers (Harrison County Historical Society). 3. See Hanna, Harrison County, 464 (stating that William Bailey was a “gallant soldier” who was captured by the British at Fort Washington). Esther’s mother, Mary Ann Duncan, was a Scottish immigrant and a Presbyterian who left money in her will for the building of a church in Philadelphia. See Beauregard, Bingham, 2. 4. For a complete account of Hugh Bingham’s career, see Richard L. Aynes, “The Anti-slavery and Abolitionist Background of John A. Bingham,” Catholic University Law Review 37 (1988): 887–92. Professor Aynes did the most thorough work on Bingham’s early years. 5. See History of Mercer County, Pennsylvania (Chicago: Brown, Runk, 1888), 654. A family history in the Bingham Papers describes Hugh Bingham as “one of the leading men of Mercer County.” Throughout the book, I use “Bingham Papers” to designate those held by the Ohio Historical Society. The Bingham Papers that are held at the Morgan Library in New York, which consist of bank boxes filled with documents, will be designated “Morgan Library.” 6. See Hans L. Trefousse, Thaddeus Stevens: Nineteenth-Century Egalitarian (Chapel Hill: University of North Carolina Press, 1997), 37–47 (describing Stevens’s role as the Anti-Masonic leader of the Pennsylvania legislature). 7. For more on Ritner’s hostility toward slavery, see Aynes, “Abolitionist Background,” 888–90.

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8. In 1845, Hugh Bingham was nominated for the office of trustee on a platform that was opposed to the extension of slavery. See Aynes, “Abolitionist Background,” 891; see also Richard L. Aynes, “The Continuing Importance of Congressman John A. Bingham and the Fourteenth Amendment,” Akron Law Review 36 (2003): 593 (observing that he later ran as a Whig candidate at a time when the party opposed the Mexican-American War). 9. One book on Mercer County gives Bingham’s birthdate as December 1815, see History of Mercer County, 654, but all the other sources give the January date. See, e.g., “John A. Bingham: The Aged Statesman Passes Over to the Realm of Spirit,” Cadiz Republican, Mar. 22, 1900. Beauregard wrote that Hugh and Esther had five children, though he may have meant that only five survived beyond infancy. 10. See Aynes, “Continuing Importance,” 592. The history of the Bingham House, as it is now called, is recounted at the site and on the Mercer County Republican Party website. 11. Hugh Bingham’s name appears about sixty times in the Mercer County Grantor/ Grantee indexes, though it is not clear whether that meant that he built a house, purchased the property, served as a notary, or was otherwise involved in the transfer. See Aynes, “Abolitionist Background,” 887 n.51. 12. Bingham had three sisters and three brothers. See Hanna, Harrison County, 464 (giving their names as Marian, Martha, Ellen-Mary, William, Hugh-Mason, and Thomas). When Bingham’s brother William died in 1876, his widow wrote to thank him for giving her money. See letter from Ellen M. Bingham to John A. Bingham, Oct. 14, 1876 (asking whether you “are not robbing yourself by being so generous to others”) (Morgan Library). 13. See letter from John A. Bingham to Lucinda and Emma Bingham, July 17, 1866 (Bingham Papers); Beauregard, Bingham, 112; cf. Cadiz Republican, Nov. 30, 1859, at 2 (stating that Bingham was going to stop in Mercer to see his father before heading to Washington). 14. See Walter Gaston Shotwell, Driftwood: Being Papers on Old-Time American Towns and Some Old People (London: Longmans, Green, 1927), 175 (stating that Bingham “first appeared in Cadiz as a motherless boy of twelve years. He was to make his home with an uncle, a well-to-do merchant of the village and pay his way by doing odd chores about the house”). 15. Ibid. at 176. 16. Henry Howe, Historical Collections of Ohio (Cincinnati: State of Ohio, 1902), 1: 891 (quoting a letter from John A. Bingham to Henry Howe dated June 8, 1886). 17. See Shotwell, Driftwood, 72–73 (describing Stanton’s practice in Cadiz and its role as the county seat); see also Benjamin M. Thomas and Harold M. Hyman, Stanton: The Life and Times of Lincoln’s Secretary of War (New York: Alfred A. Knopf, 1962), 17–21 (discussing Stanton’s time in Cadiz from 1836 to 1838). 18. See, e.g., History of Mercer County, 654 (noting that Hugh and Thomas “built the old Whistler House, which stood on the site of the present post-office and First

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National Bank”); Aynes, “Abolitionist Background,” 893 n.99 (providing evidence for Thomas’s wealth); cf. letter from Thomas Bingham to John Olmstead, John McBean, and Joseph Hunter, Apr. 16, 1847 (discussing the possibility of an investment by Thomas in a Cadiz bank). 19. See Aynes, “Abolitionist Background,” 894–95. 20. See Shotwell, Driftwood, 177. Associate judges also sometimes handled probate matters. Ibid. 21. See Organ, Jan 16. 1840, at 3. 22. See Hanna, Harrison County, 141; see also Erving E. Beauregard, Reverend John Walker: Renaissance Man (New York: Peter Lang, 1990), 35 (“The Associate Reformed Synod was a conservative Presbyterian body but less so than the Associate Presbyterian Church.”). 23. See Hanna, Harrison County, 140; see also Beauregard, Walker, 13 (describing the tenets of the Associate Presbyterians); Shotwell, Driftwood, 187–88 (noting that the United Presbyterians “were the most pronounced of all the churches in opposition to the spread of slavery”). One possible source for the error is that John Walker, who was a pastor in Cadiz before teaching Bingham at Franklin College, was an Associate Presbyterian. Walker, though, was not the pastor at Thomas Bingham’s church. See W. H. Hunter, “The Pathfinders of Jefferson County,” in Ohio Archaeological and Historical Publications (Columbus: Ohio Historical Society, 1900), 8: 170; see also Hanna, Harrison County, 145 (describing Walker’s pulpit at another Cadiz church). Furthermore, a history of the Associate Presbyterian Church that lists all of its ministers includes Walker but does not mention Taggart. See Basil G. McBee and Reid W. Stewart, History of the Associate Presbyterian Church of North America (Apollo, PA: Closson Press, 1983), 62. Some of the sources, it must be said, use Associate Reformed Presbyterian when they mean Associate Presbyterian and vice versa, which is confusing. 24. See Hunter, “Pathfinders,” 170; see also Beauregard, Bingham, 6 (discussing Taggart’s role as professor of evidences of Christianity at Franklin). 25. There is an unresolved dispute over whether Bingham was a member of the church or just a regular attendee. See C. Russell Riggs, “The Ante-bellum Career of John A. Bingham: A Case Study in the Coming of the Civil War” (PhD diss., New York University, 1958), 2 n.4 (observing that Shotwell claimed Bingham belonged to no church, but that other sources say that he was a United Presbyterian). 26. See “Hon. John A. Bingham Dead,” Harrison News, Mar. 21, 1900, at 2. 27. Aynes, “Abolitionist Background,” 897. 28. See George R. Crooks, The Life of Bishop Matthew Simpson of the Methodist Episcopal Church (New York: Harper and Brothers, 1890), 55. 29. See Report of the Proceedings of the Semi-centennial Celebration of Franklin College, New Athens, Harrison County, Ohio (1875), 6 (address of Andrew F. Ross, Franklin College President (June 23, 1875)). 30. See Aynes, “Continuing Importance,” 593; History of Mercer County, 654; Riggs, “Case Study,” at 7.

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31. Cadiz Democratic Sentinel, Nov. 8, 1854, at 2. 32. Andrew Jackson, Veto Message (July 10, 1832), in James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 1789–1897 (Washington, DC: Government Printing Office, 1899), 2: 590 [hereinafter Bank Veto]. 33. 17 U.S. (4 Wheat.) 316 (1819); see Jackson, Bank Veto, 2: 584–86. 34. 31 U.S. (6 Pet.) 515 (1832) (invalidating a Georgia statute that made it a crime for whites to reside within the tribal territory unless they swore a loyalty oath to the state); see Indian Removal Act, 4 Stat. 411 (1830) (providing funds for a voluntary emigration of the tribe). Bingham later identified Worcester as an important case for thinking about the interpretation of the Fourteenth Amendment, as chapter 9 explains. 35. See Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848 (New York: Oxford University Press, 2007), 383–85; Gerard N. Magliocca, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Lawrence: University Press of Kansas, 2007), 58–59. 36. Cong. Globe, 41st Cong., 3d Sess. 506 (1871) (statement of Rep. Bingham); see Cong. Globe, 34th Cong., 3d Sess. app. at 137 (1857) (statement of Rep. Bingham) (describing “the purer and better days of the Republic, when Marshall’s splendid and brilliant intellect, full-orbed, illumed its decisions”); ibid. at 139 (arguing that Worcester was contrary to the view that Congress was powerless to ban slavery in the territories); cf. Cong. Globe, 40th Cong., 2d Sess. 512 (1868) (statement of Rep. Bingham) (stating that M’Culloch was “a decision which, I venture to say, will live as long as our language lives”). 37. For instance, the Taney Court never cited Marshall’s discussion of implied federal authority in M’Culloch, though it was cited by one of the dissents in Dred Scott. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 614–15 (1857) (Curtis, J., dissenting). 38. See Shotwell, Driftwood, 178; see also Aynes, “Abolitionist Background,” 906 n.207 (describing how these academies operated). 39. See Shotwell, Driftwood, 178. 40. See History of Mercer County, 654; Shotwell, Driftwood, 178. 41. This account of Bingham’s stint at Mercer Academy comes from History of Mercer County, 654.

Notes to Chapter 2 1. See Shotwell, Driftwood, 178–79. 2. Franklin closed its doors in 1921, see Erving E. Beauregard, Old Franklin: The Eternal Choice (New York: University Press of America, 1983), 197, and its archives are now held by Muskingum College and by the Franklin Museum in New Athens. 3. See Howard Jay Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism (Madison: State Historical Society of Wisconsin, 1968), 256 (“Bingham . . . is

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known to have attended Franklin College, an abolitionist stronghold near New Athens, Ohio, in 1836–37. This was during the period the Ohio crusade was at its height. . . . Indeed, we today find record[s] of petitions and resolutions adopted by the Cadiz societies in 1837 which employed the identical due process–comity clause phraseology for which Bingham, thirty years later, showed preference in his drafts.”). 4. See Philanthropist, Mar. 10, 1837, at 3. 5. See Shotwell, Driftwood, 179 (stating that Bingham did not graduate and left Franklin due to an unspecified illness). 6. See Beauregard, Walker, 13–14; see also Hunter, “Pathfinders,” 130 n.2 (“The leading spirit in this enterprise [founding Franklin College] was Rev. John Walker, a minister of the secession church.”). 7. See Beauregard, Walker, 13; see also Hunter, “Pathfinders,” 184–85 (stating that the Seceders had “no sentiment in their theology, no fraternity of feeling toward their fellows, and consequently members were frequently before the elders for what would now seem the most trivial violation of church law”). 8. Hunter, “Pathfinders,” 180. For more on how Walker’s religious beliefs shaped his view of slavery, see David M. Smolin, “The Civil War as a War of Religion: A Cautionary Tale of Enslavement and Emancipation,” Cumberland Law Review 39 (2008–9): 199–202. 9. See Beauregard, Old Franklin, 2; Aynes, “Continuing Importance,” 595–96. 10. Hanna, Harrison County, 147–48. 11. See Beauregard, Walker, 43–44. 12. See Beauregard, Bingham, 6 (stating that Franklin College was founded in 1825 but was called Alma College until 1826); see also 1825 Ohio Laws 22 (incorporating Alma College). The school was renamed because of Franklin’s anti-slavery stance. 13. See McBee and Stewart, Associate Presbyterian Church, 110; see also Beauregard, Old Franklin, 7 (quoting Franklin’s charter, which said “no religious doctrine peculiar to any one sect of christians shall be inculcated by any professor”); Shotwell, Driftwood, at 185 (stating that Franklin College “was in a highly moral community, made up of Scotch Covenantors and Presbyterians, with some Methodists and a few Quakers”). 14. See Beauregard, Old Franklin, 9. 15. See ibid. at 26–27; see also Shotwell, Driftwood, 185 (“Franklin College, where [Bingham] received all the oratorical education he ever had, was a small college, perhaps never, during those years, able to number a hundred students in its enrollment, with usually no more than four in its faculty or board of instructors.”). 16. See Beauregard, Old Franklin, 17. 17. See Richard L. Aynes, “The 39th Congress (1865–1867) and the 14th Amendment: Some Preliminary Perspectives,” Akron Law Review 42 (2009): 1026 n.36 (listing as Franklin graduates Senator Edgar Cowen [Class of ’39], Senator

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Joseph Fowler [Class of ’43], and Representative William Lawrence [Class of ’38]). 18. See Beauregard, Old Franklin, 12–14. Franklin required four years for a degree, and it is not clear why Bingham would have been in the class of 1837 when he started there in 1835. Perhaps he received credit for his studies at Mercer Academy. 19. Hanna, Harrison County, 137. 20. See Semi-centennial Celebration of Franklin College, 6. 21. See Shotwell, Driftwood, 188 (explaining that Walker “was a man of strong anti-slavery convictions, [and] had maintained, in his own home, a station on the ‘Underground Railroad’”); Aynes, “Abolitionist Background,” 907 (noting Walker’s role as a leader of the Anti-Slavery Society); Hunter, “Pathfinders,” 171 (stating that Walker “was prominent as a conductor of the Underground Railroad, and his strong anti-slavery sentiment expressed in the pulpit and in the hall almost disrupted the college”). 22. See Graham, Everyman’s Constitution, 215 (stating that the Philanthropist was Birney’s paper); see also Magliocca, Andrew Jackson, 89–91 (describing the arc of Birney’s thinking). 23. Cincinnati Philanthropist, Apr. 28, 1837, at 3. 24. See Beauregard, Bingham, 7. 25. Shotwell, Driftwood, 185. 26. See ibid. at 186. 27. Beauregard, Bingham, 8 (referring to the minutes of the Philosophic Society, which can be found in the Franklin College Archives at Muskingum College). 28. William Pittenger, Oratory Sacred and Secular: or, the Extemporaneous Speaker, with Sketches of the Most Eminent Speakers of All Ages (New York: Samuel R. Wells, 1868), 7; see ibid. at 189 (describing Bingham as one of the greatest orators of his generation). 29. See Titus Basfield, An Interesting History of the Life of the Rev. Titus Basfield, a Colored Minister in the Associate Presbyterian Church (Pittsburgh: J. S. Davison, 1858). Bingham’s letters to Basfield and to Andrew Ross, another college friend, were destroyed in the 1990s, along with many autobiographical notes recorded by John N. Haverfield. John Campbell, a private collector in Cadiz, owned the letters, but when he died his widow threw them away. I spent a considerable amount of time and effort trying to locate any possible copies of the originals but came up empty. While Professor Beauregard quoted from these letters in his work on Bingham, I decided not to do so because the originals are unavailable. 30. Ibid. at 3. 31. Ibid. at 14. 32. See ibid. at 4–10. 33. See ibid. at 10. 34. See ibid. at 11–12. 35. See ibid. at 14–18.

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36. See ibid. at 20–21. 37. See ibid. at 21–22. 38. See ibid. at 25, 74. 39. Ibid. at 25–26. 40. See ibid. at 27–59. 41. See William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977), 171 (“The year 1833 marked the debut of American anti-slavery constitutionalism.”); see also Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction. (New Haven: Yale University Press, 1998), 161 (“Beginning in the 1830s, abolitionist lawyers developed increasingly elaborate theories of natural rights, individual liberty, and higher law . . .”); Randy E. Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” Journal of Legal Analysis 3 (2011): 167 (“From the 1830s to the 1850s, a truly remarkable body of constitutional argumentation was developed by these and other abolitionist lawyers and laymen to evaluate the constitutionality of slavery.”). 42. See, e.g., James L. Sundquist, Dynamics of the Party System: Alignment and Realignment of Political Parties in the United States (Washington, DC: Brookings Institute, 1983), 53. 43. See Barnett, “Whence Comes Section One?,” 174 (“Abolitionist constitutionalism can be traced to controversies in the 1830s over the legal treatment and constitutional status of free blacks.”). 44. See Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, rev. ed. (New York: Oxford University Press, 1995), 100–101; see also Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999), 139 (quoting a contemporary view that the gag rule “made more abolitionists in one year, by identifying the right of petition with the question of slavery, than the abolitionists would have made for themselves in twenty-five years”). 45. I developed this argument at some length in my first book. See Magliocca, Andrew Jackson, 88–93. 46. See Graham, Everyman’s Constitution, 163 (stating that “the real strength and leadership of the anti-slavery militants rested less with Massachusetts and Garrisonian elements and more with neglected forces and figures that centered in the Western Reserve” of Ohio and Pennsylvania). 47. Graham, Everyman’s Constitution, 167; see Barnett, “Whence Comes Section One?,” 176–77. 48. Jacobus tenBroek, Equal under Law: The Antislavery Origins of the Fourteenth Amendment (New York: Collier Books, 1965), 243; see Graham, Everyman’s Constitution, 167–68. 49. U.S. Const., amend. V; see Barnett, “Whence Comes Section One?,” 181 (quoting Weld’s argument that “no slave in the District has been deprived of his liberty by ‘a judicial process,’ or, in other words, by ‘due process of law’”); Wiecek,

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Antislavery Constitutionalism, 190 (“Weld anticipated the following thirty years of anti-slavery constitutionalism, and hit upon the precise mode that anti-slavery Republicans would choose to destroy the vestiges of slavery”). The source of the emancipation power was Article One, Section Eight of the Constitution, which gave Congress the authority “[t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.” U.S. Const., art. I, § 8, cl. 17. 50. The southern argument about due process was first made in 1836 by a House committee chaired by H. L. Pinckney of South Carolina. See Graham, Everyman’s Constitution, 212; cf. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 451 (1857) (attempting to turn this argument into law). 51. Theodore Dwight Weld, The Power of Congress over the District of Columbia (New York: J. F. Trow, 1838), 45. 52. Ibid. 53. Graham, Everyman’s Constitution, 178 (quoting the arguments in Crandall v. State, 10 Conn. 339 (1834)). 54. U.S. Const., art. IV, § 2, cl. 1. 55. See Wiecek, Antislavery Constitutionalism, 191; John Niven, Salmon P. Chase: A Biography (New York: Oxford University Press, 1995), 47–49. 56. See Graham, Everyman’s Constitution, 226. 57. See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986), 28–31. 58. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), 198. 59. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833); see also Amar, Bill of Rights, 140–45 (discussing Barron). 60. For a first-rate discussion of the ratification debates that led to the Bill of Rights, see Pauline Maier, Ratification: Americans Debate the Constitution, 1787–1788 (New York: Simon and Schuster, 2010). 61. See U.S. Const., art. IV, § 2, cl. 1; see generally Kurt Lash, “The Origins of the Privileges or Immunities Clause, Part I: ‘Privileges and Immunities as an Antebellum Term of Art,” Georgetown Law Journal 98 (2010): 1241–302. 62. See Wiecek, Antislavery Constitutionalism, 269; see also Barnett, “Whence Comes Section One?,” 225 (describing an 1849 book by Joel Tiffany that made this bolder argument). 63. See Cong. Globe, 37th Cong., 2d Sess. 1640 (1862) (statement of Rep. Bingham) (“All privileges and immunities of citizens of the United States in the several States,’ is what is guarantied by the Constitution. There is an ellipsis in the Constitution, as gentlemen doubtless know, which must be supplied to express clearly its meaning.”). 64. See Graham, Everyman’s Constitution, 236 (“It now is beyond doubt that the evangelical abolitionists anticipated members of the Joint Committee [on

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Reconstruction] by a full thirty years in developing the privileges and immunities—due process—equal protection phraseology as a bulwark for the rights of free Negroes and slaves.”). 65. Philanthropist, Mar. 10, 1837, at 3. 66. See Graham, Everyman’s Constitution, 237 (“It would seem quite possible for Bingham to have absorbed the Philanthropist rhetoric and doctrine while still a student at Franklin College. Or he may have done so indirectly and unconsciously in the forties through the scores of elaborate arguments and paraphrases repeated in pamphlets, speeches, and party platforms.”). 67. See Beauregard, Bingham, 9; Shotwell, Driftwood, 179. 68. See Beauregard, Old Franklin, 89–90, 92–93; Cadiz Republican, Nov. 30, 1871 (describing one of Bingham’s lectures at Franklin); see also Beauregard, Bingham, 149 (noting the honorary degree). He also served on a faculty committee that chose his classmate Andrew Ross as the new president in 1871. See Beauregard, Old Franklin, 91. 69. “Bingham on Immortality,” New York Times, July 28, 1895, at 3. 70. See Aynes, “Abolitionist Background,” 914. Bingham took on apprentices when he was a lawyer. See Beauregard, Old Franklin, 83, 85. 71. See History of Mercer County, 654; see also Aynes, “Abolitionist Background,” 914–15 (describing Pearson and Stewart’s practice). 72. See Beauregard, Bingham, 10; Aynes, “Abolitionist Background,” 916. 73. See Aynes, “Abolitionist Background,” 916–17. 74. See Shotwell, Driftwood, 179. The admission to the Pennsylvania bar can be found in the Bingham Papers. 75. See Beauregard, Bingham, 11; see also Thomas and Hyman, Stanton, 18 (describing Dewey’s partnership with Stanton). Bingham’s admission to the Ohio bar is in the Morgan Library. 76. See Cleveland Leader, Mar. 20, 1900 (dating Bingham’s arrival in Cadiz as after his admission to the Pennsylvania bar).

Notes to Chapter 3 1. For an exhaustive description of the Whigs, see Michael F. Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War (New York: Oxford University Press, 1999). 2. See ibid. at 41 (describing Harrison as the “[h]ero of the Battle of Tippecanoe in 1811, a former governor of the Indiana Territory and United States Senator from Ohio”); ibid. at 107–13 (providing an overview of the 1840 campaign). 3. See, e.g., Magliocca, Andrew Jackson, 74–75 (explaining why voters were tired of the Democrats by 1840). 4. Shotwell, Driftwood, 181; see Holt, Whig Party, 105 (“Without doubt, the Whigs employed flummery, mummery, and hoopla with astonishing ingenuity in order to arouse enthusiasm for Harrison.”).

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5. See Cadiz Organ, June 4, 1840; see also Freeman Cleaves, Old Tippecanoe: William Henry Harrison and His Time (Port Washington, NY: Kennikat Press, 1939), 3–5 (discussing Harrison’s father); Riggs, “Case Study,” 20–21 (describing this event and noting that Bingham was the only speaker who gave two speeches). 6. See Cadiz Organ, June 11, 1840; see also Riggs, “Case Study,” 21 (stating that the Democrats “were reluctant to let Bingham speak a second time, but despite the ruling of the Democratic chairman that the debate be adjourned, the crowd insisted it go on”). 7. See Cincinnati Daily Chronicle, Sept. 7, 1840; Guernsey Times, Sept. 19, 1840. 8. See Shotwell, Driftwood, 180–81 (“There naturally arose a rivalry between Bingham and Stanton, who later became Lincoln’s Secretary of War. They were both young and ambitious. Bingham had the gifts of an orator, a handsome person and a ready tongue; while Stanton had great industry and a tremendous personality. Bingham was a Whig; and Stanton, a Democrat.”); ibid. at 68 (noting that Stanton died “at the age of fifty-five, a prematurely old man”); Riggs, “Case Study,” 23 n.18 (observing that no contemporary account exists of the second Bingham-Stanton debate); see also Thomas and Hyman, Stanton, 25 (stating that Stanton “impressed his audience at Wintersville . . . when he debated the issues with John A. Bingham, a forceful lawyer from Cadiz who in later years as a congressman would become Stanton’s firm friend”). 9. Goodwin, Team of Rivals, 115; see Thomas and Hyman, Stanton, 5 (explaining that Stanton’s father made “it a matter of conscience not to use an article of medicine that may be the product of slavery”). 10. See Shotwell, Driftwood, 71–74; Thomas and Hyman, Stanton, 9–18. 11. See Thomas and Hyman, Stanton, 18; see also Goodwin, Team of Rivals, 115 (describing him as “[a] short, stout man, with thick brows and intense black eyes hidden behind steel-rimmed glasses”). 12. “Recollections of Lincoln and Stanton, His Secretary of War, by Hon. John A. Bingham of Ohio, the Judge Advocate That Tried the Assassins. Sidelights on History Specially Compiled by J. L. Conwell,” at 3 (Ohio Historical Society) [hereinafter Lincoln and Stanton]; see ibid. (stating that Stanton “was my senior in years and in the practice of law, but occasionally I met him while I was up from Franklin College”). 13. In 1837, Stanton became the prosecutor for Harrison County, which was the only elected office that he ever held. See Thomas and Hyman, Stanton, 21; see also Shotwell, Driftwood, 78 (describing the job). 14. There is a possibility that Stanton was asked to debate Bingham because the latter was seen as an especially strong Whig spokesman. See letter from John H. Forester to Edwin M. Stanton, July 21, 1840 (Library of Congress). 15. Shotwell, Driftwood, 81–82; see Riggs, “Case Study,” 23 n.18 (confirming the essence of Bingham’s account in an article published by the Log Cabin Farmer on July 23, 1840).

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16. Cincinnati Commercial Gazette, May 1, 1895, at 4. 17. Ibid. 18. Shotwell, Driftwood, 185; see Beauregard, Old Franklin, 32 (noting Stuart B. Shotwell’s graduation from Franklin in 1838 and his long career as a lawyer); letter from John A. Bingham to Rutherford B. Hayes, Nov. 29, 1870 (recommending the elder Shotwell to be a judge) (Rutherford B. Hayes Library). 19. Shotwell, Driftwood, 183. 20. See Holt, Whig Party, 112 (stating that William Henry Harrison carried 53 percent of the popular vote and beat Van Buren by 234 to 60 in the Electoral College); Riggs, “Case Study,” 28 (noting that Harrison County voted for the Whigs after voting for Democrats since 1828). 21. See Harrison Republican, June 3, 1841. 22. See Beauregard, Bingham, 13; Riggs, “Case Study,” 30. 23. See Cadiz Republican, July 15, 1841; see also Shotwell, Driftwood, 180 (describing Scott as “married to one of Bingham’s uncle’s daughters”); Aynes, “Abolitionist Background,” 920 (“John Bingham’s first law partner was Josiah Scott, his brother-in-law and an 1829 graduate of Franklin College.” (footnotes omitted)). 24. See Cadiz Republican, Sept. 9, 1841 (stating that Bingham addressed a “glorious Whig meeting at Harrisville on September 3rd”); see also Cadiz Republican, Oct. 28, 1841 (reporting Dewey’s and Scott’s victories). 25. See Ohio State Journal, Feb. 23, 1842; Magliocca, Andrew Jackson, 80–84 (discussing the rift between congressional Whigs and John Tyler, who became president after Harrison’s death in 1841, which led to substantial losses for the party in 1842). 26. See Cadiz Republican, Dec. 23, 1841 (containing the first known reference to the Scott and Bingham partnership); see also Cadiz Republican, Mar. 10, 1842 (containing an advertisement for Scott and Bingham). 27. See Shotwell, Driftwood, 177–78. Stanton succeeded Scott as the county prosecutor. See Aynes, “Abolitionist Background,” 920. 28. See Shotwell, Driftwood, 182; Aynes, “Abolitionist Background,” 920–23. 29. See Beauregard, Bingham, 14; Riggs, “Case Study,” 35–36. In effect, Bingham was a special master in bankruptcy cases. 30. See Beauregard, Bingham, 15; Riggs, “Case Study,” 40; see also Shotwell, Driftwood, 182 (stating that “Bingham, thinking to improve his location, removed to New Philadelphia, the seat of the adjoining county of Tuscarawas”). 31. Documents from Bingham’s private practice can be found in his papers and in the Morgan Library. 32. See Riggs, “Case Study,” 36. 33. The description of the trial in this paragraph of the text comes from Shotwell, Driftwood, 82. 34. I am unable to find the date of this trial. At that time, prosecutors would sometimes hire private attorneys to assist them. 35. Ibid.

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36. See Thomas and Hyman, Stanton, 45 (describing his move to Pittsburgh); ibid. at 70 (discussing his move to Washington in 1856). 37. One of Bingham’s early professional friends was Joseph Medill, a lawyer in New Philadelphia who later became the publisher of the Chicago Tribune and a patron of Abraham Lincoln. See Joseph Medill: A Brief Biography and an Appreciation (Chicago: Tribune Company, 1947), 4 (noting Medill’s early career and his association with Bingham). 38. See Wilson v. Jennings, 3 Ohio St. 528 (1854) (modifying a chancery decree regarding a mortgage held by Bingham’s client); Webb v. Anspach, 3 Ohio St. 522 (1854) (reversing a civil judgment for Bingham’s client on narrow procedural grounds); Woodford v. Ohio, 1 Ohio. St. 428 (1853) (reversing as nonseverable the assault conviction of Bingham’s client because the trial court sentenced him on a count for which he was acquitted); Kirby v. Ohio, 1 Ohio St. 185 (1853) (reversing the counterfeiting conviction of Bingham’s client because inappropriate terminology was used in the indictment); Sharpe v. State, 19 Ohio 379 (1850) (affirming a conviction for murder and rejecting various claims of error raised by Bingham); Williams v. McMillan, 18 Ohio. 167 (1849) (affirming the conviction of Bingham’s client for forcible detainer); Beauregard, Bingham, 20; see also Riggs, “Case Study,” 101 (citing correspondence between the bank and Bingham). Bingham may have worked on a case with Henry Stanbery, who represented Andrew Johnson at the president’s impeachment trial. See letter from Henry Stanbery to John A. Bingham, Feb. 3, 1855 (Morgan Library); see also Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: W. W. Norton, 1973), 122–23 (discussing Stanbery’s work at the trial). 39. Charles A. Beard and Mary R. Beard, The Rise of American Civilization (New York: Macmillan, 1935), 2: 112. 40. 14 Ohio 199 (1846). 41. See ibid. at 200 (“The agreed case shows that the plaintiff is a white man, the defendant a black woman. The action being on a sealed bill, and the defendant wishing to put in issue the execution of the instrument, swore to the truth of her plea of non est factum. The plaintiff then offered in evidence the deposition of the subscribing witness, who was also a black woman.”); Aynes, “Continuing Importance,” 599–600 (recounting the case). 42. See Jordan v. Smith, 14 Ohio at 200 (“To this deposition objection is made, on the ground that the deponent was not a competent witness, on account of her color.”); ibid. at 201 (quoting the law, which said that “[n]o black or mulatto person or persons, shall hereafter be permitted to be sworn of give evidence in any court of record, or elsewhere in this state, in any cause depending, on matter of controversy, where either party is a white person”). 43. Ibid. at 204. 44. See Harrison Republican, July 4, 1844; see also Beauregard, Bingham, 14 (describing the ceremony at the Associate Reformed Church that Thomas Bingham attended); Shotwell, Driftwood, 183 (describing Bingham’s house).

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45. These letters can also be found in the Bingham Papers and in the Morgan Library. 46. See Cadiz Republican, Feb. 5, 1891 (containing Amanda Bingham’s obituary). The births and deaths of the Bingham children are recorded throughout this book. 47. See Shotwell, Driftwood, 230–31. 48. See Beauregard, Bingham, 15; Shotwell, Driftwood, 183. Unfortunately, they built their home “in a valley subject to frequent overflows, the location was aguish [malarial]; and his house, being on the bank overlooking the canal and, therefore, in a situation as bad as any, [and] his family, as well as himself, contracted this disease.” Shotwell, Driftwood, 183. Shotwell said that the Binghams left New Philadelphia for Cadiz “after only a brief stay of two years.” Ibid. This is one of the few errors in his account. They actually lived in New Philadelphia until at least 1849—far more than two years—and moved to Cincinnati (not Cadiz) when they left. 49. Cadiz Republican, Feb. 5, 1891. 50. Cadiz Sentinel, Feb. 5, 1891. 51. There is one reference to a comment that Bingham may have made about slavery before 1848. John Quincy Adams introduced a petition in the House of Representatives from a Massachusetts group that called for the dissolution of the Union because federal money indirectly supported the slave system. See Paul G. Nagel, John Quincy Adams: A Public Life, a Private Life (New York: Alfred A. Knopf, 1997), 385–86 (discussing the uproar that ensued on the House floor). The Cadiz Republican reported in 1842 that the editor of the local Democratic paper, the Cadiz Sentinel, was “discharging his pop-gun at John A. Bingham, Esq., for presuming to say that John Q. Adams was not deserving of censure for presenting a petition from his constituents for the dissolution of the Union.” Cadiz Republican, Mar. 3, 1842. There is no way to know, though, if Bingham defended Adams as the Sentinel’s editor claimed. 52. Cadiz Sentinel, Sept. 18, 1844; see Harrison Republican, Aug. 8, 1844 (discussing Bingham’s speech at a Whig assembly in Steubenville); Ohio Democrat, Aug. 1, 1844 (reporting on his address to a party rally in Dover). 53. See David S. Heidler and Jeanne T. Heidler, Henry Clay: The Essential American (New York: Random House, 2010), 445–52; Holt, Whig Party, 194 (stating that Clay lost the election 170 to 105 in the Electoral College). 54. The letter was written to Chase and many of his abolitionist colleagues, such as Samuel Lewis, William Brisbane, and William Birney. See letter from John A. Bingham to Salmon P. Chase et al., Aug. 6, 1845, 1 (Pennsylvania Historical Society) (listing the other addressees as Henry Lewis and a man named Heaton) [hereinafter Chase Letter]; see also Niven, Chase, 89–90 (noting that William Birney was James Birney’s son); ibid. at 66–67 (stating that Samuel Lewis was an anti-slavery Methodist preacher); ibid. at 68 (describing Brisbane as a former slave owner who became a staunch abolitionist).

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55. Foner, Free Soil, 73. Chase’s most crucial contribution to the abolitionist cause was his argument to the Supreme Court in Jones v. Van Zandt, 46 U.S. (5 How.) 215 (1847), which was reproduced as a pamphlet that was widely read by northern elites. See Goodwin, Team of Rivals, 112–14; Barnett, “Whence Comes Section One?,” 211. 56. Ironically, Chase and Stanton were close, in part because they shared the pain of losing a wife and child to illness. See Thomas and Hyman, Stanton, 42; see also Goodwin, Team of Rivals, 115 (“In the five-year span from 1841 to 1846, Stanton had lost his only daughter, Lucy; his young wife, Mary; and his only brother, Darwin.”). 57. See Chase Letter at 1–2. 58. Ibid. at 2. 59. See Ohio Democrat, Oct. 13, 1846; see also Shotwell, Driftwood, 182–83 (stating that Bingham “became the State’s Attorney and was thus brought into some prominence”). 60. See Ohio Democrat, Oct. 12, 1848; see also Riggs, “Case Study,” 76 (stating that Bingham “won reelection by a scant fifty-three votes, the smallest majority of any Whig running for any public office in the county”). A master’s thesis claims that Bingham “prosecuted banks, insurance companies, county officials, tavern keepers . . . and drafted official bonds,” Maynard J. Brichford, “The Life of John A. Bingham” (master’s thesis, University of Wisconsin, 1951), 14, but no primary sources support this assertion. 61. See Riggs, “Case Study,” 52–53; see also Ohio State Journal, Jan. 20, 1848 (giving a full account of the convention and of its final resolution). 62. This draft is in the Bingham Papers. We know that he wrote this in 1848 because he refers to the recent revolutions in Europe, but we do not know whether he delivered this version of the speech. 63. See Ohio State Journal, Apr. 25, 1848; see also Holt, Whig Party, 320–29 (describing the 1848 Whig Convention). 64. See Beauregard, Bingham, 18; Riggs, “Case Study,” 59–61. Justice McLean was upset that Bingham did “so little” to get the local Whig organization to back his candidacy, see letter from John McLean to John Teesdale, Apr. 20, 1848 (Ohio Historical Society), though the justice was told that Bingham was doing “all he can,” see letter from H. H. Leavitt to John McLean, May 3, 1848 (Library of Congress). 65. See Holt, Whig Party, 270 (“On February 23, 1847 . . . Taylor gained a stunning triumph against a much larger Mexican force at Buena Vista. Even though the skill and vigor of Taylor’s subordinates, rather than Taylor’s generalship, produced the victory, Taylor got the credit.”); ibid. at 325 (describing Taylor’s victory at the convention); see also Heidler and Heidler, Clay, 413–14 (describing Santa Anna’s role in the Battle of Buena Vista). 66. See Holt, Whig Party, 271; see also Merrill D. Peterson, The Great Triumvirate: Webster, Clay, and Calhoun (New York: Oxford University Press, 1987), 432 (“Of

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the General’s politics nothing was known. A Louisiana cotton planter, he had spent most of his life on frontier posts and had never as much as cast a vote for president.”). 67. The account of Bingham’s actions at the convention is drawn from the North American and United States Gazette, June 10, 1848, and the Daily National Intelligencer, June 12, 1848. Abraham Lincoln was also a delegate at the convention, but he and Bingham did not meet. See Goodwin, Team of Rivals, 125 (noting Lincoln’s attendance and his support for Taylor because “we cannot elect any other whig”). 68. This is the source of the inscription on Bingham’s statue in Cadiz, which says: “No more slave states, no more slave territories, the maintenance of freedom where freedom is and the protection of American industry.” In hindsight, this was a bad choice for the statue. The language that Bingham crafted for Section One of the Fourteenth Amendment is a more fitting epitaph, but the decision not to use that is probably indicative of its perceived lack of importance when the statute was commissioned in 1900. 69. Bingham later explained that no “vote was taken upon this resolution. The President of the Convention declared me out of order, and stated the subject matter in order before the Convention to be the nomination of a candidate for Vice President.” “Another Slander Silenced—The Philadelphia Convention and the ‘Rejected,’ Resolution,” Cleveland Herald, Sept. 5, 1848. 70. Holt, Whig Party, 327. 71. See ibid. at 327–29. 72. “Another Slander Silenced.” 73. See Ohio Democrat, July 6, 1848. 74. See Goodwin, Team of Rivals, 126 (stating that Chase was in charge of drafting the Free Soil platform in 1848); Holt, Whig Party, 339 (describing the Free Soil platform). The argument that slavery should not be permitted in the territory acquired from Mexico was first made by Congressman David Wilmot, and thus became known as the Wilmot Proviso. See Howe, What Hath God Wrought, 767–68. 75. Cadiz Sentinel, Aug. 30, 1848. 76. See Cadiz Democratic Sentinel, Sept. 27, 1854. 77. Ibid. Furthermore, the source was a Democratic newspaper, which raises a red flag. 78. See Riggs, “Case Study,” 76; see also Holt, Whig Party, 368 (stating that Taylor carried the Electoral College by 163 to 127). Like William Henry Harrison, Taylor would die in office and be replaced by his vice president. The Free Soil vote in 1848 might explain why Bingham’s majority went down in his reelection as prosecutor. 79. See Niven, Chase, 123 (stating that Chase was elected to the Senate on the third ballot); ibid. at 152–53 (noting the end of his term). Prior to the ratification of the Seventeenth Amendment in 1913, state legislatures elected U.S. senators.

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80. There is no evidence about what Bingham was doing in 1849. The first reference to his presence in Cincinnati is in a newspaper ad from March 1850 for his new partnership. See Cincinnati Gazette, Mar. 7, 1850 (promoting “Bingham and Chambers, Attorneys at Law, Cincinnati, Ohio. Office on Third Street, opposite the Franklin Bank”). 81. See Beauregard, Bingham, 18. 82. See Aynes, “Continuing Importance,” 924; see also Cincinnati Gazette, Jan. 29, 1851 (advertising the firm of Bingham, Johnston, and Todd). 83. See Heidler and Heidler, Clay, 460. 84. The other important elements of the Compromise of 1850 were (1) the end of the slave trade (though not slavery) in the District of Columbia; (2) an agreement that slavery was permissible in the other territories that were taken from Mexico, even though it was unlikely that the states created there would have slavery; and (3) the grant of disputed land and debt relief to Texas. See Peterson, Great Triumvirate, 473; see also Holt, Whig Party, 478–82 (summarizing Senator Clay’s proposals that formed the basis of the compromise and explaining how they differed from the final product). 85. The description of the Fugitive Slave Act of 1850 comes from Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), 263. 86. See Niven, Chase, 139; see also Goodwin, Team of Rivals, 145 (quoting Ralph Waldo Emerson’s view that Daniel Webster’s support of the compromise “has deliberately taken out his name from all the files of honour”). 87. Letter from John A. Bingham to Salmon P. Chase, Dec. 26, 1850 (Library of Congress). 88. The entire description of this meeting in the text comes from the Daily Ohio State Journal, Nov. 21, 1850. 89. Letter from John A. Bingham to Samuel Galloway, Dec. 2, 1850 (Ohio Historical Society). 90. Ibid. 91. Cong. Globe, 36th Cong., 1st Sess. 78 (1860). 92. In his closing argument at President Johnson’s impeachment trial, Bingham went further and claimed that the Fugitive Slave Act of 1850 “never found an advocate in me.” Cong. Globe, 40th Cong, 2d Sess. supp. at 383 (1868) (statement of Manager Bingham). 93. See Cadiz Republican, Jan 1. 1852 (advertising Scott and Bingham); see also Riggs, “Case Study,” 101 (discussing his work in New Philadelphia). There are letters in the Bingham Papers directed to “Bingham and Gray” and “Hance and Bingham” in New Philadelphia. 94. See Ohio State Journal, June 28, 1851; see also Cadiz Republican, Feb. 10, 1853 (floating a similar trial balloon). An example of Bingham’s bread-and-butter political work comes in a letter to Senator Thomas Corwin where he recommended a job candidate: “From what I have seen of him, I infer that his honesty, his capacity, and his political faith and practice are such as would commend

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him as a . . . suitable person to serve in a Whig Administration.” Letter from Judge Battell to Thomas Corwin, May 5, 1851 (containing a handwritten comment from Bingham) (Library of Congress). 95. See Mammoth Weekly Steubenville Herald, Sept. 10 and 17, 1851. 96. See American Union, Aug. 27, 1851. 97. See American Union, Sept. 17, 1851. 98. John A. Bingham, An Address Delivered before the Literary Societies of Franklin College at New Athens, Ohio on the 23rd of September, 1851 (Pittsburgh: Shryock and Hacke, 1851) [hereinafter Franklin College Address]. Bingham was nominated on September 5, 1851, and the election was held on October 14; thus the speech came during the campaign. See Riggs, “Case Study,” at 93, 97 (listing both dates). 99. Franklin College Address at 4. 100. See Foner, Free Soil, 11–39 (explaining the importance of this narrative to antislavery activists). 101. Franklin College Address at 5. The next quoted line in the text also comes from this portion of the speech. 102. Ibid. at 6. Bingham would repeat this line from Milton many times during his career. 103. Ibid. 104. Ibid. at 6–7. 105. Ibid. at 7. 106. Ibid. at 7–8. The next quote in the text also comes from this portion of the speech. 107. Ibid. at 9. 108. Ibid. 109. Ibid. at 11. 110. Ibid. at 15. 111. Ibid. at 16. 112. Ibid. 113. Ibid. at 17. 114. See Cadiz Democratic Sentinel, Oct. 22, 1851. Bingham got 47 percent of the vote in this election. 115. American Union, Oct. 22, 1851. 116. See Beauregard, Bingham, xiii (noting Marie’s birth); Riggs, “Case Study,” 101–2 (stating that Bingham did not attend the local party meeting that selected convention delegates). 117. See Holt, Whig Party, 712–22. 118. Cadiz Democratic Sentinel, July 14, 1852; see Cadiz Democratic Sentinel, June 25, 1852 (describing Bingham’s speech and the resolution). 119. See Holt, Whig Party, at 717–19. 120. See ibid. at 730; see also Niven, Chase, 145 (noting the Free Soil Party’s name change in 1852)

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121. See Holt, Whig Party, at 754 (stating that Pierce defeated Scott 254 to 42 in the Electoral College); Riggs, “Case Study,” 106 (stating that the Democrats carried Ohio by fewer than 17,000 votes, while the Free Soil Party received more than 31,000 votes). 122. See Riggs, “Case Study,” at 110 (stating that the Democratic candidate for governor received 147,633 votes, the Whig nominee got 85,863, and the Free Soil candidate garnered 50,346). 123. A personal factor that may explain Bingham’s silence during this period was the death of his uncle (and father-in-law) Thomas in 1853. See Beauregard, Bingham, xiii. 124. For instance, Bingham does not appear to have made any campaign speeches in 1852 after the initial event in Cadiz. He was still a member of the Whig Party in 1853, see Cadiz Republican, June 2, 1853 (listing Bingham as a member of the Whig Central Committee of Harrison County), but apparently sat out that campaign.

Notes to Chapter 4 1. See Shotwell, Driftwood, 187; see also Holt, Whig Party, 806–7 (chronicling the introduction of the Kansas-Nebraska Act). 2. See, e.g., Foner, Free Soil, 95 (“Even the usually sedate New York Times said the bill ‘was part of this great scheme for extending and perpetuating the supremacy of this Slave Power.’”). 3. Cadiz Republican, Mar. 23, 1854. 4. Cadiz Republican, July 6, 1854; see Holt, Whig Party, 821 (noting the final passage of the Kansas-Nebraska Act in May). 5. Cadiz Democratic Sentinel, July 12, 1854. 6. See Beauregard, Bingham, 22–23; Riggs, “Case Study,” 115. 7. For a description of the nomination proceedings, see Cadiz Republican, Sept. 21, 1854, and Cadiz Democratic Sentinel, Sept. 20, 1854; see also Riggs, “Case Study,” 119 (stating that Scott withdrew after the third ballot). The Sentinel alleged that Bingham got the nod by reassuring Free Soil supporters that he had always been with them. 8. See, e.g., Cadiz Democratic Sentinel, Sept. 27, 1854; Steubenville American Union, Sept. 27, 1854. Meanwhile, a leading abolitionist organ charged that Bingham’s faith in a Constitution that tolerated slavery made him unreliable. See Antislavery Bugle, Sept. 23, 1854. 9. See Shotwell, Driftwood, 187; Cadiz Republican, Sept. 21, 1854. 10. Cadiz Republican, Sept. 21, 1854. When Bingham was asked if he thought that the Fugitive Slave Act of 1793 was unconstitutional, he deflected the question while noting some differences between the two statutes. See Cong. Globe, 36th Cong., 1st Sess. 1840 (1860). 11. Cadiz Republican, Sept. 21, 1854. 12. See Beauregard, Bingham, 23; see also Riggs, “Case Study,” 122–23 (discussing Stuart’s campaign).

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13. See Cadiz Republican, Sept. 21, 1854 (stating that slavery should also be barred from the District of Columbia and that no more slave states should be admitted to the Union). 14. See Shotwell, Driftwood, 186–87 (“The District then comprised Columbiana, Jefferson, Carroll, and Harrison Counties,—two large counties on the Ohio River, and two small ones back from it. The District had been Democratic.”); Riggs, “Case Study,” 117–18 (describing the district and Stuart). 15. See Shotwell, Driftwood, 188 (“[H]e was triumphantly elected, over the Democratic incumbent, by a majority of more than 4,800.”); see also Beauregard, Bingham, 23 (noting the vote total). 16. See Holt, Whig Party, 877–78. 17. See Beauregard, Bingham, 78. 18. Shotwell, Driftwood, 230; cf. ibid. (stating that when he was invited to give a speech in Columbus, “he replied that he would accept, but that his acceptance must be on one condition, viz., that he should not be unduly interrupted while there, inasmuch as quiet and rest were necessary to him, both before and after speaking”). The house was purchased in 1855, and the relevant sale documents are in the Morgan Library. 19. See Partnership Agreement between Lewis Lewton and John A. Bingham, June 22, 1855 (Morgan Library); see also Cadiz Republican, Mar. 19, 1856, at 4 (listing an ad for “Bingham and Lewton”). 20. See Riggs, “Case Study,” 132–34. The convention endorsed a platform that called for the repeal of the Kansas-Nebraska Act and opposed the expansion of slavery. See Cadiz Democratic Sentinel, July 18, 1855. 21. See Beauregard, Bingham, 23; see also Niven, Chase, 171 (discussing Chase’s nomination). 22. See Riggs, “Case Study,” 132. 23. John Sherman, John Sherman’s Recollections of Forty Years in the House, Senate and Cabinet: An Autobiography (New York: Werner Company, 1895), 226–27. 24. See ibid. at 171–72. For a more complete account of Giddings’s career, see George Washington Julian, The Life of Joshua Giddings (Chicago: A. C. McClurg, 1892). 25. See Julian, Giddings, 12–13. 26. See ibid. at 34–35; see also Stewart, Impeached, 37–39 (describing Wade). 27. See Julian, Giddings, 48 (“Adams was to be the mentor and inspirer, and Giddings the faithful and trusted disciple.”); Aynes, “Abolitionist Background,” 926–28 (talking about the relationship between Adams and Giddings). 28. See Julian, Giddings, 121–28; see also Aynes, “Continuing Importance,” 600 (“Giddings was, at the very least, a militant anti-slavery Congressman who was censured for violating the gag rule, only to resign and be reelected by his constituents.”). 29. See Julian, Giddings, 311 (“[T]he Free-Soil members of this Congress sent forth a paper touching the proposition of Mr. Douglas entitled an ‘Appeal of the Independent Democrats in Congress to the People of the United States.’ It was

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signed by S. P. Chase, Charles Sumner, [and] J. R. Giddings, . . . Giddings made the first draft of this address, which was revised and rewritten by Mr. Chase.”). 30. David W. Bartlett, Modern Agitators: Or Pen Portraits of Living American Reformers (New York: Miller, Orton, and Mulligan, 1855), 170. 31. See Beauregard, Bingham, 25; see also Julian, Giddings, 398 (stating that Bingham and Giddings occupied the same quarters). 32. Julian, Giddings, 399–400; see letter from John A. Bingham to Joshua R. Giddings, Dec. 7, 1856 (praising Giddings for his “noble stand . . . taken in debates on this and former occasions, in and out of Congress”). When Giddings retired, Bingham organized a tribute from his colleagues. See letter from John A. Bingham to Joshua R. Giddings, Mar. 4, 1859 (“[I]t is to me a great gratification that so many Senators and Representatives have thus honored themselves by this testimonial of regard for your spotless character and strict integrity.”). Bingham’s letters to Giddings are in the Ohio Historical Society. 33. See, e.g., Letter from John A. Bingham to Joshua R. Giddings, Mar. 4, 1859 (addressed to Father Giddings); letter from John A. Bingham to Joshua R. Giddings, Feb. 3, 1857 (referring to Giddings as his counselor); see also Julian, Giddings, 400 (“The tones of [Bingham’s] voice, which were winning, became musical when he addressed ‘Father Giddings.’”). When Bingham lost his seat in 1862, a paper alluded to their connection by praising the defeat of “Father Bingham.” See Cincinnati Daily Enquirer, Oct. 17, 1862, at 2. 34. Julian, Giddings, 403; cf. letter from John A. Bingham to Joshua R. Giddings, Feb. 3, 1857 (stating that Bingham missed Giddings while the older man was back in Ohio convalescing). Giddings was not nominated for another term in 1858, and a paper in Steubenville commented that “it probably would have been as well for Giddings to have attended to his own business, instead of devoting his time and energies to having Mr. Bingham nominated.” See “Gone Up,” American Union, Sept. 1, 1858, at 2. 35. Letter from Joshua R. Giddings to George W. Julian (Jan. 18, 1863) (Library of Congress). 36. See Cadiz Democratic Sentinel, Nov. 28, 1855; see also Cadiz Republican, Aug. 22, 1855 (describing Bingham’s introduction of Chase at a rally in Cadiz); American Union, Aug. 29, 1855 (discussing an appearance by Bingham and Chase in Steubenville). 37. See David Herbert Donald, Charles Sumner (New York: Da Capo Press, 1996), 276; see also Beauregard, Bingham, 25 (observing that the House was unable to elect a Speaker until February 2). 38. See Beauregard, Bingham, 27; Riggs, “Case Study,” 146; cf. James Grant, Mr. Speaker! The Life and Times of Thomas B. Reed (New York: Simon and Schuster, 2011), 271 (providing a recollection of a House member about an incident when a gun was fired in the chamber accidentally and “[i]n an instant there were fully 30 or 40 pistols in the air, and the scene looked more like a Texas bar-room than the Congress of the United States”).

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39. Bingham initially backed Lewis Campbell, another member from Ohio, but eventually switched his vote to Nathanial Banks, the eventual winner. See Cong. Globe, 34th Cong., 1st Sess. 6–10 (1855); Riggs, “Case Study,” 145. 40. Cong. Globe, 34th Cong., 1st Sess. 222 (1856) (statement of Rep. Bingham). 41. See ibid. at 227 (statement of Rep. Richardson). 42. Ibid. at 228. 43. See ch. 151, § 3, 1855 Territorial Session Laws of Kansas; see also Cong. Globe, 34th Cong., 1st Sess. app. at 124 (1856) (statement of Rep. Bingham) (describing the Kansas legislation). 44. U.S. Const., art. IV, § 4. Not everyone agreed with Bingham’s view that the Constitution applied to the territories. See Thomas Hart Benton, An Examination of the Dred Scott Case (New York: D. Appleton, 1857), 12 n*, 14–15 n*, 26–27, 31–32 (exploring precedents supporting the conclusion that the Constitution did not bind Congress when it legislated for the territories). 45. Liberator, Feb. 8, 1856; see Foner, Free Soil, 248 (“The month of February 1856 in which Banks’s election was secured was a pivotal one in the development of the Republican party.”). 46. See Cong. Globe, 34th Cong., 1st Sess. 411 (1856). 47. Bingham’s other accomplishment on the committee was in writing a report that resolved two disputed House races in Illinois. The Illinois Constitution barred judges from holding any other elected office until a year after they had left the bench. When two former state judges were elected to Congress less than a year after leaving the court, Bingham concluded that the state requirement was unconstitutional because states could not add to the qualifications set forth by the Constitution. See Beauregard, Bingham, 29–30; Riggs, “Case Study,” 189–90; see also U.S. Const., art. I, § 2, cl. 2 (“No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.”); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (reaching a similar conclusion). 48. See Kenneth Stampp, America in 1857: A Nation on the Brink (New York: Oxford University Press, 1990), 145; see also Shotwell, Driftwood, 193 (“[T]he South was rushing emigrants into Kansas, so that, by having a majority of the voters there, the Territory might be made a Slave State. The North, seeing this, hurried in Free Soil emigrants.”). 49. See Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), 193; see also Goodwin, Team of Rivals, 183 (“A guerilla war had broken out between Northern emigrants desiring to make Kansas a free state under the ‘popular sovereignty’ provision of the Nebraska Act, and so-called ‘border ruffians,’ who crossed the river from Missouri and cast illicit votes to make Kansas a slave state.”).

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50. See Franklin Pierce, Special Message, Jan. 24, 1856, in Richardson, Messages, 7: 2885–93; see also Stampp, America in 1857, 146 (describing the election of the Topeka legislature and its conflict with pro-slavery forces). 51. See, e.g., Riggs, “Case Study,” at 222. Congress refused to seat either delegate. 52. Cong. Globe, 34th Cong., 1st Sess., app. at 122 (1856) (statement of Rep. Bingham); see ibid. (“[T]he fact is apparent, that one or the other of the Delegates here claiming a seat as the representative of the people of Kansas is here in violation of the organic law of the Territory.”) 53. Ibid. app. at 123. 54. Ibid. app. at 125–26. 55. Bingham’s first point was that the territorial statute improperly delegated the assignment of polling places to county commissioners and sheriffs. See ibid. app. at 123. Next, he argued that the decision by the legislature to give voting rights to all Native Americans in Kansas violated the act of Congress organizing the territory, which said that only citizens could vote. See ibid. app. at 123–24. Lastly, Bingham said that the legislature was illegal because it did not convene in the place that Congress had designated. See ibid. app. at 124–25. 56. Ibid. app. at 125. 57. See ibid. app. at 124. The discussion in the text about this part of Bingham’s speech refers to the same page of the Congressional Globe. 58. Ibid. 59. See, e.g., tenBroek, Equal under Law, 145 (“The constitutional ideas which Bingham so forcibly expressed in his congressional speeches of 1856, 1857, and 1859, far from being his spontaneous creation . . . were the constitutional heritage of a quarter of a century of abolitionism.”). 60. Daily National Intelligencer, Mar. 6, 1856. 61. National Era, Mar. 6, 1856. 62. “Great Speech of Hon. John. A. Bingham on the Kansas Election Case,” Morning Leader, Mar. 17, 1856. 63. See Beauregard, Bingham, 28. 64. See Newark Mercury, Apr. 12, 1856 (covering Bingham’s speech in New Jersey and calling it “a complete and unanswerable argument in behalf of the principles of the Republican Party, and a thorough vindication of the Fathers of the Republic in reference to the subject of Slavery”). 65. Speech of Hon. John A. Bingham, Proceedings of the Meeting Held at the Tabernacle, in the City of New York, on the 29th of April, 1856, 9 [hereinafter New York Address]; cf. “Republicanism: Immense Meeting at the Tabernacle,” New York Times, Apr. 30, 1856, at 4 (stating that Bingham’s “appearance was the signal for a burst of loud applause”). 66. New York Address at 9. 67. Ibid. at 10. 68. Ibid. 69. Ibid. at 11.

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70. Ibid. at 13. 71. Ibid. at 12. 72. Ibid. at 14; see ibid. (stating in the commentary after Bingham’s speech that he “spoke for about an hour, and made some capital points, to which the audience testified their lively appreciation by frequent and rapturous applause”). 73. Albert Gallatin Riddle, Recollections of War Times (New York: G. P. Putnam’s Sons, 1895), 196–97. 74. Ibid., 115. 75. Indeed, a document written before Bingham left Cadiz in 1873 to become the Japanese ambassador listed the books that he owned and contained a broad range of fiction and nonfiction (unpublished text, Harrison County Historical Society). In an 1857 letter on public speaking, Bingham also displayed broad knowledge of the classics, quoting from Plato and referring to Cicero’s speeches against Mark Antony. See Pittenger, Extemporaneous Speaker, 7–10 (quoting a letter from Bingham to Pittenger). 76. See Shotwell, Driftwood, 230; see also letter from Bishop William M. Brown to Marie Wasson, Nov. 1, 1901 (Morgan Library) (stating that Bingham “was the most interesting conversationalist that I have ever met”). Marie Wasson was Bingham’s daughter. There is some evidence that Bingham thought Francis Bacon was the real author of Shakespeare’s plays. See letter from Henry Burr to John A. Bingham, Sept. 4, 1883 (Bingham Papers) (“It was from you that I first heard an intimation that Bacon and not Shakespeare wrote the plays that pass for Shakespeare’s.”). 77. On one occasion Bingham made light of his tendency to be long-winded: Mr. ELDRI D GE: I will give the gentleman another opportunity now if he will answer the question in one minute. M r . B I N G HA M : Well, a minute is rather short. [Laughter.] Mr. ELDRI D GE: I know it is short, but I want to cut off the rhetoric. [Laughter.] M r . B I N G HA M : Shakespeare gave a fellow forty minutes to girdle the earth. [Laughter.] Mr. ELDRI D GE: Well, I do not want you in answering to go round the globe. [Laughter.] Cong. Globe, 40th Cong., 2d Sess. 584 (1868). 78. “Republicanism: Immense Meeting at the Tabernacle,” at 4. 79. Cf. Cong. Globe, 40th Cong., 1st Sess. 595 (1867) (statement of Rep. Schenck) (attacking Bingham with the put-down that “there are some people in this world who know everything”). 80. See, e.g., New Hampshire Statesman, Jan. 31, 1868 (“Mr. Bingham has a high reputation as the most brilliant extemporaneous speaker in Congress, and he won fresh laurels to-day.”); “Affairs at the National Capital,” New York Times, Jan. 17, 1867, at 4 (“Mr. BINGHAM is one of the ablest debaters in Congress. He speaks with uninterrupted fluency and with great rapidity. His language is

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scholarly, his sentences polished, and his whole manner graceful and earnest even to enthusiasm. His voice is pleasant, though not very strong, and he speaks without notes and always with effect.”). 81. See, e.g., Cong. Globe, 34th Cong., 3rd Sess. 791, 959 (1857). 82. Cf. Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University Press, 1953), 5: 19 (“Mr. Bingham has not been much obliged by appointments; so I think the first Pay Master hereafter appointed in Ohio should be his man, named within.”). 83. The turkey story comes from “Judge Bingham: Gave Financier Cook His Start in a Turkey Deal,” Steubenville Herald-Star, Mar. 26, 1900, at 8. 84. See Beauregard, Bingham, 32; see also Jeffry D. Wert, Custer: The Controversial Life of George Armstrong Custer (New York: Simon and Schuster, 1996), 24 (describing Custer’s initial contact with Bingham). 85. See Beauregard, Bingham, 32–33; see also Wert, Custer, 24 (quoting Custer’s letter of May 1856 that said he was “desirous of going to West Point”). 86. D. A. Kinsley, Favor the Bold: Custer: The Civil War Years (New York: Holt, Rinehart, and Winston, 1967), 6. 87. See Charles B. Wallace, Custer’s Ohio Boyhood (Freeport, OH: Freeport Press, 1978), 21. 88. See ibid. at 22 (describing Custer’s recollection that he was “nicely treated” at Bingham’s home). 89. See Wert, Custer, 22–24 (telling the story of Custer’s relationship with Mollie Holland and her father’s scheme to get rid of him). 90. Letter from John A. Bingham to Jefferson Davis, Nov. 18, 1856 (National Archives). 91. L. Milton Ronshiem, The Life of General Custer (Cadiz, OH: Cadiz Republican, 1929), 5. Bingham later got to know Custer’s wife, who wrote that he was “a charming man” who was an exception “to the rule of debauched bureaucrats and blackleg politicians.” Beauregard, Bingham, 78. 92. See Beauregard, Bingham, 62–63; Wert, Custer, 39. 93. See Wert, Custer, 39–40. 94. Ibid. at 226; see also Beauregard, Bingham, 74 (discussing a conversation with Lincoln in 1863 during which Bingham said he should appoint “Captain Custer” as a brigadier general). 95. See letter from E. H. Custer to John A. Bingham, Jan. 2, 1879 (Morgan Library) (referring to Bingham’s condolence letter). 96. See Stampp, America in 1857, 146. 97. Donald, Sumner, 283; see Goodwin, Team of Rivals, 184 (describing Sumner’s speech). 98. See Cong. Globe, 34th Cong., 1st Sess. 1353–54, 1358 (1856). 99. See Donald, Sumner, 294–98; see also Shotwell, Driftwood, 193 (stating that Brooks “assaulted Sumner with a heavy gutta-percha cane . . . while sitting in his chair in the Senate chamber. He beat him so violently on the head, that the injuries inflicted almost caused Sumner’s death”).

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100. Cong. Globe, 34th Cong., 1st Sess. 1577 (1856) (statement of Rep. Bingham). 101. See ibid. at 1577–79; ibid. app. at 740 (statement of Rep. Foster); see also U.S. Const., art. I. § 5, cl. 2 (requiring a two-thirds vote for the House to expel a member); “Speech of Hon. John A. Bingham,” Anti-slavery Bugle, Aug. 2, 1856 (describing this as “a capital speech in favor of freedom of Debate”). 102. See Fehrenbacher, Dred Scott, 201. 103. See Cadiz Republican, July 2, 1856. 104. Letter from John A. Bingham to Justice John McLean, June 9, 1856 (Library of Congress). 105. See Goodwin, Team of Rivals, 186–87 (describing Frémont as “the celebrated explorer who had played a central role in the conquest of California during the Mexican War”); see also Carl B. Swisher, The Taney Court, 1836–1864: History of the Supreme Court of the United States (New York: Macmillan, 1974), 5: 46–49 (providing a biography of Justice McLean). 106. Letter from Joshua R. Giddings to George Julian, Jan. 18, 1863 (reminiscing about this confrontation) (Library of Congress). 107. See Foner, Free Soil, 130 (“Giddings played an influential role on the platform committee, and was highly pleased with the result.”); Graham, Everyman’s Constitution, 55 n.79 (quoting the platform’s statement that the people of Kansas were being “deprived of life, liberty and property without due process of law”). 108. See Foner, Free Soil, 130 (stating that “the large vote cast for Know-Nothing candidate Millard Fillmore in such key states as Pennsylvania, Indiana, and Illinois prevented Frémont from capturing these states”); see also Goodwin, Team of Rivals, 188 (“Fillmore ran as a member of the American Party [a more palatable title for old Know-Nothing Party] on a platform that denounced both Republicans and Democrats for agitating the slavery issue at the risk of national peace.”). 109. See Foner, Free Soil, 130; Riggs, “Case Study,” 194 (noting Frémont’s victory in Ohio); see also Goodwin, Team of Rivals, 188 (“In addition to his overwhelming strength in the South, Buchanan captured four Northern states—Illinois, Indiana, Pennsylvania, and New Jersey—the states destined to be the battleground in the 1860 election.”). 110. Letter from John A. Bingham to William Schuler, Nov. 14, 1856 (Massachusetts Historical Society). 111. Ibid. 112. See Beauregard, Bingham, 36; letter from Adolph Wood to John A. Bingham, Oct. 12, 1856 (Morgan Library). 113. Cadiz Democratic Sentinel, Sept. 24, 1856. 114. See Beauregard, Bingham, 36; Riggs, “Case Study,” 192. 115. See Beauregard, Bingham, 37. 116. See Franklin Pierce, Annual Message, Dec. 2, 1856, in Richardson, Messages, 7: 2931–40. 117. Ibid. at 2939.

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118. Ibid. at 2937. 119. Cong. Globe, 34th Cong., 3d Sess., app. at 135 (1857) (statement of Rep. Bingham); see ibid. app. at 135–36 (“[T]he brute force, by which the inherent rights of the black race had for centuries been cloven down, was not likely to be restrained from inflicting like cruelties and oppressions on the white race.”). 120. Ibid. app. at 135. 121. See ibid. app. at 136; see also U.S. Const., art. IV, § 3, cl. 2 (“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”). 122. 26 U.S. (1 Pet.) 511, 546 (1828). 123. See Cong. Globe, 34th Cong., 3d Sess. app. at 137 (1857) (statement of Rep. Bingham); see also U.S. Const., art. I, § 9, cl. 1 (permitting Congress to bar the foreign slave trade after 1808); cf. Cong. Globe, 35th Cong., 1st Sess., 402 (1858) (statement of Rep. Bingham) (“Can it be that this traffic, which, upon the seas, by the law of the Constitution, is piracy, worthy of death, and punishable with death, is upon land a right, a sacred right, sanctioned by the Constitution?”). 124. See Cong. Globe, 34th Cong., 3d Sess. app. at 137 (statement of Rep. Bingham). 125. Ibid. app. at 136. 126. Ibid. 127. See ibid. One flaw in this argument was that the Fugitive Slave Clause did not modify state with “now existing.” See U.S. Const., art. IV, § 2, cl. 3 (“No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”). 128. See Cong. Globe, 34th Cong., 3d Sess. app. at 136 (1857) (statement of Rep. Bingham). 129. Ibid. at 137. 130. See Northwest Ordinance of 1787; see also Matthew J. Hegreness, “An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities,” Yale Law Journal 120 (2011): 1820–84. I want to thank Matthew Hegreness for taking the time to talk to me about his Note. 131. Northwest Ordinance of 1787, art. I & art. II; see Cong. Globe, 34th Cong., 3d Sess. app. at 137 (1857) (statement of Rep. Bingham). 132. See Cong. Globe, 34th Cong., 3d Sess., app. at 137–38 (1857) (statement of Rep. Bingham); ibid. app. at 138 (citing the statute creating the Oregon Territory); Hegreness, “Organic Law,” 1845–54 (describing the incorporation of the Northwest Ordinance into the territorial enabling acts across the country). Bingham repeated this point in a subsequent discussion of the Louisiana Territory. See Cong. Globe, 35th Cong., 1st Sess. 1864 (1858) (statement of Rep. Bingham). 133. See Cong. Globe, 34th Cong., 3d Sess. app. at 138 (1857) (statement of Rep. Bingham).

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134. See Bank of Hamilton v. Dudley’s Lessee, 27 U.S. (2 Pet.) 492, 526 (1829) (“If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect.”); cf. Jones v. Van Zandt, 46 U.S. (5 How.) 215, 231–32 (1847) (stating that the Fugitive Slave Act of 1793, as applied in Ohio, did not violate the Northwest Ordinance). 135. See Strader v. Graham, 51 U.S. (10 How.) 82, 95 (1850). 136. See Cong. Globe, 34th Cong., 3d Sess. app. at 137 (1857) (statement of Rep. Bingham) (stating that the principles of the ordinance “were each and all incorporated in the Constitution . . . as it was amended by the action of the First Congress in 1789”). 137. See ibid. 138. Ibid. 139. See ibid. (referring to the “first ten articles of amendment to the Constitution [that] were reported to the several States for adoption; and were by the people of the States ratified and incorporated in the Constitution”); see also Cong. Globe, 37th Cong., 3d Sess. 265 (1863) (statement of Rep. Bingham) (repeating this argument in a more indirect manner). 140. Bingham’s architecture was also consistent with Barron v. Baltimore, which held that the Bill of Rights did not apply to a case from Maryland, one of the original thirteen states. See Graham, Everyman’s Constitution, 56 n.84; see also Livingston v. Moore, 32 U.S. (7 Pet.) 469, 551–52 (1833) (holding that the Ninth Amendment did not apply to a case originating from Pennsylvania). 141. See Cong. Globe, 34th Cong., 3d Sess. app. at 139 (1857) (statement of Rep. Bingham). 142. Ibid.; see ibid. app. at 139–40 (“Mere political or conventional rights are subject to the control of the majority; but the rights of human nature belong to each member of the State, and cannot be forfeited but by crime.”). 143. Ibid. app. at 140. 144. Ibid. 145. Letter from Joshua R. Giddings to Salmon P. Chase, Jan. 14, 1857 (Pennsylvania Historical Society); see also “Speech of Hon. John A. Bingham—Its Eloquence and Power—Extracts,” Ripley Bee, Feb. 7, 1857 (editorializing that “a more interesting speech, or one which more truly sets forth the living precepts of the Republican Party, we have not read”). 146. New York Daily Tribune, Jan. 16, 1857. 147. There was (and still is) considerable disagreement about the holding of Dred Scott that need not be discussed here. 148. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 400 (1857). Scott was also taken into Illinois, a free state, but that aspect of the lawsuit does not matter for purposes of this book.

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149. See ibid. at 403–27; Magliocca, Andrew Jackson, 102–06 (giving an overview of Taney’s analysis on the citizenship issue). 150. Dred Scott, 60 U.S. (19 How.) at 407. 151. Ibid. at 417. 152. See ibid. at 444. 153. See ibid. (stating that Canter “has no reference whatever to the power of Congress over rights of person or rights of property—but relates altogether to the power of establishing judicial tribunals to administer the laws constitutionally passed, and defining the jurisdiction they may exercise”). 154. See ibid. at 451. 155. See Foner, Free Soil, 97; see also Fehrenbacher, Dred Scott, 452 (“[T]here were now serious doubts about the capacity of state sovereignty to override the property rights of a slaveholder as set forth in Taney’s Dred Scott opinion.”). 156. See Cong. Globe, 34th Cong., 3d Sess. app. at 139 (1857) (statement of Rep. Bingham) (“If slaves were property under the Constitution, it would follow that they would continue property, wherever the owner might take them within the Union; and hence he might hold his slaves as property within Ohio, notwithstanding its constitutional prohibition.”). 157. See Dred Scott, 60 U.S. (19 How.) at 451 (“And if Congress itself cannot do this— if it is beyond the powers conferred on the Federal Government—it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.”); cf. Cong. Globe, 35th Cong., 1st Sess. 401 (1858) (statement of Rep. Bingham) (“If, therefore, men are property under the Constitution of the United States, and by virtue thereof held as property in the Territory of Kansas, it is in vain, and a mockery, to talk of the right of the people of that Territory to exclude Slavery therefrom”). 158. Letter from John A. Bingham to Justice McLean, Mar. 21, 1857 (Library of Congress). 159. Cong. Globe, 37th Cong., 2d Sess. 1793 (1862) (statement of Rep. Bingham). 160. See Beauregard, Bingham, xiv. 161. See, e.g., letter from John A. Bingham to his children, Dec. 18, 1858 (“I hope you will be good and try to learn from your books all you can. Be good children and be kind . . . especially to each other. My love to Mama and Aunt Emma. Good bye. Your Papa.”) (Bingham Papers). 162. See Adams v. Adams, 7 Ohio St. Rep. 83 (1857) (involving an estate dispute); Steubenville and Indiana R.R. Co. v. Patrick, 7 Ohio St. 170 (1857) (affirming a judgment that Bingham won against a railroad in a probate case). 163. See Beauregard, Bingham, 37; Riggs, “Case Study,” at 219–20; see also Niven, Chase, 200 (stating that Chase won by only 1,500 votes). 164. See Fehrenbacher, Dred Scott, 458–62; Stampp, America in 1857, 266–77; see also Goodwin, Team of Rivals, 196 (“Although an overwhelming majority of the settlers were opposed to slavery and wanted to join the Union as a free state, a

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rump group of proslavery forces met in Lecompton, drafted a proslavery constitution, and applied for statehood.”). 165. Goodwin, Team of Rivals, 196; see Fehrenbacher, Dred Scott, 463 (“In what may have been the most important single presidential decision of the 1850s, [Buchanan] resolved to support the Lecompton constitution.”); Stampp, America in 1857, 290 (stating that Douglas’s decision to oppose Lecompton “was a crucial turning point in his career and an event of major historical significance”). For Buchanan’s statement on Kansas, see James Buchanan, Special Message, Feb. 2, 1858, in Richardson, Messages, 7: 3002–12 [hereinafter Kansas Message]. 166. Cong. Globe, 35th Cong., 1st Sess. 399 (1858) (statement of Rep. Bingham). 167. Ibid. 168. Ibid.; see ibid. at 400 (“[N]othing can be clearer than that the Lecompton Constitution was not a legally constituted body; that the Legislature which enacted the statute by which the members of said Convention were elected, was itself an illegal body, fraudulently chosen”). 169. Ibid. at 400. 170. See ibid. at 402 (“[I]f the whole people of Kansas had solemnly ratified and adopted this instrument, at either of their recent elections, I affirm that it would still be our duty to reject it.”). 171. Ibid. 172. Ibid.; see ibid. (quoting the relevant passage in Dred Scott). The president lent support to this assertion when he said: “It has been solemnly adjudged by the highest judicial tribunal known to our laws that slavery exists in Kansas by virtue of the Constitution of the United States. Kansas is therefore at this moment as much a slave State as Georgia or South Carolina.” Kansas Message at 3010. 173. Cong. Globe, 35th Cong., 1st Sess. 402 (1858) (statement of Rep. Bingham). 174. Ibid. 175. See Salem Republican, Feb. 3, 1858 (“Had the North a few more Binghams in Congress, the President would never have dared to try to force the infamous Lecompton Constitution on the people of Kansas. He would have been strangled in his first attempt to perpetuate the outrage.”); see also Riggs, “Case Study,” 231–32 (summarizing the media reaction). 176. Cong. Globe, 35th Cong., 1st Sess. 440 (1858) (statement of Rep. Davis). 177. Ibid. 178. Ibid. at 446 (statement of Rep. Avery). 179. See ibid. at 476 (statement of Rep. Sherman). 180. See Stampp, America in 1857, 328–29; see also Beauregard, Bingham, 38 (noting Bingham and Giddings’s support for a “clean” referendum proposal); Riggs, “Case Study,” 236 (making the same point). One of the problems with the process used for the admission of Kansas was that the territory had fewer people than was typically needed for statehood, and hence the bill provided that a no vote on Lecompton would force Kansas to wait until it had more

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people before it could apply again. See Fehrenbacher, Dred Scott, 479; see also Stampp, America in 1857, 328 (“If the proposition were accepted, Kansas would be admitted at once; if it were rejected, Kansas would remain a territory until it had the population normally required for statehood, which at that time was about ninety thousand.”). Bingham’s receptiveness to a referendum on slavery was a tactic to defeat statehood. See letter from Joshua R. Giddings to Salmon P. Chase, May 10, 1858 (Pennsylvania Historical Society) (stating that Bingham was dissuaded from explaining this more clearly because it could divide the Republican opposition). 181. See Cong. Globe, 35th Cong., 1st Sess. 1865 (1858) (statement of Rep. Bingham); see also Fehrenbacher, Dred Scott, 479 (describing the passage of the English bill). 182. See Stampp, America in 1857, 329; see also Fehrenbacher, Dred Scott, 482 (stating that the Lecompton Constitution was rejected by a vote of 11,300 to 1,788). 183. See Cong. Globe, 35th Cong., 1st Sess. 1866 (1858) (statement of Rep. Bingham). 184. See ibid. (“The records of the courts in a thousand instances, bear witness to the fact that women and children, as well as men of full age, are citizens of the United States, and of the several States.”). 185. Ibid. 186. See Beauregard, Bingham, 42–43; Riggs, “Case Study,” 256–60; see also Cadiz Republican, June 2, 1858 (stating that Ephirim R. Eckley would seek Bingham’s seat). 187. See letter from B. Pritchard to John A. Bingham, July 3, 1858 (Morgan Library). 188. See letter from John A. Bingham to Salmon P. Chase, May 11, 1858 (Library of Congress). 189. Ibid. 190. Ibid. The initial suggestion for this approach to Chase came from Giddings. See Riggs, “Case Study,” 254. 191. See Cadiz Republican, Aug. 18, 1858 (reporting on the vote). 192. See Cadiz Republican, Nov. 10, 1858; see also Riggs, “Case Study,” 263–65 (describing the campaign); Cadiz Republican, Oct. 13, 1858 (reporting on a debate in Cadiz between Bingham and his Democratic opponent). 193. See, e.g., Fehrenbacher, Dred Scott, 528 (stating that Republicans won a plurality but were ten seats short of a majority). 194. See Cong. Globe, 35th Cong., 1st Sess. 2143 (1857) (statement of Rep. Bingham) (telling the House that Giddings was forced to return home due to his “indisposition”); see also Julian, Giddings, 338 (noting Giddings’s heart attack); ibid. at 353 (describing his defeat in 1858). 195. Cadiz Democratic Sentinel, Feb. 2, 1859. 196. Letter from John A. Bingham to Joshua R. Giddings, Mar. 4, 1859. 197. See Cong. Globe, 35th Cong., 2d Sess. 981–85 (1859) (statement of Rep. Bingham). 198. See ibid. at 1011.

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199. Amar, Bill of Rights, 182. 200. See Cong. Globe, 35th Cong., 2d Sess. 982 (1859) (statement of Rep. Bingham) (quoting an Oregon provision stating that each “white male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in the United States one year, and shall have resided in this State during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election . . . shall be entitled to vote at all elections authorized by law”). 201. See letter from John A. Bingham to Joshua A. Giddings, Feb. 3, 1857. Bingham was criticized by the New York Tribune for denying a free state admission, see New York Tribune, Feb. 3., 1857, and he responded with a letter to the editor defending his vote. See ibid. at Feb. 20, 1857; cf. Cong. Globe, 35th Cong., 1st Sess. 2328 (1858) (statement of Rep. Bingham) (reiterating this argument). 202. See Cong. Globe, 35th Cong., 2d Sess. 982–83 (1859) (statement of Rep. Bingham); see also U.S. Const., art. I, § 2, cl. 1 (describing the House of Representatives); Dred Scott, 60 U.S. (19 How.) at 404 (“The words ‘people of the United States,’ and ‘citizens,’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power to conduct the Government through their representatives.”). 203. Cong. Globe, 35th Cong., 2d Sess. 983 (1859) (statement of Rep. Bingham). Bingham noted that members of Congress were required to be citizens, which argued against a voting right for aliens. See ibid. Nonetheless, Bingham was quite insistent that states could not make distinctions between naturalized and native-born citizens. See letter from John A. Bingham to Salmon P. Chase, May 12, 1859 (Library of Congress) (expressing disapproval for proposals in Ohio to discriminate against foreign-born citizens). 204. See Cong. Globe, 35th Cong., 2d Sess. 985 (1859) (statement of Rep. Bingham). 205. Ibid. at 984. One of Bingham’s attacks on this provision was that it would be an ex post facto law, as the “time of the adoption of this constitution” was 1857 and in the meantime African Americans had moved to Oregon. See ibid.; see also U.S. Const., art. I, § 10, cl. 1 (barring states from enacting ex post facto laws). This criticism was not convincing. First, some of the restrictions involved civil penalties rather than the criminal ones that are covered by the Ex Post Facto Clause. Second, one could call illegal residence in a state (or aiding illegal residence) an ongoing wrong rather than a retroactive one. 206. Cong. Globe, 35th Cong., 2d Sess. 985 (1859) (statement of Rep. Bingham). 207. Ibid. 208. See U.S. Const., art. IV, § 2, cl. 1. 209. Cong. Globe, 35th Cong., 2d Sess. 984 (1859) (statement of Rep. Bingham). 210. Ibid. In the speech, Bingham offered some other justifications for his view that the states were “limited by the Constitution of the United States, in respect of

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the personal or political rights of citizens of the United States.” Ibid. at 982. First, when the House exercised its power to judge the election of its members, its determination could well be contrary to state law if the House thought that the federal Constitution required something else. See ibid. Second, he said that state judges were bound by the Supremacy Clause to enforce the federal Constitution against violations of fundamental rights. See ibid. at 983–84. Third, he reiterated his point that the Northwest Ordinance, as applied to the Oregon Territory and other states, imposed some of the restrictions of the Bill of Rights. See ibid. at 984 (“I say the veriest dolt cannot fail to see that this provision of the Oregon constitution is in direct conflict with, and violative of, the second article of that great ordinance.”). Finally, Bingham hoped that states might be persuaded by “public opinion[,] which, after all, is the strongest defender of the Constitution against such innovation, and of the rights of the people against such infringement.” Ibid. at 984. 211. See ibid. Bingham was being an advocate here. He was aware of an alternative view of Article Four, which was that the provision only secured “those constitutional rights and immunities which result exclusively from State Authority or State legislation.” Ibid. 212. See ibid. at 985 (“I cannot consent to mutilate and destroy that great instrument, the Constitution of my country, by supporting a bill which, on its face, gives effect to a State constitution which denies to citizens of the United States the right of a fair trial in the courts of justice for the enforcement of a right or the redress of a wrong.”); ibid. (“[N]o one should be deprived of life or liberty, but as punishment for crime; nor of his property, against his consent and without due compensation.”). 213. Ibid. at 982; see ibid. at 984 (stating that free African Americans were “entitled to all the privileges and immunities of citizens of the United States, amongst which are the rights to life and liberty and property, and their due protection in the enjoyment thereof by law”). 214. Ibid. at 984. 215. Ibid. at 984–85. 216. Ibid. at 985. In 1866, Bingham violated this pledge by voting for the insertion of the word “male” into Section Two of the Fourteenth Amendment. See U.S. Const., amend. XIV, § 2. 217. Cong. Globe, 35th Cong., 2d Sess. 985 (1859) (statement of Rep. Bingham). 218. Ibid.; see ibid. (“Allow me, sir, to disarm prejudice and silence the demagogue cry of ‘negro suffrage,’ and ‘negro political equality,’ by saying that no sane man ever seriously proposed political equality to all.”). 219. Ibid. 220. Ibid. 221. Ibid. (internal quotation marks omitted). 222. Cadiz Republican, Feb. 23, 1859 (quoting a report from the Ohio State Journal).

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Notes to Chapter 5 1. See Beauregard, Bingham, 64; “Sketch of John A. Bingham,” New Hampshire Statesman, Feb. 13, 1863 (“He is regarded as one of the ablest lawyers of the House, and in placing him in a conspicuous position upon the Judiciary Committee, the Speaker rendered only due homage to his acknowledged legal attainments.”). 2. See American Union, Mar. 23, 1859 (noting that Bingham was trying a case involving an estate dispute). 3. See Ex Parte Bushnell, 9 Ohio St. 77 (1859); Beauregard, Bingham, 44; Riggs, “Case Study,” 282–85. 4. See Riggs, “Case Study,” 284 (quoting the platform’s view that the act was “subversive of the rights of the States and the liberties of the people, contrary to the plainest dictates of humanity and justice, and abhorrent to the moral sense of the civilized world”). 5. David Herbert Donald, Lincoln (New York: Simon and Schuster, 1995), 232. 6. See Beauregard, Bingham, 44; see also Riggs, “Case Study,” 287–88 (describing Bingham’s participation in the campaign). 7. See Cadiz Republican, Nov. 9, 1859 (quoting an article in True American). 8. See letter from John A. Bingham to Salmon P. Chase, Nov. 3, 1859 (Library of Congress). 9. Letter from Salmon P. Chase to John A. Bingham, Nov. 4, 1859 (Bingham Papers). 10. See letter from John A. Bingham to Salmon P. Chase, Nov. 10, 1859 (Library of Congress); see also Niven, Chase, 212 (describing Chase’s election to the Senate). 11. See Beauregard, Bingham, 45; Riggs, “Case Study,” 290. The Binghams lived in a boardinghouse on Pennsylvania Avenue. See Riggs, “Case Study,” 290 (citing the Congressional Directory for the Thirty-Sixth Congress). It is not clear how long Amanda stayed, but we know that she was back in Cadiz by June. See letter from Amanda Bingham to John A. Bingham, June 12, 1860 (Morgan Library). 12. See Trefousse, Stevens, 96–99 (discussing Stevens’s election and return to Congress); ibid. at 98 (quoting Giddings’s view that Stevens was an “old politician with a capacity equal to any man in the nation”); see also Stewart, Impeached, 20 (discussing Stevens’s clubfoot). 13. See Goodwin, Team of Rivals, 226 (stating that Brown’s raid occurred on October 16, 1859); Riggs, “Case Study,” 291 (noting the proximity of the attack and the start of Congress); Cadiz Republican, Dec. 7, 1859 (noting that church bells in Cadiz rang out on the day of Brown’s execution). 14. See Fehrenbacher, Dred Scott, 528. 15. Cong. Globe, 36th Cong., 1st Sess. 436–37 (1860). Later in the session, Bingham and Smith clashed over the history of anti-slavery action in Virginia. See Cong. Globe, 36th Cong., 1st Sess. 1861–63 (1860); see also Philadelphia Enquirer, Apr. 24, 1860 (“Extra Billy Smith attacked John A. Bingham of Ohio, this morning on his statement regarding the efforts for the emancipation of slaves in the

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Virginia Constitutional Convention, and pronounced it a vile calumny. Mr. Bingham quoted the debates in the Virginia Convention, and substantiated his assertions, whereupon Extra Billy Smith withdrew into his shell.”). 16. New York Times, Jan. 16, 1860, at 1. The profile of Bingham quoted in the introduction said that he had brown eyes (not greenish ones). 17. See Fehrenbacher, Dred Scott, 528; Riggs, “Case Study,” 297–98. 18. See letter from John A. Bingham to Joshua R. Giddings, Jan. 19, 1860. 19. See James Buchanan, Annual Message, Dec. 19, 1859, in Richardson, Messages, 7: 3084–86; see also Cong. Globe, 36th Cong., 1st Sess. 2311 (1860) (statement of Rep. Bingham) (describing Buchanan as “the willing and supple instrument of the slave power”). 20. Cong. Globe, 36th Cong., 1st Sess. 1837 (1860) (statement of Rep. Bingham). 21. Ibid. 22. See ibid. (stating that the First Congress reenacted the Northwest Ordinance “declaring thereby that NO PERSON therein should ever be enslaved except for crime; or be deprived of life or liberty but by due process of law and the judgment of his peers; nor of his property, the product of his toil, without just compensation”); ibid. at 1837–38 (expounding on the growth of the Slave Power). 23. Ibid.; see ibid. (adding that the Court “had confessedly no jurisdiction” over the case). Bingham also tore into the president for recommending that the Spanish slavers who lost the famous Amistad case should be compensated. See ibid. at 1839–40; see also ibid. at 1840 (“How comes it, sir, that the President has so high a regard for the decision of the Supreme Court in the Dred Scott case, and so profound a contempt for its decision in the Amistad case? Is it because the Dred Scott case is a decision AGAINST LIBERTY AND LIFE, and the Amistad case a decision IN FAVOR OR LIBERTY AND LIFE?”); see also The Amistad, 40 U.S. (15 Pet.) 518 (1841) (holding that slaves transported by a Spanish vessel were not the property of the vessel owners). 24. Cong. Globe, 36th Cong., 1st Sess. 1837 (1860) (statement of Rep. Bingham); see also Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Richardson, Messages, 7: 3210 (“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”). 25. Cong. Globe, 36th Cong., 1st Sess. 2314 (1860) (statement of Rep. Bingham).

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26. See Fehrenbacher, Dred Scott, 533 (noting that the Democratic Convention began in Charleston on April 23, 1860); see also Cong. Globe, 36th Cong., 1st Sess. 1837 (1860) (statement of Rep. Bingham) (dating his speech as April 24). 27. See Donald, Lincoln, 247; Goodwin, Team of Rivals, 258–59. John Bell, a moderate ex-Whig from Tennessee, also ran as a Constitutional Union candidate. See Fehrenbacher, Dred Scott, 536. 28. See letter from John A. Bingham to Salmon P. Chase, May 10, 1860 (Library of Congress). 29. See Niven, Chase, 220; see also Goodwin, Team of Rivals, 248 (stating that twelve of Ohio’s forty-six votes went to Lincoln and Justice McLean). 30. Letter from John A. Bingham to Salmon P. Chase, June 2, 1860 (Library of Congress). 31. Cong. Globe, 36th Cong., 1st Sess. 2314 (1860) (statement of Rep. Bingham). 32. Ibid. at 2310. 33. Ibid. at 2314. 34. Ibid. 35. Ibid. at 2315. 36. See, e.g., Cadiz Republican, Sept. 12, 1860; Ashtabula Sentinel, Oct. 10, 1860; see also Cadiz Republican, Nov. 7, 1860 (describing a speech Bingham gave at a rally in Philadelphia). 37. See Cadiz Republican, June 6, 1860 (discussing a speech by Ephraim Eckley to a local Republican group about his candidacy). Eckley was the same man who challenged Bingham in 1858, though there were other challengers in 1860. See Cadiz Republican, July 11, 1860. 38. See Salem Republican, June 27, 1860. 39. Cadiz Republican, July 11, 1860. 40. Ibid. at Aug. 22, 1860. 41. See Beauregard, Bingham, 53; Riggs, “Case Study,” 322 n.81. Bingham’s opponent in the general election, George Wells, ran on the Constitutional Union line. See Beauregard, Bingham, 53; Riggs, “Case Study,” 320. 42. Letter from John A. Bingham to Salmon P. Chase, Nov. 7, 1860 (Library of Congress). The rest of the quotes in this paragraph come from this letter. 43. See Cadiz Republican, Nov. 27, 1860; see also Donald, Lincoln, 257 (stating that the South Carolina legislature had authorized a secessionist convention on November 10 and that Georgia followed suit eight days later). 44. See Beauregard, Bingham, 53–54; Riggs, “Case Study,” 323–24. 45. Cong. Globe, 36th Cong., 2d Sess. 78 (1860). Bingham also introduced legislation to give the president authority to use the militia to collect customs duties if federal officials faced resistance from states. See Cong. Globe, 36th Cong, 2d Sess. 219 (1860); Beauregard, Bingham, 54; see also Riggs, “Case Study,” 335 n.95 (quoting a letter from a Virginia Unionist who stated that “Bingham, of Ohio, and his force bill has done us more injury than an invading army”).

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46. Letter from John A. Bingham to Joshua R. Giddings, Jan. 14, 1861. The quotes in the rest of this paragraph come from this letter. 47. Cong. Globe, 36th Cong., 2d Sess. app. at 81 (1861) (statement of Rep. Bingham); see Cincinnati Daily Commercial, Jan. 28, 1861 (stating that Bingham committed this speech to memory); see also letter from John A. Bingham to Joshua R. Giddings, Jan. 25, 1861 (stating that this speech was directed “against all the compromises now pending which betray the Constitution, the rights of the People and the sacred cause of human Liberty in the world”); cf. letter from John A. Bingham to Joshua Giddings, Jan. 29, 1861 (attacking Charles Francis Adams for supporting a settlement and stating: “I said to him he was near right as he could be to be wrong.”) 48. Cong. Globe, 36th Cong., 2d Sess. app. at 80 (1861) (statement of Rep. Bingham). 49. Ibid. app. at 80. 50. Ibid. app. at 81. 51. Ibid. app. at 81. Bingham made several arguments against the constitutionality of secession, citing the Supremacy Clause and the restrictions on state authority contained in Article One, Section Ten. See ibid. app. at 81–82. 52. Cong. Globe, 36th Cong., 2d Sess. app. at 82 (1861) (statement of Rep. Bingham). 53. Ibid. The rest of the quotes in this paragraph come from this page of his speech. 54. The other elements of the proposed compromise included admitting New Mexico as a slave state and strengthening the Fugitive Slave Act. See ibid. app. at 82–83. 55. See ibid. app. at 82; see also J. Res. 13, 36th Cong., 2d Sess., 12 Stat. 251 (1861) (“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”). 56. Cong. Globe, 36th Cong., 2d Sess. app. at 82–83 (1861) (statement of Rep. Bingham). In this speech, Bingham referred to the Declaration of Independence as “that immortal bill of rights.” Ibid. app. at 83. This could be taken as evidence that when he talked later about the “bill of rights” he did not mean the first eight or ten amendments to the Constitution, but this is unlikely given the context of those statements. 57. Ibid. app. at 83; see Emancipation Proclamation, 12 Stat. 1268 (1863) (freeing slaves in the unoccupied Confederate States); Donald, Lincoln, 375–76 (describing the cabinet’s discussion of the text). 58. Cong. Globe, 36th Cong., 2d Sess. app. at 84 (1861) (statement of Rep. Bingham). This last comment could be read as an endorsement of John Brown, but there is nothing else in the record to indicate that Bingham supported violent resistance to slavery. 59. New York Times, Jan. 18, 1861. 60. Daily Cleveland Herald, Jan. 24, 1861.

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61. See Candice Millard, Destiny of the Republic: A Tale of Madness, Medicine and the Murder of a President (New York: Doubleday, 2011), 34. 62. Letter from George G. Baker to John Sherman, Jan. 25, 1861 (Library of Congress). 63. Cincinnati Commercial, Jan. 25, 1861; see Cadiz Democratic Sentinel, Jan. 30, 1861 (charging that the reporter supported Sherman); Beauregard, Bingham, 58 (providing more background). 64. See Cadiz Republican, Mar. 22, 1861. 65. Letter from John A. Bingham to Joshua R. Giddings, Feb. 1, 1861. 66. Letter from John A. Bingham to Joshua R. Giddings, Jan. 25, 1861. The reaction to Bingham’s speech on secession was somewhat muted, so perhaps his real complaint was that he was ignored. See Riggs, “Case Study,” 336; see also New York Tribune, Feb. 1, 1861 (reprinting part of the speech); Cincinnati Commercial, Jan. 23, 1861 (describing the speech as a “damned abolition harangue”). 67. Letter from John A. Bingham to Simon Gratz, Jan. 31, 1861 (Pennsylvania Historical Society). The rest of the paragraph contains quotes from this letter. 68. The one record that we have of Bingham’s tribute to Lincoln is “Personal Recollections of Abraham Lincoln,” in The Military Order of the Loyal Legion of the United States: A Report of Remarks by Commander Major-General J. D. Cox and Remarks by Major John A. Bingham, Judge M. L. Buchwalter, Colonel H. C. Warmoth, and Captain J. B. Foraker at the Twelfth Annual Dinner of the Commandery of Ohio, Cincinnati, May 1, 1895 (Cincinnati: Headquarters Commandery of the State of Ohio, 1895) [hereinafter Recollections]. 69. Lincoln and Stanton at 1. 70. See, e.g., Basler, Works of Abraham Lincoln, 405 (“The little short act on page 804 of the large new volume was shown to me by Mr. Bingham of Ohio, as being the one, in connection with the other laws therein referred to, which works the result.”). 71. Recollections at 9 (“Seated very near to Mr. Lincoln on the east porch of the capitol, I listened with intense interest to his inaugural address on that memorable occasion, the 4th of March, 1861.”). 72. See Goodwin, Team of Rivals, 326; Joseph Blocher, “Amending the Exceptions Clause,” Minnesota Law Review 92 (2008): 1028. 73. Abraham Lincoln, First Inaugural, in Richardson, Messages, 7: 3211–12. 74. See Recollections at 11. 75. Ibid. at 14; see ibid. at 12 (describing another meeting between Bingham and Lincoln in April about the Sumter crisis). 76. See Beauregard, Bingham, 59; see also Recollections at 6–7 (placing Bingham in Washington right before the attack). 77. S. B. MacGavran, A Brief History of Harrison County, Ohio (Cadiz, OH: Harrison Tribune, 1894), 30. 78. Cadiz Republican, Apr. 24, 1861. 79. See Beauregard, Bingham, at xv.

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80. See Donald, Lincoln, 301; Goodwin, Team of Rivals, 366. 81. See Beauregard, Bingham, 64. 82. Ibid. Hickman was referred to as the House Judiciary Committee chairman during the Thirty-Seventh Congress. 83. See Cong. Globe, 37th Cong., 1st Sess. 145–46 (1861); Beauregard, Bingham, 62; see also Goodwin, Team of Rivals, 348 (noting Lincoln’s call for volunteers). 84. See Cong. Globe, 37th Cong., 1st Sess. 117 (1861) (statement of Rep. Bingham); see also Donald, Lincoln, 299 (describing Lincoln’s suspension of the writ between Washington and Philadelphia); see also Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (Taney, C.J., riding circuit) (holding that the president lacked the authority to suspend the writ). Bingham later explained that an act of Congress authorizing Lincoln’s decision could be viewed as declaratory of the president’s power to act unilaterally or as a retroactive decision by Congress to suspend the writ. See Cong. Globe, 37th Cong., 2d Sess. 3184 (1862) (statement of Rep. Bingham). 85. Cong. Globe, 37th Cong., 1st Sess. 411 (1861) (statement of Rep. Bingham); see ibid. at 409–13 (setting forth a debate on confiscation); ibid. at 430–31 (providing another snippet of the debate). 86. Ibid. at 302 (statement of Rep. Bingham). 87. Ibid.; see ibid. at 302–04 (setting forth Bingham’s views on the constitutional and policy implications of taxes in greater detail). 88. See Beauregard, Bingham, 63–64; letter from John A. Bingham to Joshua Giddings, Aug. 27, 1861 (describing these developments). 89. See Beauregard, Bingham, 64; Cincinnati Commercial, Sept. 7, 1861; see also letter from John A. Bingham to Joshua Giddings, Aug. 27, 1861 (“[W]e might sweep the State now.”). 90. See Beauregard, Bingham, 64; Cincinnati Commercial, Sept. 7, 1861. 91. Cong. Globe, 37th Cong., 2d Sess. 45 (1861) (statement of Rep. Bingham); ibid. (recording the vote to table). 92. See letter from John A. Bingham to Joshua Giddings, Dec. 19, 1861. 93. Ibid. 94. See Trefousse, Stevens, 106; see also Donald, Lincoln, 325–26 (discussing the rupture between Lincoln and Cameron). 95. See Goodwin, Team of Rivals, 411–12; Thomas and Hyman, Stanton, 135. 96. See Goodwin, Team of Rivals, 297; Thomas and Hyman, Stanton, 90–91. 97. See Donald, Lincoln, 186 (stating that Stanton had described Lincoln as “that damned long armed Ape”); Goodwin, Team of Rivals, 174–75 (giving an account of their relationship at a trial in Cincinnati). 98. See Lincoln and Stanton at 2 (stating that Bingham told the president that “I consider him eminently qualified for the position of Sec. of War, and doubt whether you could obtain a man better fitted for the place”); see also Thomas and Hyman, Stanton, 136 (confirming that this meeting took place). A few months later, Bingham was back at the White House to tell the president that he

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should order General George McClellan to attack the Confederates in Virginia. See Lincoln and Stanton at 4–5. 99. Ibid. at 3. It is not clear when Bingham and Stanton renewed their friendship. Bingham said that they were communicating in 1861, see Recollections at 9, but it is possible that they saw each other in Washington before that. 100. There is not much evidence on the relationship between Bingham and Stanton during the war, except for a reference to a conversation they had about General McClellan’s inaction in 1862 and another talk in Stanton’s office about the Battle of Fredericksburg. See Lincoln and Stanton, at 4, 11–12. 101. See Cong. Globe, 37th Cong., 2d Sess. 345–49 (1862) (statement of Rep. Bingham). 102. Ibid. at 346; see Cong. Globe, 39th Cong., 1st Sess. 1292 (1866) (statement of Rep. Bingham) (“[I]n time of war, whether it be civil or foreign war, the public safety becomes the highest law; and tribunals of States and institutions of States . . . go by the board for the time being.” [internal quotation marks omitted]). 103. See Cong. Globe, 37th Cong., 2d Sess. 346 (1862) (statement of Rep. Bingham). Bingham cited the Third Amendment to support his claim, because that text barred the quartering of soldiers in homes but permitted that action in wartime. See ibid. at 348; see also U.S. Const., amend. III (“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in manner to be prescribed by law.”). 104. Cong. Globe, 37th Cong., 2d Sess. 345–49 (1862) (statement of Rep. Bingham). The phrase “law of the land” comes from the Magna Carta, and due process of law was meant to convey the same concept. See ibid. at 1638 (statement of Rep. Bingham); see also Cong. Globe, 42nd Cong., 2d Sess. 2394 (1872) (statement of Rep. Bingham) (stating that “the phrase ‘due process of law’ means the law of the land”). But in this passage Bingham drew a distinction between the two phrases to say that the former meant that federal action required only positive law while the latter required that the act also comport with notions of fundamental fairness. 105. Cong. Globe, 37th Cong., 2d Sess. 346–47 (1862) (statement of Rep. Bingham). In this section of the speech Bingham relied on M’Culloch. See ibid. 106. Ibid. at 347. 107. See Niven, Chase, 298; see also Shotwell, Driftwood, 197–98 (summarizing Bingham’s argument in favor of these greenbacks). 108. Niven, Chase, 298 (quoting a letter from Salmon P. Chase to John A. Bingham dated Feb. 6, 1862). Ironically, when a challenge to these greenbacks reached the Supreme Court, Chase (who was then chief justice) wrote an opinion declaring them unconstitutional in part. See Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1870). This decision was later overruled. See Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871); see also Juilliard v. Greenman, 110 U.S. 421 (1884) (declaring the issue a political question that courts could not review).

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109. Cong. Globe, 37th Cong., 2d Sess. 637 (1862) (statement of Rep. Bingham); see ibid. (“I repeat it, sir, that there is not a line, a word, or syllable in the Constitution which makes anything a legal tender—gold, silver, or anything else.”). 110. See Springer v. United States, 102 U.S. 586 (1880) (upholding the income tax imposed during the war). 111. See Cong. Globe, 37th Cong., 2d Sess. 1151 (1862) (statement of Rep. Bingham) (stating that he did not “advocate any proposition for universal emancipation, or for any emancipation of the slaves of loyal citizens with or without compensation”). 112. See ibid. at 1638–40. The bill provided compensation to the masters of these slaves, which Bingham obviously disliked. See ibid. at 1638 (statement of Rep. Bingham) (stating that the bill “makes an appropriation of $1,000,000 for ransom money”). 113. Ibid. at 1638. Bingham repeated his antebellum view that “[t]hose born within the Republic, whether black or white, are citizens by birth—natural-born citizens. There is no such word as white in your Constitution.” Ibid. at 1639. The only exception was for Native American tribes that retained their sovereignty within the territory of the United States. See ibid. 114. Ibid. at 1640. Bingham also reiterated his position that abolition did not mean that African American men would vote because “[t]he right to vote does not involve the right to citizenship.” Ibid. at 1640. 115. Ibid. 116. Ibid. 117. See Beauregard, Bingham, 67–68. A review of the Congressional Globe confirms these votes. 118. See Cong Globe, 37th Cong., 2d Sess. 2277 (1862) (statement of Manager Bingham); see also ibid. at 2942–53 (providing some of Bingham’s questioning and the Senate’s unanimous verdict); Stewart, Impeached, 80 (describing the case). 119. See Recollections at 14; see also Lincoln and Stanton at 17 (“I didn’t trouble Mr. Lincoln much about appointments, but I was compelled often times to go to him when the soldiers were in distress and wanted furloughs and many other things that required the President’s signature. He never refused me a single time.”). 120. Recollections at 15. 121. Ibid. at 11. 122. Ibid. 123. Ibid. at 17. 124. See Beauregard, Bingham, 78. 125. Shotwell, Driftwood, 201. 126. See Beauregard, Bingham, 69; see also Cadiz Republican, Dec. 3, 1862 (making this point in a doggerel that said “And what would be the consequence, should the soldiers all come back, But that I have to yield to Bingham the inside of the track.”). 127. Crisis, June 18, 1862.

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128. See Beauregard, Bingham, 69–70 (stating that White received 12,299 votes to Bingham’s 9,999); Goodwin, Team of Rivals, 485 (“Though Republicans retained a slight majority in Congress, the so-called ‘Peace Democrats,’ who favored a compromise that would tolerate slavery, gained critical offices in Illinois, New York, Pennsylvania, Ohio, and Indiana.”) 129. See letter from John A. Bingham to Joshua R. Giddings, Nov. 3, 1862. 130. Bryan H. Wildenthal, who has written extensively about the Bill of Rights, was one of the first scholars to point out that Bingham’s races were tight during his second stint in Congress. See Bryan H. Wildenthal, “Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–1867,” Ohio State Law Journal 68 (2007): 1535. 131. Cong. Globe, 40th Cong., 2d Sess. 2211 (1868) (statement of Rep. Bingham). 132. See Cong. Globe, 37th Cong., 3d Sess. 1107 (1863); see also ibid. at 1229 (statement of Rep. Bingham) (“A man talking about his right of freedom from personal restraint when the State is invaded and public safety requires that the privilege of the writ of habeas corpus should be suspended, is about as silly as the man who prates about the inviolability of his house as his castle, when the only safety for the city is to blow it up.”); see generally Amanda L. Tyler, “Suspension as an Emergency Power,” Yale Law Journal 118 (2009): 600–694 (reviewing the history of the Suspension Clause). 133. U.S. Const., art. IV, § 3, cl. 1; see Shotwell, Driftwood, 198–200; see also Vasan Kesavan and Michael Stokes Paulsen, “Is West Virginia Constitutional?,” California Law Review 90 (2002): 291–400 (providing a comprehensive discussion of this question). 134. Cong. Globe, 37th Cong., 3d Sess. 57 (1863) (statement of Rep. Bingham); see ibid. at 55–59 (providing Bingham’s full speech on the admission of West Virginia). 135. See Shotwell, Driftwood, 200; see also Beauregard, Bingham, 73 (pointing out that Bingham’s friend Andrew Ross was influential in West Virginia politics). 136. See Donald, Lincoln, 416–17; Goodwin, Team of Rivals, 503. 137. Cong. Globe, 37th Cong., 3d Sess. 265 (1863) (statement of Rep. Cox); see Beauregard, Bingham, 71. 138. Cong. Globe, 37th Cong., 3d Sess. 265 (1863) (statement of Rep. Bingham); see ibid. at 263–68 (containing Bingham’s dialogue with Cox and other members about proposals to end the war). 139. Ibid. at app. 55 (statement of Rep. Vallandigham). 140. Ibid. at app. 57. 141. Ibid. at 314–17 (statement of Rep. Bingham). Vallandigham and Bingham were not friends, partly because Bingham led the effort to contest Vallandigham’s election to the House. See Cong. Globe, 35th Cong., 1st Sess. 2327–29 (1858) (statement of Rep. Bingham). 142. Cong. Globe, 37th Cong., 3d Sess. 314 (1863) (statement of Rep. Bingham). 143. Ibid. at 315. 144. Ibid.

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145. “Sketch of John A. Bingham,” see Cincinnati Enquirer, Feb. 16, 1863 (noting the applause after the speech). 146. Cong. Globe, 37th Cong., 3d Sess. 1228 (1863) (statement of Rep. Bingham); see Beauregard, Bingham, 72. This is the only instance where Bingham spelled out a fundamental substantive right that belonged to resident aliens. 147. Cong. Globe, 37th Cong., 3d Sess. 1229 (1863) (statement of Rep. Bingham). Vallandigham left Congress and was later convicted by a military commission for seditious speech. See Ex Parte Vallandigham, 68 U.S. (1 Wall.) 243 (1864) (refusing to grant a writ of habeas corpus). 148. See Beauregard, Bingham, 74–75; letter from John A. Bingham to Senator Benjamin F. Wade, Mar. 9, 1863 (Library of Congress) (stating that he preferred this job because it paid a good salary and was more in line with his experience). 149. See Cincinnati Gazette, Mar. 7, 1863 (reporting that Bingham would “probably” get the District of Columbia position). 150. See letter from John A. Bingham to Salmon P. Chase, Apr. 29, 1863 (Library of Congress). 151. Ibid. 152. See Basler, Collected Works, 6: 245 (quoting a letter from the president to the attorney general, dated June 3, 1863, stating that “[i]t has been suggested to me, and readily adopted by, to tender the Judgeship of Florida, to Hon. John A. Bingham of Ohio. Please send me a commission for him.”). 153. Ibid. at 363 (quoting a telegram dated August 4, 1863, from Lincoln to Bingham). 154. Letter from John A. Bingham to Salmon P. Chase, June 8, 1863 (Library of Congress). 155. See Basler, Collected Works, at 6: 363 n.1 (quoting a letter dated August 5, 1863, from Bingham to the president). 156. While Bingham was still in Congress, he entertained the idea of challenging Senator Wade. See letter from John A. Bingham to Joshua R. Giddings, Nov. 3, 1862 (“[I]f he cannot be elected & if his friends by uniting on me can elect me they may over Todd or any Conservative pro-slavery—Republican.”). He never followed through, though, and Wade was reelected. 157. Ashtabula Sentinel, Jan. 28, 1863. 158. See Beauregard, Bingham, 75–76; Cincinnati Gazette, Mar. 18, 1863 (describing an event in Washington that expressed support for Bingham). 159. See Ashtabula Sentinel, June 24, 1863; see also Beauregard, Bingham, 76 (noting that he lost the Court nomination to Hocking H. Hunter by a vote of 403 to 137). 160. George W. Julian, Political Recollections: 1840–1872 (Chicago: Jansen, McClurg, 1884), 234; see letter from John A. Bingham to Joshua R. Giddings, Nov. 10, 1863. 161. Letter from John A. Bingham to Joshua R. Giddings, Nov. 10, 1863; see Agreement to Dissolve Law Partnership between Bingham and Lewis Lewton, Dec. 29, 1863 (Bingham Papers). 162. Letter from John A. Bingham to Salmon P. Chase, Sept. 23, 1863 (Library of Congress).

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163. Ibid. 164. See Beauregard, Bingham, 77; Lincoln and Stanton at 9; see also Capt. S. V. Benet, A Treatise on Military Law and the Practice of Courts-Martial (New York: D. Van Nostrand, 1864), 192–204 (describing the role of a judge advocate). 165. See John A. Bingham, Reply of the Judge Advocate John A. Bingham to the Defence of the Accused before a General Court Martial for the Trial of Brigadier General William A. Hammond (Washington, DC: Government Printing Office, 1864), 2–3 (outlining the charges against Hammonds, which included the purchase of inferior blankets, medicine, and beef in a kickback scheme) [hereinafter Court Martial]. 166. Lincoln and Stanton at 9. 167. Ibid. 168. Letter from John A. Bingham to Amanda Bingham, June 14, 1864 (Morgan Library). 169. See Court Martial; William A. Hammond, A Statement of the Causes Which Led to the Dismissal of Surgeon-General William A. Hammond from the Army; with a Review of the Evidence Adduced before the Court (New York: self-published, 1864). 170. See Thomas and Hyman, Stanton, 367; see also Donald, Lincoln, 529–30 (describing McClellan’s nomination). 171. See Thomas and Hyman, Stanton, 367. 172. See Beauregard, Bingham, 78 173. Ibid. 174. See Donald, Lincoln, 479–80; Goodwin, Team of Rivals, 603–9. 175. See Beauregard, Bingham, 78. 176. See Cincinnati Daily Gazette, May 26, 1864. Bingham did not attend the Union Party National Convention that chose Lincoln. 177. See letter from W. D. Bickham to Salmon P. Chase, May 29, 1864 (Library of Congress); see also Cincinnati Daily Commercial, May 27, 1864 (describing the meeting). 178. See Lincoln and Stanton at 5–6 (stating that Lincoln asked Bingham to verify Chase’s signature on his resignation letter); see Goodwin, Team of Rivals, 679–80 (describing the president’s deliberations before he picked Chase). 179. See Basler, Collected Works, 7: 472 (quoting a letter dated July 30, 1864, from Lincoln to Bingham); ibid. (quoting a letter dated August 23, 1864, from Bingham to Lincoln). In January 1865, Bingham did accept Lincoln’s offer and served as solicitor for a few months. See Beauregard, Bingham, 79. 180. See Donald, Lincoln, 517–18 (stating that Grant took a long time to divert troops from the siege of Petersburg because he was slow to recognize the threat to Washington); Goodwin, Team of Rivals, 641–44 (recounting Early’s offensive). 181. See Recollections at 16. 182. Ibid. 183. Ibid.

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184. See Goodwin, Team of Rivals, 654; see also Beauregard, Bingham, 79 (noting the state statute). 185. See Beauregard, Bingham, 79 (recording the total as 10,872 for White and 10,580 for Bingham); Cincinnati Daily Gazette, Oct. 13, 1864 (reporting the results of the civilian vote). 186. See Beauregard, Bingham, 79 (tabulating the military vote at 1,797 for Bingham and 247 for White); Cadiz Republican, Nov. 26 1864 (reporting the final results). 187. See Goodwin, Team of Rivals, 665–66 (stating that Lincoln beat McClellan by 212 to 21 in the Electoral College); see also Donald, Lincoln, 544 (describing the Republican victory). 188. See Goodwin, Team of Rivals, 686–89; see also U.S. Const., amend. XIII (“Section 1: Neither slavery not involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2: Congress shall have power to enforce this article by appropriate legislation.”). 189. Abraham Lincoln, Inaugural Address (Mar. 4, 1865), in Richardson, Messages, 8: 3478.

Notes to Chapter 6 1. Lincoln, Second Inaugural Address, 3478. 2. Lincoln and Stanton at 10. 3. See Donald, Lincoln, 588 (noting that Booth was also in the Rotunda as Lincoln passed by); James L. Swanson, Manhunt: The 12-Day Chase for Lincoln’s Killer (New York: HarperCollins, 2006), 26 (explaining that Booth attended the inauguration with his fiancée). There is a photograph of the Inauguration where Booth is visible. 4. See Beauregard, Bingham, 81; Shotwell, Driftwood, 201. 5. See Michael W. Kauffman, American Brutus: John Wilkes Booth and the Lincoln Conspiracies (New York: Random House, 2004), 133–34; Swanson, Manhunt, 23–24. 6. See Elizabeth Leonard, Lincoln’s Avengers: Justice, Revenge, and Reunion after the Civil War (New York: W. W. Norton, 2004), 50; see also Kaufmann, Brutus, 133 (recounting a meeting of the three men at a Baltimore hotel). 7. See Kaufmann, Brutus, 134; Leonard, Avengers, 50. O’Laughlen’s name was often misspelled in the official record as O’Laughlin. 8. See Kaufmann, Brutus, 179; see also Leonard, Avengers, 51–52 (describing the meeting of all seven conspirators at a restaurant in Washington). 9. See Swanson, Manhunt, 25; see also Kaufmann, Brutus, 154–55, 160–62, 164–65 (providing background on these men). 10. See Kaufmann, Brutus, 184–85; Swanson, Manhunt, 25–26. 11. See Kaufmann, Brutus, 201; Swanson, Manhunt, 27; see also Leonard, Avengers, 235 (describing John Surratt’s arrest in Egypt).

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12. See Swanson, Manhunt, 27–28; see also Kaufmann, Brutus, 198–99, 213–14 (noting Arnold’s and O’Laughlen’s efforts to break with Booth). 13. See Goodwin, Team of Rivals, 728; Kaufmann, Brutus, 209–10. 14. Goodwin, Team of Rivals, 728. 15. See Kaufmann, Brutus, 214–15; Swanson, Manhunt, 28–30. 16. See Goodwin, Team of Rivals, 738; Swanson, Manhunt, 78–79. 17. See Goodwin, Team of Rivals, 736–37; Leonard, Avengers, 5–6. 18. James L. Swanson’s book Manhunt provides a gripping account of Booth’s attempt to escape justice and his death in a Virginia barn. 19. See Edward Steers Jr., The Trial: The Assassination of President Lincoln and the Trial of the Conspirators (Lexington: University Press of Kentucky, 2003), 19–20. 20. See Swanson, Manhunt, 127–32; see also Leonard, Avengers, 60–62 (discussing Mudd’s initial interrogation). 21. See Swanson, Manhunt, 156–58; see also Kaufmann, Brutus, 244 (discussing how Booth convinced Mudd not to give him away). 22. See Leonard, Avengers, 42–45; Swanson, Manhunt, 19. It was unfortunate that when Robert Redford directed The Conspirator, a movie about the trial that focused on Mary Surratt, he decided to omit Bingham and make Joseph Holt the only lawyer for the government. See The Conspirator (Lionsgate, 2011); see also Steers, The Trial, 351–402 (reprinting Bingham’s summation) [hereinafter Bingham Closing Argument]. 23. See Wheeling Intelligencer, Apr. 28, 1865; see also Beauregard, Bingham, 81 (describing the meeting at a local church). 24. See Beauregard, Bingham, 84; Leonard, Avengers, 100; see generally Elizabeth D. Leonard, Lincoln’s Forgotten Ally: Judge Advocate General Joseph Holt (Chapel Hill: University of North Carolina Press, 2011) (describing Holt’s career). 25. See Kaufmann, Brutus, 324. 26. See Bingham Closing Argument at 373–82 (arguing that Booth was working with Confederate agents). For a dissection of the flawed testimony (from a con man) that was presented by Judge Advocate General Holt alleging that the Confederate government was behind the assassination, see John Fabian Witt, Lincoln’s Code: The Laws of War in American History (New York: Free Press, 2012), 295. 27. See Steers, The Trial, 17 (containing Johnson’s order that the alleged plotters were “subject to the jurisdiction of, and lawfully triable before, a Military Commission”). 28. See ibid. (quoting an order of May 6, 1865); see also Beauregard, Bingham, 88 (noting Wallace’s authorship of the novel); Lew Wallace, Ben Hur: A Tale of the Christ (New York: Harper and Brothers, 1880). 29. See Kaufmann, Brutus, 324; Steers, The Trial, 17; see also Leonard, Holt, 129 (stating that Holt served as the war secretary during the last two months of Buchanan’s administration).

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30. See Steers, The Trial, 18 (quoting the transcript of the commission’s proceedings for May 9, 1865); Leonard, Holt, 205 (describing Burnett’s experience). 31. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that a citizen who was an alleged enemy combatant could not be detained indefinitely without trial but could be tried by a military commission). 32. See Steers, The Trial, 403–9 (reprinting the attorney general’s opinion); see also “Legality of the Conspiracy Trial: Opinion of Attorney-General Speed,” New York Times, Aug. 13, 1865, at 3. Military commissions were used in the South where the civil justice system was not functioning, but their use in the North was hotly contested. See Witt, Lincoln’s Code, 264–73 (describing the operation of these commissions). 33. Indeed, Bingham suggested that the officers on the tribunal would be guilty of insubordination if they refused to follow the commander in chief ’s order. See Bingham Closing Argument at 353. 34. Howard K. Beale, ed., The Diary of Edward Bates (Washington, DC: Government Printing Office, 1933), 483; see Witt, Lincoln’s Code, 290 (observing that Attorney General Speed erred when he suggested to the president that it would be impermissible for a civil court to try the defendants). 35. See Steers, The Trial, 251–62 (reproducing Johnson’s argument) [hereinafter Johnson Argument]; see also Leonard, Holt, 209 (noting the senator’s background). The defendants unsuccessfully challenged the commission’s authority at the outset. See Steers, The Trial, 22–23. Johnson’s argument and Bingham’s reply were filed at the end of the trial, in an effort to change the commission’s mind. Compare Johnson Argument at 251 (“[T]he question of jurisdiction has not been discussed. The pleas which specially present it, as soon as filed, were overruled. But that will not, because properly it should not, prevent your considering it with the deliberation that its grave nature demands.”), with Bingham Closing Argument at 352 (“As the court has already overruled the plea to the jurisdiction, it would be passed over in silence by me but for the fact, that a grave and elaborate argument has been made by counsel for the accused, not only to show the want of jurisdiction, but to arraign the President of the United States before the country and the world as a usurper of power over the lives and the liberties of the prisoners.”). 36. See Fehrenbacher, Dred Scott, 282. 37. See Johnson Argument at 252 (“Citizens not belonging to the army or navy were not made liable to military law, or under any circumstances to be deprived of any of the guaranties of personal liberty provided by the Constitution.”). Johnson’s fallback argument was that even if Congress could authorize this kind of military trial, the president could not do so on his own and the Habeas Corpus Suspension Act of 1863 did not do so. See ibid. at 253–56. 38. U.S. Const., amend. V; see Johnson Argument at 252.

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39. See Johnson Argument at 253. Bingham countered that the Fifth Amendment said only that the grand jury requirement did not apply to soldiers. See Bingham Closing Argument at 360–61. 40. Johnson Argument at 253. 41. Ibid. at 255; see New York Times, May 11, 1865 (calling the military commission “an anomaly. It is one for which no precedent is to be found in the history of any free country, and one to which the European despotisms have rarely ventured”). 42. Johnson Argument at 256. 43. Ibid. 44. Ibid. at 255. 45. Ibid. at 260. 46. Bingham did not concede that congressional authorization was required, holding that the authority to create military tribunals “must rest with the officer of the Government who is charged by the express terms of the Constitution with the performance of this great duty for the common defense and the execution of the laws of the Union.” Bingham Closing Argument at 360. 47. Ibid. at 359 (quoting Lincoln’s order of Sept. 24, 1862). 48. Ibid. at 368–70; see ibid. at 359 (“[T]he question of the existence of an insurrection is a political question, the decision of which belongs exclusively to the political department of the government.”). 49. Ibid. at 359; see ibid. at 364 (“If the Congress, corruptly, or oppressively, or wantonly, abuse this great trust, the people by the irresistible power of the ballot [can] hurl them from [their] place.”). 50. Ibid. at 358. 51. Ibid. 52. Ibid.; see ibid. at 363 (“That these powers for the common defense, entrusted by the Constitution exclusively to the Congress and the President, are, in time of civil war or foreign invasion, to be exercised without limitation or restraint, to the extent of the public necessity, and without any intervention of the federal judiciary or of State constitutions or State laws, are facts in our history not open to question.”). 53. Ibid. at 365. 54. Ibid. at 366; see M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420 (1819). 55. Bingham Closing Argument at 366. 56. Ibid. at 352 (stating that Booth “could not be and was not arrested upon civil process, but was pursued by the military power of the government, captured, and slain. Was this an act of usurpation?”). 57. Ibid. at 361. 58. Ibid. 59. Ibid. at 365. 60. Ibid. at 355. 61. Ibid.

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62. Cf. David McCullough, John Adams (New York: Simon and Schuster, 2001), 65–68 (describing Adams’s defense of the British soldiers implicated in the Boston Massacre). 63. 71 U.S. (4 Wall.) 2 (1866). 64. See ibid. at 107. 65. Ibid. at 109. 66. Ibid. at 120–21. 67. Ibid. at 121. 68. See ibid. at 118 (stating that Milligan was “not a resident of one of the rebellious states”); ibid. at 121 (stating that martial law “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed”). 69. Ibid. at 127. 70. See Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fl. 1868) (stating that Spangler, Mudd, and Arnold sought relief). There are no page cites to this opinion because the original records were lost. The quotes in the text come from a copy that was printed in a newspaper. 71. The conspiracy to kidnap Lincoln did have a military purpose—facilitating a prisoner exchange or a cease-fire—but after Lee’s surrender Booth probably just wanted vengeance. 72. See Leonard, Avengers, 67; see also Steers, The Trial, 247 (stating that the judgments were announced on June 29). 73. See Kaufmann, Brutus, 368–69; Steers, The Trial, 247 (“The Commission met, with closed doors, pursuant to adjournment. All the members present; also the Judge Advocate and the Assistant Judge Advocates.”). 74. See U.S. Const., art. III, § 3, cl. 1 (stating that “[n]o person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court”). 75. See Kaufmann, Brutus, 355; see also Johnson Argument at 259 (“That such pleading as this would not be tolerated in a civil court, I suppose every lawyer will concede.”). This issue came to a head in a rough exchange between Thomas Ewing, Samuel Mudd’s attorney, and Bingham. See Steers, The Trial, 244–47. Ewing asked, “By what code or system of laws is the crime of ‘traitorously’ murdering, or, ‘traitorously’ assaulting with intent to kill, or ‘traitorously’ lying in wait defined?” Ibid. at 247. When Bingham responded with “[t]he common law of war,” Ewing replied, “I am as much in the dark now as to that as I was in reference to the other inquiry.” Ibid. 76. The trial began in secret, but this proved unpopular and the proceedings were opened on May 15. See Kaufmann, Brutus, 343–44; Thomas and Hyman, Stanton, 424. Bingham defended the fairness of the tribunal in his closing argument. See Bingham Closing Argument at 356 (“What, then, was done . . . by the government, which justifies this clamor about a Spanish Inquisition?”).

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77. See Steers, The Trial, 24–247. One interesting feature of the transcript is that all of the African American witnesses are designated as “colored.” Perhaps this was meant to indicate that their credibility was supposed to be suspect, but the willingness of the panel to consider this testimony was praiseworthy given that many states did not admit proof from African Americans against whites at this time. 78. See ibid. at 101 (“This witness can not be evidence for any human being on that subject, no matter what Booth said to him about it. I object to it on the ground that it is entirely incompetent, and has nothing in the world to do with the case.”); ibid. at 103 (“It is not a simple question of relevancy here; it is absolute incompetency.”); ibid. at 135 (“If immaterial questions were allowed to be asked and answers obtained, and the witnesses contradicted, the case would never end, if the Court lived to be as old as Methusalah.”); ibid. at 199 (“The great trouble is that the gentleman does not read enough.”); ibid. at 212 (“The witness is asked to state what a third person told the prisoner at the bar, and that I object to as utterly incompetent.”); ibid. at 232 (“There was no authority in the world for such a question as that; it was a burlesque upon judicial proceedings.”). 79. Ibid. at 236–37. 80. Ibid. at 239. 81. See ibid. at 236 (quoting defense counsel’s position that his client was not on trial for being part of the Confederate army); see also Witt, Lincoln’s Code, 296 (describing this point and stating that Bingham “sought to use the trial to establish a breathtaking expansion in the scope of the military commissions”). 82. See Beauregard, Bingham, 86; Kaufmann, Brutus, 367. 83. Kaufmann, Brutus, 368. 84. Bingham Closing Argument at 351. 85. See Bingham Closing Argument at 388 (quoting Arnold’s letter to Booth dated March 27, 1865, which clearly incriminated him and O’Laughlen in the prior conspiracy with Booth). 86. See ibid. at 389, 396. The commission acquitted O’Laughlen of the charge of conspiring to kill Grant. See Steers, The Trial, 248. 87. See Kauffman, Brutus, 230; Leonard, Avengers, 7. 88. Bingham Closing Argument at 390; see also Cong Globe, 40th Cong., 1st Sess. 364 (1867) (statement of Rep. Bingham) (“[I]t was exhibited in evidence on that trial that the original plan, as falsely alleged by the conspirators, was to kidnap, not to assassinate.”). 89. See Steers, The Trial, 247–48. 90. See Kaufmann, Brutus, 386–87. 91. See Swanson, Manhunt, 36; ibid. at 198 (“Poor Spangler had nothing to do with the assassination—or the earlier kidnapping plot.”); see also Kaufmann, Brutus, 224 (stating that Spangler gave Booth’s horse to another man and went back to work). 92. Bingham Closing Argument at 395.

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93. Steers, The Trial, 286. 94. See Bingham Closing Argument at 395 (rejecting the claim that Spangler did not make the suspicious statement). Bingham hurled several accusations that Spangler made it possible for Booth to enter the president’s box without being noticed, but there was nothing to support that claim. See ibid. at 394. The government also argued that rope found in Spangler’s room was supposed to help Booth climb from the box, but there are many reasons why a man working at a theater might have rope. See ibid. at 395. 95. Ibid. at 394. 96. See Kaufmann, Brutus, 387; Steers, The Trial, 249. 97. See Swanson, Manhunt, 127–29; see also Bingham Closing Argument at 382–86 (summarizing these early contacts). 98. Bingham Closing Argument at 383. 99. Ibid. 100. See Swanson, Manhunt, 125; Bingham Closing Argument at 398. 101. See Leonard, Avengers, 126; Swanson, Manhunt, 129–32, 154–58. 102. See Bingham Closing Argument at 398–99; Swanson, Manhunt, 160–62, 211–13. 103. Bingham Closing Argument at 398. 104. See Steers, The Trial, 249; see also Kaufmann, Brutus, 387 (discussing the pardon). 105. See, e.g., Cong. Globe, 41st Cong., 2d Sess. 717 (1870) (statement of Rep. Butler) (stating that in Virginia Bingham was denounced as “the murderer of Mrs. Surratt”). 106. John Surratt’s absence may explain why his mother received the death penalty. The sentence could have been a way of getting her to disclose her son’s whereabouts in exchange for clemency, assuming that she knew where he was. 107. See Swanson, Manhunt, 19, 22; see also Bingham Closing Argument at 393 (describing this incident). 108. Swanson, Manhunt, 22. 109. See Kaufmann, Brutus, 223; Swanson, Manhunt, 22–23. 110. See Bingham Closing Argument at 393–94; Swanson, Manhunt, 390–92. 111. Bingham Closing Argument at 394. 112. See Leonard, Avengers, 118; Steers, The Trial, 296–97 (providing the closing argument about Lloyd on behalf of Mrs. Surratt); see also Bingham Closing Argument at 393 (arguing that Lloyd’s proof was independently corroborated and that the attempt to impeach his credibility was not persuasive). 113. See Leonard, Avengers, 119; see also Steers, The Trial, 297 (summarizing the defendant’s evidence about Powell’s visit). 114. Bingham Closing Argument at 393–94. 115. See Steers, The Trial, 298–99. 116. See Kaufmann, The Trial, 375; Leonard, Avengers, 132. 117. See Steers, The Trial, 248; see also Beauregard, Bingham, 86–87 (quoting the petition); Shotwell, Driftwood, 208 (“The commission, though finding Mrs.

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Surratt guilty, recommended mercy, more, perhaps, out of regard for her sex, than for any other reason.”). 118. See Steers, The Trial, 250. 119. See Kaufmann, Brutus, 372–74; Thomas and Hyman, Stanton, 434. 120. See Thomas and Hyman, Stanton, 429–30; see also Leonard, Holt, 293 (discussing this allegation). 121. Letter from John A. Bingham to Joseph Holt, Feb. 17, 1873 (Library of Congress). 122. See Thomas and Hyman, Stanton, 430; letter from Joseph Holt to John A. Bingham, Feb. 18, 1873 (stating in an angry letter that “[i]t would have been fortunate for me indeed . . . [to] have had this testimony in my possession years ago”) (Bingham Papers). 123. See Cong. Globe, 40th Cong., 1st Sess. 263 (1867) (statement of Rep. Bingham) (“[I]t does not become a gentleman who recorded his vote fifty times for Jefferson Davis, the arch-traitor in this rebellion, as his candidate for President of the United States, to undertake to damage this cause by attempting to cast an imputation either upon my integrity or my honor.”); ibid. (statement of Rep. Butler) (“I have never concealed, Mr. Speaker, the fact which is now so offensively put forward, that before the war I, in the convention of my party, voted fifty-seven times for Jefferson Davis for President. I thought him the representative man of the South, and I hoped by his nomination to prevent threatened disunion.”). 124. See Witt, Lincoln’s Code, 202–3. 125. See Bruce Catton, Terrible Swift Sword (Garden City, NY: Doubleday, 1965), 394–96 (explaining that Butler’s order was never enforced). 126. Cong. Globe, 40th Cong., 1st Sess. 263 (1867) (statement of Rep. Butler); see “Bingham and Butler: Their War Dance in the House,” New York Times, Mar. 25, 1867 (“The chief feature of today’s proceedings in Congress was the sparring between General Butler and Judge Bingham. . . . The hostility of these two gentlemen to each other is most marked, and is [a] matter of comment in all circles.”). 127. Cong. Globe, 40th Cong., 1st Sess. 263–64 (1867) (statement of Rep. Bingham). 128. See ibid. at 363 (statement of Rep. Butler); see also “Gen. Butler’s Slanders,” New York Times, Mar. 28, 1867, at 4 (stating that Butler made the charge to cast suspicion on President Johnson). 129. Cong. Globe, 40th Cong., 1st Sess. 363 (1867) (statement of Rep. Butler); see ibid. at 364 (statement of Rep. Bingham) (“If John Wilkes Booth tore pages out of it, was that spoliation or mutilation? The gentleman’s words are as impotent as they are unwarranted.”). 130. Ibid. (statement of Rep. Butler). 131. Ibid. 132. Ibid. at 364. 133. Ibid. (statement of Rep. Bingham) (“I never saw any memorandum of any kind of John Wilkes Booth or any writing indicating . . . any plan by which he was

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to carry out his projected conspiracy. I never saw any such thing. That is my answer to that.”). 134. Ibid.; see “Gen. Butler’s Slanders,” at 4 (rejecting the idea that “[a] man commits a murder,—and writes letters or makes declarations after the act, intended to excuse himself or screen his accomplices; and those declarations are to be deemed evidence, after his death,—when he could not be cross-examined or even sworn”). 135. Cong. Globe, 40th Cong., 1st Sess. 364 (1867) (statement of Rep. Bingham). 136. Ibid. 137. See Leonard, Avengers, 249–50; Thomas and Hyman, Stanton, 428. 138. See Kaufmann, Brutus, 359; Leonard, Avengers, 251. It is fair to say, though, that the War Department’s treatment of the diary was a blunder that fueled conspiracy theories. 139. Ripley Bee, Sept. 2, 1868. 140. Ibid. It is unclear whether Bingham personally believed that Mary Surratt should be spared from death or whether he was acting as the agent for the members of the commission who felt that way. 141. See Leonard, Avengers, 253–54; Swanson, Manhunt, 376. 142. “Washington Letter,” Cincinnati Commercial, July 6, 1867, at 2. 143. See Kaufmann, Brutus, 389–90; Leonard, Avengers, 260–61. 144. See Swanson, Manhunt, 377; Leonard, Avengers, 296. 145. The hung jury in John Surratt’s trial could be partly attributed to other factors. For example, his attorneys were in a better position to defend him because they knew the government’s case. In addition, he may have benefited from sympathy generated by his mother’s death.

Notes to Chapter 7 1. See U.S. Const., amend. XIV, § 1; tenBroek, Equal under Law, 145 (“The work of Bingham was the meeting ground, in a sense that the work of no other individual was, of the three concepts and clauses that came to constitute the first section of the Amendment.”). 2. See generally Benjamin F. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865–1867 (New York: Columbia University Press, 1915) (containing the minutes of the Joint Committee). 3. The rediscovery of Bingham’s views came in Justice Black’s dissenting opinion in Adamson v. California, which can be found at 332 U.S. 46, 68–123 (1947). 4. There is an extensive literature on the Fourteenth Amendment that is not discussed in this chapter. This is a book about Bingham, not about the amendment, and thus the views of his colleagues are not (with only a few exceptions) germane to his story. 5. Abraham Lincoln, Inaugural Address (Mar. 4, 1865), in Richardson, Messages, 8: 3478.

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6. See Bruce Ackerman, We the People: Transformations (Cambridge: Harvard University Press, 1998), 139; Earl M. Maltz, Civil Rights, the Constitution, and the Congress, 1863–1869 (Lawrence: University Press of Kansas, 1990), 41. The president could coerce southern leaders to do his bidding with the threat of a treason trial (or, even worse, a military commission) and the promise of a pardon. 7. See Magliocca, Andrew Jackson, 113–15 (discussing Johnson’s deep roots in Jacksonian democracy). 8. The next person in the line of succession after Vice President Johnson was the president pro tempore of the Senate, Lafayette S. Foster, a conservative Republican from Connecticut who may have endorsed an approach similar to Johnson’s. 9. “Extract from a Speech of Hon. John A. Bingham, of Ohio,” Milwaukee Daily Sentinel, Sept. 30, 1865. Most of the quotes in this paragraph come from this article. Bingham reiterated his view of presidential and congressional power a few months later in a confrontation with another representative. See Cong. Globe, 39th Cong., 1st Sess. 123–24 (1865). 10. See U.S. Const., art. V. 11. The more complex question of whether the Confederate States committed “suicide” by seceding and therefore lost all of their rights is addressed in chapter 8. 12. Cincinnati Daily Commercial, Sept. 19, 1865. 13. See Cong. Globe, 39th Cong, 1st Sess. 3–4 (1865); Trefousse, Stevens, 175–76. One of the constitutional inconsistencies during Reconstruction was that the ex-Confederates were counted as states for purposes of ratifying the Thirteenth Amendment, but not for the purpose of congressional representation. For an attempt to reconcile these choices, see Amar, America’s Constitution, 366–76. 14. Cong. Globe, 39th Cong., 1st Sess. 14 (1865); see “Washington News,” New York Times, Dec. 11, 1865 (stating that Bingham’s amendment “is intended to secure equal personal, not political rights, to all persons, without distinction, in every State which is a part of the republic, and without which no man can look for such security, in any rebel State during this generation”). 15. See Cong. Globe, 39th Cong., 1st Sess. 6, 46–47 (1865); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988), 48. 16. See generally Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966). 17. Three Democrats were on the Joint Committee, including Reverdy Johnson, Bingham’s foe during the Lincoln trial, but they did not exert much influence on its work. See Nelson, Fourteenth Amendment, 48 (stating that Johnson, Andrew Jackson Rogers, and Henry Grider were the three Democrats); see also Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham) (stating that Rogers thought that the Joint Committee was “more tyrannical than any tyranny which disgraced the times of Louis XIV”).

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18. See Trefousse, Stevens, 176. Biographical sketches of all of the Joint Committee members can be found in Kendrick, Journal, at 155–97. 19. See Cong. Globe, 39th Cong, 1st Sess. 57 (1865). 20. Cf. Kendrick, Journal, 184 (stating that Bingham “was regarded as among the five or six leading Republican members” of the House during Reconstruction). 21. See Cong. Globe, 39th Cong, 1st Sess. 156–59 (1866) (statement of Rep. Bingham). 22. Ibid. at 156. 23. Ibid. 24. Ibid. at 157. 25. Ibid. 26. Ibid. at 157; see ibid. at 1065 (rejecting the view that the Fourteenth Amendment would only protect African Americans by noting that “it is proposed as well to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them under confiscation, and protect them also against banishment”). 27. Ibid. at 158. 28. Ibid. 29. Ibid.; see ibid. (“In doing this I would impose no restraint on South Carolina that shall not rest with equal weight upon the State of Ohio.”). 30. Ibid. 31. For a detailed discussion of Bingham’s thinking in this speech, see Kurt T. Lash, “The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment,” Georgetown Law Journal 99 (2011): 349–51. 32. See Cong. Globe, 39th Cong., 1st Sess. 428–33 (1866); David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), 165 (describing the first proposal of the Joint Committee). 33. See Cong. Globe, 39th Cong., 1st Sess. 433 (1866). This proposal also repealed the Three-Fifths Clause, which held that slaves should be counted as less than a person for purposes of representation. See U.S. Const., art. I, § 2, cl. 3. This meant, ironically, that the South would get more representatives, as its African American population “increased” after emancipation. 34. Section Two was more specific in discussing the elections that were covered, limited its scope to United States citizens, and made exceptions for men convicted of a crime or disabled from voting due to their participation in the rebellion. See U.S. Const., amend. XIV, § 2. 35. Cong. Globe, 39th Cong., 1st Sess. 431 (1866) (statement of Rep. Bingham). 36. Ibid. at 433. 37. Ibid. at 429; see ibid. at 432 (stating that Congress would “be empowered to provide by law that hereafter no State shall make it a crime for a man, whether

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he be black or white, a citizen of the Republic, to learn the alphabet of his native tongue and to learn as well his rights and duties”). 38. Ibid. at 429. 39. Ibid. 40. Ibid. at 1094. 41. See Beauregard, Bingham, 112. 42. Ibid. at 113. 43. See Cincinnati Gazette, Jan. 18, 1866. 44. Cong. Globe, 39th Cong., 1st Sess. 1034 (1866). 45. Ibid. (statement of Rep. Bingham). The rest of the quotes in this paragraph come from the same page in the Congressional Globe. 46. Bingham argued, in a manner similar to what he said in his 1859 speech on the Oregon Territory, that state officials were bound to apply the Bill of Rights by their oath to support the Constitution and by the Supremacy Clause. See ibid. at 1090. 47. I want to thank Pauline Maier, an outstanding scholar of American history, for clarifying this point for me. 48. See Curtis, No State Shall Abridge, 63–64 (noting that the Court gave a similar interpretation to the Fugitive Slave Clause, which was in Article Four with the Privileges and Immunities Clause). 49. See George C. Thomas III, “Newspapers and the Fourteenth Amendment: What Did the American People Know about Section 1?,” Journal of Contemporary Legal Issues 18 (2009): 330 (“Far from being confused, Bingham was a consummate politician. . . . He sought to ground the amendment in existing law so that it would not appear too revolutionary for moderate Republicans.”). 50. The most significant scholar who was confused was Charles Fairman, who undertook an analysis of the Fourteenth Amendment in 1949 and found Bingham’s discussion of the Bill of Rights “novel” and “befuddled.” See Fairman, “Bill of Rights,” 25. 51. Amar, America’s Constitution, 387; see New York Times, Mar. 1, 1866, at 5 (stating that the proposal would “arm the Congress . . . with the power to enforce the Bill of Rights”). 52. See Andrew Johnson, Veto Message, in Richardson, Messages, 8: 3596–603 [hereinafter Freedmen’s Bureau Veto]. 53. See Eric Foner, A Short History of Reconstruction (New York: Harper and Row, 1990), 31–32 (describing the inception of the bureau in 1865). 54. Freedman’s Bureau Veto at 3599. 55. See ibid. at 3601 (“I cannot but add another very grave objection to this bill. At the time . . . of the consideration and the passing of this bill there was no Senator or Representative in Congress from the eleven States which are to be mainly affected by its provisions.”) 56. See Hans L. Trefousse, Andrew Johnson: A Biography (New York: W. W. Norton, 1989), 243.

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57. See Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham); see also Articles of Confederation, art. XIII (imposing the unanimity requirement); see also Jacob E. Cooke, ed., The Federalist (Hanover, NH: Wesleyan University Press, 1961), 258–67 (giving Madison’s explanation, in Federalist No. 40, for why the convention was right to ignore Article Thirteen of the Articles of Confederation). 58. See U.S. Const., art. VII; see Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham). 59. Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham); see ibid. at 3980 (repeating this argument). 60. Ibid.; see “The Constitutional Amendment, Discussed by Its Author,” Cincinnati Commercial, Aug. 27, 1866, at 1 [hereinafter “Constitutional Amendment”] (adding that Johnson’s view would call into doubt the legitimacy of his election as vice president). 61. Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham); see ibid. at 1090 (“The adoption of the proposed amendment will take from the States no rights that belong to the States.”); ibid. at 1094 (stating that he urged the amendment “in no spirit of innovation”). 62. Ibid. at 1088; see ibid. at 1090 (“I am perfectly confident that the grant of power would have been [at the Founding] there but for the fact that its insertion would have been utterly incompatible with the existence of slavery in any State.”). 63. Ibid. at 1089; see ibid. (“[T]he gentleman reiterates the old cry of State rights, and says ‘You are impairing State rights.’”). 64. Ibid.; see ibid. (making the related point that “[i]f a State has not the right to deny equal protection to any human being under the Constitution of this country in the rights of life, liberty, and property, how can State rights be impaired by penal prohibitions of such denial as proposed?”). 65. 32 U.S. (7 Pet.) 243 (1833). 66. Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham); see Cong. Globe, 39th Cong., 2d Sess. 811 (1867) (statement of Rep. Bingham) (stating that the Bill of Rights were “not such limitations upon the States as can be enforced by Congress and the judgment of the United States courts”). 67. Indeed, a little later Bingham admitted this point by saying that the case law held that “the existing amendments are not applicable to and do not bind the States.” Cong. Globe, 39th Cong., 1st Sess. 1090 (1866) (statement of Rep. Bingham). 68. See Cong. Globe, 42nd Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham) (explaining that the privileges and immunities of citizens of the United States “are chiefly defined in the first eight amendments to the Constitution of the United States”). There is a big difference between “chiefly” and “exclusively.” In this sense, I do not agree with Kurt Lash’s view that Bingham believed that Article Four was part of the Bill of Rights and then changed his mind. See Lash, “Second Draft,” 425. A better way of putting it is that he shifted his case for why the Bill of Rights should bind the states.

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69. See Cong. Globe, 39th Cong., 1st Sess. 1095 (1866) (statement of Rep. Hotchkiss) (making this point in a dialogue with Bingham). 70. Ibid. (statement of Rep. Bingham). 71. Ibid. (statement of Rep. Hotchkiss). 72. 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230); see Lash, “Second Draft,” 358 (“[B]y using the exact language of Article IV, Bingham ensured that the proposed amendment would be viewed against the background of judicial opinions and legal treatises which took a distinctly non-Bingham approach to Article IV.”). 73. Corfield, 6 Fed. Cas. at 551–52. 74. Kurt Lash was the first scholar to make this observation about Bingham’s lack of interest in Corfield during the Thirty-Ninth Congress. See Lash, “Second Draft,” 358–59. 75. See Cong. Globe, 39th Cong., 1st Sess. 1094 (1866) (reprinting a dialogue between Bingham and Representative Hale on the federal regulation of property rights). Bingham explained: “As to real estate, every one knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States.” Ibid. at 1089 (statement of Rep. Bingham); cf. Lash, “Second Draft,” 364 (pointing out that other Republicans grounded their theory of privileges and immunities in Corfield). 76. Cong. Globe, 39th Cong., 1st Sess. 1094 (1866) (statement of Rep. Bingham). 77. Ibid. at 1090–91. 78. Ibid. at 1090. 79. See ibid. at 1095; see also Cong. Globe, 42nd Cong., 1st Sess. app. at 83 (1871) (statement of Rep. Bingham) (explaining the procedural background of this motion). 80. “Washington News,” New York Times, Mar. 1, 1866, at 4. 81. See Foner, Reconstruction, 110. 82. Cong. Globe, 39th Cong., 1st Sess. 1117 (1866). 83. Ibid. 84. See ibid. at 1291 (statement of Rep. Bingham) (“Doubting, as I do, the power of Congress to pass the bill, I urge the instructions with a view to take from the bill what seems to me its oppressive and I might say its unjust provisions.”). 85. See ibid. at 1291 (statement of Rep. Bingham) (“I deny the power of Congress to make an error of judgment in a State officer a crime to be punished by imprisonment.”); ibid. (proposing that the criminal remedy be changed into a civil one). 86. See ibid. at 1291–92; ibid. at 1292 (“Your Constitution says ‘no person,’ not ‘no citizen,’ ‘shall be deprived of due process of life, liberty, or property’ without due process of law.”). 87. Ibid. at 1291. 88. See ibid. at 1292; ibid. (“I stand by the Freedmen’s Bureau bill; and standing by that bill I hold it up this day before the House as a point blank condemnation of the attempt to assert this great power over States duly organized.”).

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89. Ibid. at 1291. 90. Ibid.; see ibid. (stating that he supported “an earnest desire to have the bill of rights in your Constitution enforced everywhere. But I ask that it be enforced in accordance with the Constitution of my country”). 91. Ibid. at 1292; see ibid. at 1093 (“[W]here is the express power to define and punish crimes committed in any State by its official officers in violation of the rights of citizens and persons as declared in the Constitution? And from what expressly delegated power in the Constitution can any such power be implied?”). 92. Ibid. at 1291. 93. See ibid. at 1367. 94. Andrew Johnson, Veto Message, Mar. 27, 1866, in Richardson, Messages, 8: 3604, 3611. 95. See Foner, Reconstruction, 113; Trefousse, Stevens, 184. 96. See Kendrick, Journal, 81–120; Lash, “Second Draft,” 395–96. 97. Kendrick, Journal, 296. 98. Ibid. at 85. 99. U.S. Const., amend. XIV, § 1. The Due Process Clause was redundant for citizens given that the Privileges or Immunities Clause applied the Fifth Amendment to the states, but that was not true for aliens. See Amar, America’s Constitution, 388. 100. See Kendrick, Journal, 106; see also Cong. Globe, 42nd Cong., 1st Sess. app. at 83 (1871) (statement of Rep. Bingham) (discussing the second draft of Section One). 101. Moreover, President Johnson’s veto of the Civil Rights Act denied that African Americans were entitled to all of the “privileges and immunities of citizens of the United States,” which may also explain why the last four words were added to Section One. See Cong. Globe, 39th Cong., 1st Sess. 1679 (1866). I am indebted to Kurt Lash for drawing my attention to this point in a draft paper. 102. See Cong. Globe, 42nd Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham) (stating that Corfield did not apply to Section One of the Fourteenth Amendment). 103. Ibid.; see Cong. Globe, 39th Cong., 2d Sess. 811 (1867) (statement of Rep. Bingham) (stating that the Fourteenth Amendment would incorporate “all of the limitations for personal protection of every article and section for the Constitution, any by which also the Congress will be empowered by law to enforce every one of those limitations so essential to justice and humanity”). 104. See Cong. Globe, 42nd Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham). This resolved an ambiguity in his definition of the Bill of Rights, as it was not clear in 1866 whether he was referring to the first ten amendments or to the first eight. See ibid. (“Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.”).

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105. Ibid. app. at 152; see generally Millard, Destiny of the Republic (discussing Garfield’s life). 106. See U.S. Const., amend. XIV, §§ 2–4; Cong. Globe, 39th Cong., 1st Sess. 2542–43 (1866) (statement of Rep. Bingham). Section Five said that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const., amend. XIV, § 5. 107. Cong. Globe, 39th Cong., 1st Sess. 2542 (1866) (statement of Rep. Bingham). 108. Ibid.; see ibid. (“Contrary to the express letter of your Constitution, ‘cruel and unusual punishments’ have been inflicted under State laws within this Union upon citizens.”); cf. Cong. Globe, 39th Cong., 2d Sess. 811 (1867) (statement of Rep. Bingham) (“So far as we can constitutionally do anything to prevent the infliction of cruel punishments by State laws I wish to see it done.”). 109. Cong. Globe, 39th Cong., 1st Sess. 2542 (1866) (statement of Rep. Bingham). 110. Ibid. at 3349. 111. Ibid. at 1093 (statement of Rep. Latham); see ibid. (statement of Rep. Bingham) (“It is not for me, Mr. Speaker, or for any other member of this House, to suppose any such thing as that.”). 112. See Kendrick, Journal, 118; see also Cong. Globe, 39th Cong., 1st Sess. 2541 (1866) (statement of Rep. Bingham) (explaining that the consent “of the insurrectionary State” to the Fourteenth Amendment was required for readmission). 113. See Cong. Globe, 39th Cong., 1st Sess. 3981 (1866); cf. letter from John A. Bingham to Edwin M. Stanton, Sept. 3, 1866 (Library of Congress) (stating that he was for the ratification of the Fourteenth Amendment and the “speedy restoration” of the Confederate States). 114. See Kyvig, Authentic Acts, 170; see also Trefousse, Johnson, 253 (stating that the president tried to use his political connections there to prevent ratification). 115. See Cong. Globe, 39th Cong., 1st Sess. 3978–79 (1866) (statement of Rep. Bingham) (explaining that this would put Tennessee on a different footing from other loyal states in the North that restricted African American suffrage). Bingham would change his view when the admission of the other rebel states came before the House. 116. Ibid. at 3979. 117. Ibid. 118. See Trefousse, Johnson, 253; Andrew Johnson, Veto Message, May 15, 1866, in Richardson, Messages, 8: 3614 (“The condition of the Union at the present moment is calculated to inspire caution in regard to the admission of new States.”). The Nebraska bill was pocket vetoed. See Cong. Globe, 39th Cong., 2d Sess. 449–50 (1867) (statement of Rep. Bingham). 119. See Ackerman, Transformations, 179–80; Stewart, Impeached, 67. 120. See Foner, Reconstruction, 118; Shotwell, Driftwood, 213. 121. See Gerard N. Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (New Haven: Yale University Press, 2011), 105.

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Johnson campaigned in Harrison County, but there is no indication that he attacked Bingham by name. See Cincinnati Commercial, Sept. 14, 1866. 122. “Constitutional Amendment,” at 1. 123. Ibid. 124. Ibid. (discussing “The Wool Tax”). 125. New Hampshire Statesman, Aug. 24, 1866. 126. Ibid. 127. Cincinnati Daily Commercial, Aug. 10, 1866, at 1. 128. Bangor Daily Whig and Courier, Aug. 18, 1866. 129. Nation, Nov. 15, 1866. 130. See Beauregard, Bingham, 116; Stewart, Impeached, 69; see also Ackerman, Transformations, 182 (explaining that the Republicans outnumbered Democrats 3–1 so long as the ten former Confederate States were excluded). The fact that Bingham won by a fairly modest amount in a Republican “wave” year like 1866 is more proof that the 1862 redistricting left him with little margin for error. 131. See Foner, Reconstruction, 118; Trefousse, Johnson, 265. 132. See Cincinnati Commercial, Nov. 15, 1866; London Telegraph, Oct. 22, 1866. 133. With some exceptions discussed in chapter 9, Bingham did not say much about the substance of the guarantees in the Bill of Rights, though he did make a comment about the right to sit on a jury that is hard to parse. See Cong. Globe, 41st Cong., 2d Sess. 495 (1870) (statement of Rep. Bingham) (“[I]f to sit upon juries be a right of the citizen secured by the Constitution I pray gentlemen not to meddle with it by act of Congress. If this be a right common to all citizens it is sacred and safe and is imperiled by such legislation as that proposed.”). I am not sure what to make of Bingham’s use of the word “if ” in this passage. 134. There is no indication that Bingham thought that corporations should be protected as persons under Section One. In 1882, Roscoe Conkling, his colleague on the Joint Committee, told the Supreme Court that Section One was intended, in part, to protect corporations. See Graham, Everyman’s Constitution, 30–31. This claim came in a case that Conkling was arguing on behalf of a corporate client and could not be disproved because the records of the Joint Committee’s discussions were so scanty. Nonetheless, there are no references to corporations in Bingham’s speeches or correspondence, let alone evidence that he thought that the Amendment applied to them. In 1871, Bingham did speak on behalf of a bill to extend the Privileges or Immunities Clause to corporations, but that suggests that he did not believe that they were constitutional citizens. See Cong. Globe, 41st Cong., 3d Sess. 1288 (1871) (statement of Rep. Bingham).

Notes to Chapter 8 1. See Ackerman, Transformations, 189; Trefousse, Johnson, 272. 2. See Foner, Reconstruction, 107; Kenneth M. Stampp, The Era of Reconstruction, 1865–1877 (New York: Alfred A. Knopf, 1966), 126–27.

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3. See Stewart, Impeached, 237–38; see also Cong. Globe, 40th Cong., 2d Sess. supp. at 379–406 (1868) (containing Bingham’s entire speech). 4. See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus and Giroux, 2009), 125; see also Kyvig, Authentic Acts, 171 (documenting these rejections). 5. See Ackerman, Transformations, 110; Amar, America’s Constitution, 366. When Nebraska was admitted in 1867, the number needed for ratification increased to twenty-eight. 6. See Stewart, Impeached, 75; Trefousse, Johnson, 273. 7. See Cong. Globe, 39th Cong. 2d Sess. 501 (1867) (statement of Rep. Bingham) (“[T[his Congress of the United States had full power, without the consent and against the consent of every insurrectionary State in this land, to propose the pending amendment to the Constitution. . . . But it does not follow from this that the people of those States may not reorganize the local State governments destroyed by their rebellion, and ratify the pending amendment with the consent of this Government.”). 8. After the dust had settled, the Supreme Court held that no state could lose its full status. See Texas v. White, 74 U.S. (1 Wall.) 700, 726 (1869) (“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”). 9. Cong. Globe, 37th Cong., 2d Sess. 1204 (1862) (statement of Rep. Bingham). 10. Ibid. at 1205. 11. See Cong. Globe, 40th Cong., 1st Sess. 64 (1867) (statement of Rep. Bingham) (“[T]he organized represented States of this Union are the Union; and twenty of those states, being three-fourths of the whole number represented, having ratified the amendment to the Constitution proposed by the Thirty-Ninth Congress, that amendment has now become part of the fundamental law.”). 12. See Cong. Globe, 40th Cong., 2d Sess. 3094 (statement of Rep. Bingham) (stating that getting three-quarters of all states to ratify the Fourteenth Amendment would make it valid “under any theory”). 13. At one point Bingham analogized the ratification of the Fourteenth Amendment to the Founding, pointing out that North Carolina and Rhode Island did not ratify the Constitution until after 1789, which proved that “organized States not in the Union or of the Union might ratify the Constitution, and, by Congress subsequently assenting thereto, the ratification became valid upon the admission of such States to representation.” Cong. Globe, 39th Cong., 2d Sess. 501 (1867) (statement of Rep. Bingham). 14. Cong. Globe, 39th Cong., 1st Sess. 1093 (1866) (statement of Rep. Bingham). 15. See 71 U.S. (4 Wall.) 2 (1866). 16. One could say that a congressional decision to close the courts and impose martial law in a state came within the holding of Milligan, since the courts would no longer be open. But that was a narrow reading of what the Supreme Court said.

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17. See Niven, Chase, 421 (noting that Wade was allowed to vote on Johnson’s guilt even though he stood to benefit from a conviction). 18. See Thomas and Hyman, Stanton, 511 (observing that Stanton was the only dissenting voice in the cabinet on Reconstruction). 19. See Beauregard, Bingham, 118. 20. See Cong. Globe, 39th Cong., 2d Sess. 321 (1867). 21. See Trefousse, Stevens, 1 (noting that Stevens was born in 1792); see also Stewart, Impeached, 20–21 (providing some background on Stevens). 22. See Stewart, Impeached, 20; Trefousse, Stevens, 242. 23. This characterization is common in the sources written during the Jim Crow period of racial segregation, which latched onto Stevens as their villain and Bingham as his lackey. This is misleading in two respects. First, Bingham and Stevens agreed most of the time. Second, when they disagreed, Bingham usually came out on top. 24. See Cong. Globe, 39th Cong., 1st Sess. 3981 (1866). 25. Ibid. (statement of Rep. Stevens). 26. Cong. Globe, 39th Cong., 2d Sess. 250 (1867). The description of the legislation in the rest of this paragraph comes from the same page. 27. Ibid. at 252 (statement of Sen. Stevens). The bill also held that if an ex-Confederate state ever amended its state constitution, then it would lose statehood. See ibid. at 250; see also ibid. at 504 (statement of Rep. Bingham) (attacking this clause); cf. Cong. Globe, 40th Cong., 2d Sess. 2211–13 (1868) (statement of Rep. Bingham) (making the similar argument against a bill readmitting Alabama to the Union). 28. Ibid. at 500 (statement of Rep. Bingham). The other quotes in this paragraph come from the same cite, and the time consumed can be calculated by reviewing the amount yielded to Bingham. 29. See ibid. (opposing the Stevens bill because it sought “to induce the House to depart from what has hitherto been agreed upon by the Committee on Reconstruction; what has hitherto been done and sanctioned by the Thirty-Ninth Congress; what has hitherto been done and sanctioned by the people through the public press, in their primary assemblies, at the ballot-box, and finally what is now being done, and conclusively done, by the people of the organized States through their legislative assemblies”). 30. Ibid. at 502. 31. Ibid. at 502–3. 32. See ibid. at 503. 33. Ibid. at 504. 34. Ibid. at 500; see Cincinnati Commercial, Jan. 24, 1867 (describing “the speech of Hon. John A. Bingham, of Ohio, in opposition to the proposed repudiation of the constitutional amendment by the Radicals as a basis of settlement and the destruction of the State Governments of the South”). 35. Cong. Globe, 39th Cong., 2d Sess. 501 (statement of Rep. Bingham) (1867); see Cong. Globe, 40th Cong. 2d Sess. 646 (1868) (statement of Rep. Bingham)

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(calling the Fourteenth Amendment an “irrepealable covenant” between “the victorious people of the Republic” and the “late insurgents in arms”). 36. Cong. Globe, 39th Cong., 2d Sess. 501 (1867) (statement of Rep. Bingham). 37. Ibid. 38. In the passage quoted in this paragraph, Bingham was referring to the risk that the Supreme Court would declare that a constitutional amendment ratified by three-fourths of the loyal states was not valid. The same argument, though, could (and would) be made against the process used by Congress to obtain those ratifications in the South. 39. Ibid. at 504. 40. Ibid. 41. Ibid.; see Cong. Globe, 40th Cong., 2d Sess. 647 (1868) (statement of Rep. Bingham) (repeating this argument). 42. Cong. Globe, 39th Cong., 2d Sess. 502 (1867) (statement of Rep. Bingham). 43. Ibid. 44. Ibid. 45. Ibid. at 505; see ibid. (“It is intended to hush the cry for blood against the guilty by the power of a sovereign decree, as that was done by the Supreme Power in the case of the first murderer.”). 46. Ibid. 47. “Affairs at the National Capital,” at 4; see “Mr. Bingham against Thad Stevens,” Cincinnati Commercial, Jan. 24, 1867 (stating that the speech was “delivered with that powerful eloquence of which the gentleman is such a master, [and] its effect upon his colleagues must have been marked and convincing”). 48. For example, Bingham supported expanding the mandate of the Freedmen’s Bureau to aid southern whites in economic distress. For a stirring speech on this issue, see Cong. Globe, 40th Cong., 1st Sess. 90 (1867) (statement of Rep. Bingham) (“The unoffending little children are not enemies of your country or of mine; the crime of treason is not upon their souls. Surely, surely they are not to be denied your care.”). 49. Cong. Globe, 39th Cong., 2d Sess. 1214 (1867) (statement of Rep. Stevens). In a related discussion a few years later, Benjamin Butler rejected Bingham’s Reconstruction philosophy because “[a]mnesty means forgetfulness and not forgiveness.” Cong. Globe, 41st Cong., 3d Sess. 204 (1870) (statement of Rep. Butler). Bingham responded that amnesty “may include forgetfulness; it may include oblivion; but, sir, it includes forgiveness.” Ibid. (statement of Rep. Bingham) (taking the view that Congress should liberally exercise its authority under Section Three of the Fourteenth Amendment to rehabilitate former Confederate officials). 50. “Affairs at the National Capital,” at 4 (stating that Stevens attributed Bingham’s opposition to his desire to obtain a judgeship). 51. Cong. Globe, 39th Cong., 2d Sess. 816 (1867) (statement of Rep. Stevens). 52. See ibid. at 817; Beauregard, Bingham, 119; Trefousse, Stevens, 206–7. 53. See Ackerman, Transformations, 195; Shotwell, Driftwood, 214.

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54. See Cong. Globe, 39th Cong. 2d Sess. 1080 (1867) (statement of Rep. Bingham). Supporters of Stevens tried to adjourn the House and stop Bingham’s speech, but he asserted, “I will not submit to this gag; I know all about it.” Ibid. 55. Ibid. (statement of Rep. Bingham); see ibid. (citing authorities to support his point). 56. Ibid. at 1080–81. 57. Ibid. at 1081. 58. Ibid. 59. Ibid. at 1082. 60. See ibid. at 1083. 61. Ibid. at 1210 (statement of Rep. Bingham). 62. Bingham’s proposal was codified as “An Act to Amend ‘An Act to Establish the Judicial Courts of the United States,’” 14 Stat. 385. 63. See Cong. Globe, 39th Cong., 2d Sess. 1210–11 (1867) (statement of Rep. Bingham); see also Ackerman, Transformations, 197 (discussing this proposal). The Fourteenth Amendment also had to be ratified by three-quarters of all the states before readmission could occur. 64. Cong. Globe, 39th Cong., 2d Sess. 1212 (1867) (statement of Rep. Bingham). Bingham’s initial proposal was that the South should have “equal and impartial” voting, which implied that suffrage restrictions not based on race were permissible. See ibid. at 1211. Congress later settled on universal male suffrage as the standard. See Maltz, Civil Rights, 129 (comparing Bingham’s amendment with another that was ultimately adopted). 65. See ibid. at 1081. Later Bingham estimated that about 25,000 whites were disenfranchised in the South. See Cong. Globe, 40th Cong., 1st Sess. 542 (1867) (statement of Rep. Bingham). 66. Cong. Globe, 39th Cong., 2d Sess. 1213 (1867) (statement of Rep. Stevens). 67. Ibid. at 1214. 68. New York Herald, July 11, 1867. 69. See First Reconstruction Act, ch. 153, 14 Stat. 428; Foner, Reconstruction, 122; Trefousse, Johnson, 280. For a thoughtful discussion of the constitutional significance of the First Reconstruction Act, see Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 2012), 80–88. 70. See Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869); Habeas Corpus Act of 1867, ch. 28, 14 Stat. 385. 71. Ch. 154, 14 Stat. 430. The Command of the Army Act, enacted on the same day, provided that General Grant, who was third in the chain of command, could not be relieved without the consent of the Senate and was required to sign all presidential military orders. 72. See Stampp, Era of Reconstruction, 147; Trefousse, Stevens, 208. 73. See Cong. Globe, 41st Cong., 1st Sess. 311 (1869) (statement of Rep. Bingham).

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74. Sixty years later, the Supreme Court declared (in dicta) that the Tenure of Office Act was unconstitutional. See Myers v. United States, 272 U.S. 52 (1926); see also Amar, Unwritten Constitution, 319–27 (discussing the custom established by President Washington). 75. See Cong. Globe, 39th Cong., 2d Sess. app. at 180 (1867). Technically this was not a special session because the act applied to every future Congress, but that was the functional effect of the act. 76. See Ackerman, Transformations, 201–2; see also Cong. Globe, 40th Cong., 1st Sess. 2–3 (1867) (noting the discussion of this problem). 77. See Act of Mar. 23, 1867, ch. 6, 15 Stat. 2. 78. The description of the Second Reconstruction Act comes from two secondary sources along with the statute itself. See Ackerman, Transformations, 202–5; Kyvig, Authentic Acts, 173. 79. In the Fourth Reconstruction Act enacted in 1868, Congress eliminated the minimum participation requirement. See Act of Mar. 11, 1868, 15 Stat. 41. This allowed the vote for the new constitution in Alabama to count even though the participation rate fell short of the 50 percent threshold. See Cong. Globe, 40th Cong, 2d Sess. 2213 (1868) (statement of Rep. Bingham) (stating that holding a second vote there was “the difference between tweedledum and tweedledee. If it be wise or just or proper for this House to provide that seventy thousand votes shall be sufficient next May to adopt and ratify this constitution, it is within the power of this House, today, to say that the seventy thousand who did vote for it last February made it thereby the law of that people”). 80. See “Letter from Hon. John A. Bingham to the Colored Citizens of Lynchburg,” New York Times, May 23, 1867, at 5 (quoting his letter from April 28). 81. Ibid. 82. See Cadiz Sentinel, June 5, 1867. 83. Act of July 19, 1867, ch. 30, 15 Stat. 14. 84. See Ackerman, Transformations, 212–13; Trefousse, Johnson, 288–89; see also Shotwell, Driftwood, 216 (stating that the attorney general “gave the President two opinions which materially hindered the registration of voters and the holding of the elections, in the South”). 85. See Trefousse, Stevens, 215. 86. See Cong. Globe, 40th Cong., 1st Sess. 542–43 (1867) (statement of Rep. Bingham); Guernsey Times, July 25, 1867 (stating that this was “the most eloquent and brilliant effort made in Congress for many years. Members crowded around him as he spoke, and when he closed gave vent to their feelings by applause and congratulations.”). 87. Cong. Globe, 40th Cong., 1st Sess. 542 (1867) (statement of Rep. Bingham). 88. Ibid. at 543; see Cong. Globe, 40th Cong, 2d Sess. 514 (1868) (statement of Rep. Bingham) (observing that the Fourteenth Amendment had received more support “than was ever given by the people to any provision of law ever

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enacted by the Congress of the United States since it was a Congress under your Constitution”). 89. Ibid. 90. See Shotwell, Driftwood, 217. 91. See Beauregard, Bingham, 123; Maltz, Civil Rights, 135. 92. See Kyvig, Authentic Acts, 173 (noting Ohio’s assent in 1867). 93. “The Ohio Campaign,” New York Times, Aug. 28, 1867, at 2. The same speech was also reported, with other excerpts, in the New Hampshire Statesman, Sept. 13, 1867. 94. “The Ohio Campaign,” at 2; see ibid. (calling Democrats “‘dumb dogs’ on the question as to the amendment of the Constitution of the United States”). 95. New Hampshire Statesman, Sept. 13, 1867. 96. Ibid. 97. Ibid. 98. Ibid. 99. “The Ohio Campaign,” at 2. 100. New Hampshire Statesman, Sept. 13, 1867. 101. See Beauregard, Bingham, 123; “Speech of Hon. John A. Bingham at Cleveland,” Summit County Beacon, Sept. 26, 1867 (“We propose to put it into the power of every man, woman, child, black or white, rich or poor, when his rights are invaded, to raise his hand toward the flag, and say, I AM AN AMERICAN CITIZEN”). 102. See Ackerman, Transformations, 218; Beauregard, Bingham, 123; see also Maltz, Civil Rights, 135 (“The suffrage amendment in Ohio not only lost by thirty-eight thousand votes but also proved to be a formidable drag on the remainder of the ticket.”). Ohio did repeal its ratification of the Fourteenth Amendment in 1868 (as did New Jersey), though Congress ruled that these repeals were invalid. See Coleman v. Miller, 307 U.S. 433, 448–49 (1939); Ackerman, Transformations, 233 (noting that Congress had no problem counting former Confederate States as yes votes even though they initially voted no). 103. See Beauregard, Bingham, 123 (“Indeed, twelve of the forty-five Republican counties returned majorities against Negro suffrage.”). 104. Trefousse, Johnson, 299. 105. Letter from John A. Bingham to Elihu B. Washburne, Nov. 9, 1867 (Library of Congress). 106. See Ackerman, Transformations, 217; Stampp, Era of Reconstruction, 147. 107. See Foner, Reconstruction, 143; Stampp, Era of Reconstruction, 148–49. 108. See Friedman, Will of the People, 130; Niven, Chase, 416–17. 109. 74 U.S. (7 Wall.) 506 (1869). 110. See Benedict, Impeachment, 72; Stewart, Impeached, 101–2. 111. Andrew Johnson, Annual Message, Dec. 3, 1867, in Richardson, Messages, 8: 3769. 112. See Shotwell, Driftwood, 221; Stewart, Impeached, 111.

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113. Bingham gave an extended defense of this concept, relying in large part on Article One, Section Eight’s grant of authority for the Congress “[t]o make rules for the government and regulation of the land and armed forces.” U.S. Const., art. I, § 8, cl. 14; see Cong. Globe, 40th Cong., 2d Sess. 513–14 (1868) (statement of Rep. Bingham). 114. See Beauregard, Bingham, 124; letter from John A. Bingham to Amanda Bingham, Feb. 1, 1868 (Bingham Papers) (stating that he had “succeeded fully and completely in all that I desired or sought to accomplish”). 115. See Cong. Globe, 40th Cong., 2d Sess. 483–84 (1868) (statement of Rep. Bingham). 116. Ibid. at 480–81. 117. See ibid. at 482. 118. Ibid. 119. See Friedman, Will of the People, 131; “Mr. Bingham and the Supreme Court,” Daily National Intelligencer, Jan. 17, 1868 (calling Bingham’s speech “one of the boldest and basest attacks upon the Great Judicial Tribunal of the country ever made by a reputable American citizen”). 120. “Mr. Bingham and the Supreme Court.” 121. See Thomas and Hyman, Stanton, 569–70; Trefousse, Johnson, 307. 122. See Trefousse, Stevens, 222; see also Ackerman, Transformations, 221 (“For the first (and only) time in constitutional history, it would not be the President or the Congress or the Court who made the decisive constitutional move. It would be a military man.”). 123. See Benedict, Impeachment, 100–101; Stevens, Impeached, 134. 124. See Stampp, Era of Reconstruction; Thomas and Hyman, Stanton, 584–94. 125. Trefousse, Stevens, 313; see Stewart, Impeached, 102–3 (noting the decline in Stevens’s health the previous autumn). 126. Cong. Globe, 40th Cong, 2d Sess. 1340 (1868) (statement of Rep. Bingham). 127. Ibid. at 1341. A related claim that was also covered by this argument was that the Tenure of Office Act applied only to cabinet members named by Johnson, not ones that he inherited from Lincoln. See Benedict, Impeachment, 106–7; see also Ackerman, Transformations, 215–16 (assessing the competing statutory arguments). 128. Ibid. supp. at 394 (statement of Manager Bingham). 129. Ibid. at 1342 (statement of Rep. Bingham). 130. Ibid. 131. See Stewart, Impeached, 149 (recording the total as 126 to 47). 132. Trefousse, Stevens, 225–26; see U.S. Const., art. II, § 4 (stating the impeachment standard). 133. See Benedict, Impeached, 112; Stewart, Impeached, 153. 134. Beauregard, Bingham, 126. 135. See Stewart, Impeached, 331–41 (quoting the impeachment articles in full).

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136. See Benedict, Impeachment, 113–14; Stewart, Impeached, 161. The other managers were George Boutwell of Massachusetts, John Logan of Illinois, James F. Wilson of Iowa, and Thomas Williams of Pennsylvania. 137. See Benedict, Impeachment, 113; Stewart, Impeached, 161. During the trial, one of Johnson’s lawyers quoted from Butler’s and Bingham’s more acrimonious exchanges to refute the charge that the president’s language was unduly harsh. See Beauregard, Bingham, 127. 138. See Beauregard, Bingham, 125; Benedict, Impeachment, 114. 139. See Benedict, Impeachment, 114; Stewart, Impeached, 162. 140. Cincinnati Commercial, Mar. 5, 1868. 141. See U.S. Const., art. I, § 3, cl. 6 (“When the President of the United States is tried, the Chief Justice shall preside.”); Niven, Chase, 420. 142. Cf. Shotwell, Driftwood, 99 (“Side by side, the stream of life had carried these two men, Stanton and Bingham, from the quiet home life of their country village, to the Capitol, to serve their country in these high places before the world; and to write their names permanently in the history of their times.”). 143. See Ackerman, Transformations, 224; see also Niven, Chase, 417 (noting that the Court heard arguments in McCardle from March 2 until March 5). 144. See Ackerman, Transformations, 225; Friedman, Will of the People, 131. 145. See “An Act to Amend an Act Entitled ‘An Act to Amend the Judiciary Act,’” 15 Stat. 44; Friedman, Will of the People, 132. 146. See Ackerman, Transformations, 226 (noting that this was a six-to-two vote); Friedman, Will of the People, 132–33 (describing the protest of the dissenters). When the Supreme Court decided McCardle a year later, Chief Justice Chase upheld the jurisdiction-stripping law but did not recognize Congress’s plenary power to do so. See McCardle, 74 U.S. (7 Wall.) at 515. 147. See Stewart, Impeached, 193–96. 148. See Cong. Globe, 40th Cong., 2d Sess. supp. at 171–72 (1868) (statement of Manager Bingham); ibid. at supp. 177–78; Stewart, Impeached, 180. 149. See ibid. supp. at 379 (statement of Manager Bingham). 150. Ibid. supp. at 394. 151. See Stewart, Impeached, 213. 152. See Cong. Globe, 40th Cong., 2d Sess. supp. at 379 (1868) (statement of Manager Bingham). 153. See ibid. supp. at 391 (stating that every duly enacted law was “to be executed as a law until the same shall have been repealed by the power that made it or actually reversed by the Supreme Court of the United States”). For the most part, Bingham stuck to the issues in his speech, but at one point he alluded to the allegation that Johnson was drunk when he was sworn in as vice president. See ibid. supp. at 379; Trefousse, Johnson, 189–90 (discussing this incident and stating that Johnson drank whiskey before the ceremony because he was ill). 154. See, e.g., Cong. Globe, 40th Cong., 2d Sess. supp. at 379 (1868) (statement of Manager Bingham); see also ibid. supp. at 381 (“[T]he position assumed for the

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President by all his counsel that he is to judicially interpret the Constitution for himself; that he is to judicially determine the validity of laws.”); ibid. supp. at 384 (noting that if he thought a bill was unconstitutional, the veto was his remedy). 155. Ibid. supp. at 380. In arguing that an act of Congress must be presumed constitutional, Bingham overreached by asserting that there was no “clear, unequivocal decision of the Supreme Court of the United States against the constitutionality of any law whatever enacted by the Congress of the United States—not one.” Ibid. supp. at 391. Since he had discussed Marbury v. Madison the day before, see ibid. supp. at 381, this statement is hard to explain unless the words “clear” and “unequivocal” are doing a lot of work. 156. Ibid. supp. at 384; see ibid. supp. at 391 (“It is in vain the gentlemen say that it is only constitutional laws that bind. That is simply begging the question. The presumption . . . is that every law is constitutional until by authority it is declared otherwise, and the question here is whether that authority is in Andrew Johnson.”). Bingham rejected the argument that the Vesting Clause of Article Two granted any such power to the president. See ibid. supp. at 391 (“[N]o human ingenuity can torture this provision of the Constitution into anything more than a mere designation of the officer or person to whom shall be committed . . . the executive power of the Government.”); see also U.S. Const., art. II, § 1, cl. 1 (“The executive power shall be vested in a President of the United States of America.”). 157. Bingham defended the Tenure of Office Act, but its validity did not matter given his claim that the president must presume all acts of Congress valid until a court said otherwise. 158. Ibid. This was true, but lawyers almost never make this assertion about Jefferson. 159. See ibid. supp. at 387 (“‘Suppose the Congress of the United States should enact a law in clear violation of the express power conferred upon the President, as for example, a law declaring that he shall not be Commander-in-Chief of the Army, a law declaring that he shall not exercise the pardoning power in any case whatever, is not the President to intervene and protect the Constitution?”). 160. See ibid.; ibid. supp. at 392 (making a similar point). 161. See ibid. supp. at 386; see also U.S. Const., art. II, § 4 (“The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.”). 162. Cong. Globe, 40th Cong., 2d Sess. supp. at 386 (1868) (statement of Manager Bingham). 163. Cong. Globe, 35th Cong., 2d Sess. 90 (1858) (statement of Rep. Bingham). 164. Cong. Globe, 40th Cong., 2d Sess. supp. at 403 (1868) (statement of Rep. Bingham). All the statements in the paragraph come from this citation. 165. See ibid. at supp. at 403–4. 166. Ibid. supp. at 403.

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167. Ibid.; see ibid. (“They referred you to the sedition act of 1798, which expired by its own limitation, and talked about its having been a very odious law. I do not know but they intimated that it was a very unconstitutional law. Pray what court of the United States ever decided?”); see McCullough, Adams, 505–6 (describing the act). 168. Cong. Globe, 40th Cong, 2d Sess. supp. at 403 (1868) (statement of Manager Bingham). 169. Ibid. supp. at 404. 170. Ibid. supp. at 406. 171. Stewart, Impeached, 238–39; see Cong. Globe, 40th Cong, 2d Sess. supp. at 406 (1868) (noting the gallery applause). 172. Compare Boston Daily Advertiser, May 7, 1868 (“Mr. Bingham set forth the argument for the prosecution in a clear and masterly manner”), with “The Future of the President—Mr. Bingham,” Daily National Intelligencer, May 8, 1868 (“Mr. Bingham ought not to appear as a lawyer. He knows very little of the profession, and does very little credit to himself in discussing legal topics”). 173. Cong. Globe, 40th Cong, 2d Sess. supp. at 380 (1868) (statement of Manager Bingham). 174. Ibid. supp. at 393. 175. Stewart, Impeached, 275. 176. See Trefousse, Johnson, 326–27. 177. See Stewart, Impeached, 277; Trefousse, Stevens, 234; see also U.S. Const., art. I, § 3, cl. 6 (“[N]o person shall be convicted without the concurrence of two thirds of the members present”). The vote in favor of a conviction was 35–19. 178. See Stewart, Impeached, 277. 179. See Beauregard, Bingham, 129; Trefousse, Johnson, 327. This was the first Republican National Convention that Bingham attended as a delegate. 180. See Stewart, Impeached, 280–81; Trefousse, Johnson, 328. 181. One argument against conviction not discussed in the text is that some senators just did not like Benjamin Wade, who was in the on-deck circle if Johnson was removed from office. 182. See Ackerman, Transformations, 228; Benedict, Impeachment, 137–38. 183. See Stewart, Impeached, 225–27; Trefousse, Johnson, 321–22. 184. See Ackerman, Transformations, 228; Benedict, Impeachment, 138. 185. See Kyvig, Authentic Acts, 174. Of course, the immediate readmission of these states could have added enough Republican senators to tip the balance in favor of a conviction, but that scenario did not come to pass. 186. Chicago Tribune, May 14, 1868. 187. The most thorough (and convincing) analysis of this skullduggery is in Stewart, Impeached, 181–91, 240–49, 284–99. 188. See John F. Kennedy, Profiles in Courage (New York: Harper and Row, 1964), 146–71; Stewart, Impeached, 297–98; see also Trefousse, Stevens, 234 (noting Ross’s vote for acquittal).

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189. See Stewart, Impeached, 298–99 (stating that Peter Van Winkle of West Virginia, Joseph Fowler of Tennessee, James Grimes of Iowa, and John Henderson of Missouri were suspected of trading their votes); see also Trefousse, Johnson, 326 (noting that all four of these senators voted for acquittal). 190. See Cong. Globe, 40th Cong., 2d Sess. 2503 (1868) (statement of Rep. Bingham) (introducing a resolution authorizing an investigation into the allegation that “improper or corrupt means have been used to influence the determination of the Senate upon the articles of impeachment”); see also ibid. at 2670–71 (discussing the issue). 191. See Kyvig, Authentic Acts, 174; see also Ackerman, Transformations, 231 (“In response, the Congressional leadership moved aggressively to recognize the constitutional legitimacy of all seven Southern governments, including Alabama, and thereby put the Fourteenth Amendment over the top.”). 192. See Cong. Globe, 40th Cong., 2d Sess. 3094 (1868) (statement of Rep. Bingham); Maltz, Civil Rights, 140; see also Cong. Globe, 41st Cong., 2d Sess. 1745–46 (1870) (statement of Rep. Bingham) (talking about the details of this statute). 193. 15 Stat. 710. This did not end questions about the Fourteenth Amendment’s ratification, as Oregon repealed its yes vote in the fall of 1868. As late as 1869, Bingham was concerned about getting more southern approvals to put the issue of ratification to rest once and for all. See Cong. Globe, 40th Cong., 3d Sess. 31–32 (1868) (statement of Rep. Bingham). 194. “Address by Hon. John A. Bingham, of Ohio,” Bangor Daily Whig and Courier, July 13, 1868.

Notes to Chapter 9 1. See U.S. Const., amend. XV. 2. See Beauregard, Bingham, 133 (noting his elevation to Judiciary Committee chair); “Woman Suffrage,” New York Times, Jan. 31, 1871, at 1 (reproducing Bingham’s report on behalf of the committee rejecting the argument that the Fourteenth Amendment gave women the right to vote). 3. See Beauregard, Bingham, 130; Cincinnati Commercial, Aug. 10, 1868. 4. See Beauregard, Bingham, 130; letter from Edwin M. Stanton to Zachariah Chandler, Oct. 1, 1868 (Library of Congress); cf. Thomas and Hyman, Stanton, 616 (stating that Stanton’s son also stumped for Bingham). 5. “Speech of John A. Bingham,” Cincinnati Commercial, Oct. 31, 1868, at 1. 6. See ibid. 7. See Beauregard, Bingham, 130. 8. See Ackerman, Transformations, 236; Amar, America’s Constitution, 397. 9. See Amar, America’s Constitution, 397; Foner, Reconstruction, 146. 10. See Foner, Reconstruction, 147; Stampp, Era of Reconstruction, 189. 11. Georgia was excluded for a second time in 1869 after the state legislature expelled all African Americans elected to that body. See Amar, America’s

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Constitution, 400 n*; cf. Kyvig, Authentic Acts, 181–82 (discussing Georgia’s ratification of the Fifteenth Amendment). 12. See Cong. Globe, 40th Cong., 3d Sess. 32 (1868) (statement of Rep. Brooks) (telling Bingham “that the popular voice of a large majority has declared in favor of your removal from this Hall to another branch of the Government”); Kyvig, Authentic Acts, 179 (“[T]he final session of the Fortieth Congress saw the introduction of more than sixty resolutions for a constitutional amendment dealing with suffrage in one way or another.”). There was nothing to the cabinet speculation. 13. See Cong. Globe, 40th Cong., 3d Sess. 726 (1869). 14. See ibid. at 722–23 (statement of Rep. Bingham); see also ibid. at 726–27 (reproducing an exchange between Bingham and other House members about the Fifteenth Amendment). 15. Ibid. at 722 (statement of Rep. Bingham); see Boston Daily Advertiser, Feb. 3, 1869 (stating that Bingham’s concern about religious or property tests was overblown “unless the entire spirit and tendency of American life should be changed”). 16. See Cong. Globe, 40th Cong., 3d Sess. 722 (1869) (statement of Rep. Bingham). The Constitution prohibits the use of religious tests for federal office, but not for state office. See U.S. Const., art. VI, § 3 (“[N]o religious test shall ever be required as a qualification to any office or public trust under the United States.”). 17. See Cong. Globe, 40th Cong., 3d Sess. 727 (1869) (statement of Rep. Bingham); see “The Constitutional Amendment Passes the House by a Two-Thirds Vote,” New York Herald, Jan. 31, 1869, at 1. 18. See Cong. Globe, 40th Cong., 3d Sess. 1426 (1869) (statement of Rep. Bingham); Maltz, Civil Rights, 152; cf. Cong. Globe, 40th Cong., 3d Sess. 1225 (1869) (statement of Rep. Bingham) (stating that New York used a property qualification and New Hampshire had a faith-based limit). Bingham wanted to include education as well but concluded that this could not pass. See ibid. at 1427. 19. See Kyvig, Authentic Acts, 180; Maltz, Civil Rights, 154. 20. See U.S. Const., amend. XV, §§ 1–2. 21. See U.S. Const., amend. XXIV, § 1 (“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.”); 383 U.S. 663 (1966) (invalidating the use of poll taxes in state elections as a violation of equal protection). 22. See Kyvig, Authentic Acts, 181. 23. See Beauregard, Bingham, 133. For example, in 1866, Congress had enacted a law that said there would be no Supreme Court vacancy until the number of justices fell to six, which ensured that President Johnson would get no appointments.

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See Ackerman, Transformations, 239 (describing this court-shrinking statute). This statute was repealed in 1869 to give Grant the opportunity to nominate new justices. See ibid. 24. Cadiz Republican, July 2, 1869. 25. See Beauregard, Bingham, 135. 26. See ibid.; ibid. at 160, 192. 27. See Thomas and Hyman, Stanton, 634–38; see also Shotwell, Driftwood, 100 (“During his last sickness, he was appointed by Grant a Justice of the Supreme Court of the United States. And by a supreme effort, he arose from his sick bed and went to the White House to thank the President.”). 28. See Cong. Globe, 41st Cong., 2d Sess. 292 (1869) (reprinting a heated exchange between Bingham and Butler over the status of Georgia after its second exclusion). In one of these debates, Bingham took a position somewhat similar to the Supreme Court’s view that Congress may not “commandeer” state executive officials to enforce federal law. See ibid. at 283 (statement of Rep. Bingham) (“[I]f there is anything settled under the Constitution of the United States this is settled: that whatever rights are conferred, whatever duties are enjoined under the Constitution of the United States upon the Government of the United States they are to executed, put in force, carried out by its own executive, legislative, or judicial officers without asking the consent or concurrence of any man of any State exercising the functions of a State official.”); see also Printz v. United States, 521 U.S. 898 (1997) (establishing the “anti-commandeering” doctrine). 29. Cong. Globe, 41st Cong. 2d Sess. 717 (1870) (statement of Rep. Bingham); see ibid. at 493–95 (providing Bingham’s address on behalf of Virginia’s petition). 30. Ibid. at 717. 31. See ibid. at 720. 32. See ibid. at 3620–22 (statement of Rep. Bingham). 33. Ibid. at 3620. 34. Ibid. 35. Ibid. 36. Ibid. at 3622. In this passage Bingham was quoting Jefferson’s First Inaugural Address. 37. See Beauregard, Bingham, 136–37. 38. Cadiz Republican, July 1, 1870; see ibid. (“[G]reat corporations controlling millions of money would cheerfully have given tens of thousands for his services; no one has dared to approach him with a bribe.”). 39. Beauregard, Bingham, 137. 40. See Cadiz Republican, Aug. 19, 1870. 41. Newark Advocate, Sept. 30, 1870. 42. See Beauregard, Bingham, 137; Cadiz Republican, Oct. 14, 1870. 43. “Woman Suffrage,” New York Times, Jan. 31, 1871, at 1 (reprinting the Judiciary Committee Report rejecting Woodhull’s petition); see also Lash, “Second Draft,”

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416–18 (discussing this petition). The rest of the quotes in the next paragraph come from the New York Times article. 44. “Woman Suffrage,” at 1 (“We are of the opinion, therefore, that it is not competent for the Congress of the United States to establish by law the right to vote without regard to sex in the several States of this Union without the consent of the people of such States.”). Two members of the committee, including Benjamin Butler, dissented. 45. See Lash, “Second Draft,” 418 (“[T]he Woodhull Report seems at the very least to increase the burden of proof for those who argue in favor of incorporation of the Bill of Rights.”). 46. Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham); see, e.g., Cong. Globe, 40th Cong., 2d Sess. 2462 (1868) (statement of Rep. Bingham) (“The civil and political rights and privileges of citizens of United States of like age, sex, and residence, shall be equally enjoyed.”); Cong. Globe, 39th Cong., 1st Sess. 1293 (1866) (statement of Rep. Bingham) (“There should be no discrimination among citizens of the United States in the several States, of like sex, age, and condition, in the franchises of office.”). 47. Carrie Chapman Catt and Nettie Rogers Shuler, Woman Suffrage and Politics: The Inner Story of the Suffrage Movement (New York: Charles Scribner’s Sons, 1923), 73 (recounting this encounter). Stanton thought that Bingham’s reply was cynical. See ibid. 48. Bingham made yet another inquiry about running for John Sherman’s Senate seat in 1871, but once again nothing came of that, and Sherman was reelected. See letter from John Sherman to John A. Bingham, Mar. 18, 1871 (Bingham Papers) (responding to Bingham’s letter asking if he would run for another term); see also Beauregard, Bingham, 140 (describing this political shadowboxing); letter from E. L. Stevens to John A. Bingham, Aug. 18, 1871 (musing about the possibility of unseating Sherman). 49. See Tyler, “Suspension,” 656; see also Stampp, Era of Reconstruction, 199–203 (describing this reign of terror). 50. See Cong. Globe, 41st Cong., 3d Sess. 1281–85 (1871) (statement of Rep. Bingham) (introducing that Enforcement Act); Beauregard, Bingham, 136 (noting his role in shaping the prior Enforcement Act); Foner, Reconstruction, 195 (describing what those acts did). 51. See Foner, Reconstruction, 185–86; Tyler, “Suspension,” 656–57; see also Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13. The act also authorized the president to suspend the writ of habeas corpus in the South under limited circumstances. See Tyler, “Suspension,” 657–58. 52. See Cong. Globe, 42nd Cong., 1st Sess. app. at 81–86 (1871) (statement of Rep. Bingham); see also Lash, “Second Draft,” 423–30 (discussing this speech). 53. Ibid. app. at 82; see ibid. app. at 83 (“These last amendments—thirteen, fourteen, and fifteen—do, in my judgment, vest in Congress a power to protect the rights of citizens against States, and individuals in States, never before granted.”).

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54. See Civil Rights Cases, 109 U.S. 3 (1883) (establishing the state action doctrine and invalidating the Civil Rights Act of 1875); see also United States v. Morrison, 529 U.S. 598 (2000) (reaffirming the state action limitation on the Fourteenth Amendment). 55. Cong. Globe, 42nd Cong, 1st Sess. app. at 85 (1871) (statement of Rep. Bingham); see ibid. (“If I am not right in asserting that the negative limitations imposed by the Constitution on States can be enforced by law against individuals and States, then the Government was wrong from the Administration of Washington down, and the Supreme Court of the United States was wrong every time this question has come before it.”); ibid. (“Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in States and by States, or combinations of persons?”); cf. Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham) (“[S]uppose any person has acquired property not contrary to the laws of the State, but in accordance with its law, are they not to be equally protected in their enjoyment of it, or are they to be denied all protection?”). 56. Cong. Globe, 42nd Cong., 2d Sess. 1475 (1872) (statement of Rep. Bingham). 57. See Cong. Globe, 42nd Cong, 1st Sess. app. at 84 (1871) (statement of Rep. Bingham). 58. 31 U.S. (6 Pet.) 515 (1832). 59. See Magliocca, Andrew Jackson, 23. 60. See Worcester, 31 U.S. (6 Pet.) at 523. 61. Ibid. at 560–61. 62. See Magliocca, Andrew Jackson, 41–42; see also ibid. at 92 (noting that in the 1840s Salmon Chase attended a sermon that condemned the jailing of Worcester). 63. The Supreme Court currently takes the opposite position. See Employment Division v. Smith, 494 U.S. 872 (1990) (holding that a generally applicable law ordinarily does not violate the Free Exercise Clause even if it significantly burdens religious practice). Assessing whether the Worcester precedent fatally undercuts Smith is a complex inquiry that is beyond the scope of this book. 64. This proposition is buttressed by the connections that many Republicans and abolitionists made between African American and Native American rights. See Magliocca, Andrew Jackson, 88–93. 65. Before Congress recessed, Bingham made a novel point that counties should be constitutionally protected. See Cong. Globe, 42nd Cong, 1st Sess. 798 (1871) (statement of Rep. Bingham) (“There can no more be a State under the Constitution and laws of the several States of this Union without the corporate organization of counties or parishes therein than there can be a United States without organized States; because the counties in the several States are integral parts of the States of the Union, just as the States of the Union are integral parts of the nation. If you destroy either you destroy the whole fabric.”).

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66. Kevin Christopher Newsom, “Setting Incorporation Straight: A Reinterpretation of the Slaughter-House Cases,” Yale Law Journal 109 (2000): 643–744; see Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). 67. “Our Visitors,” Daily Oregonian, July 19, 1871; see letter from John A. Bingham to Emma and Marie Bingham, July 24, 1871 (Bingham Papers) (describing the trip from San Francisco). 68. “Our Visitors.” 69. Ibid. 70. Ibid. 71. See Beauregard, Bingham, 140. 72. See Cong. Globe, 42nd Cong., 2d Sess. 2926 (1872). 73. Ibid. at 2928 (statement of Rep. Bingham). 74. Ibid. 75. Ibid. at 2581 (statement of Rep. Bingham). 76. Ibid. 77. Ibid. at 254 (1871) (statement of Rep. Bingham). 78. Ibid. at 255. 79. See Beauregard, Bingham, 141–42; Shotwell, Driftwood, 227. 80. See Beauregard, Bingham, 142. 81. See ibid.; Shotwell, Driftwood, 227. 82. See Brooks D. Simpson, The Reconstruction Presidents (Lawrence: University Press of Kansas, 1998), 159; see also Foner, Reconstruction, 214 (explaining that the Liberal Republicans rallied behind Horace Greeley as their challenger to Grant). 83. See Beauregard, Bingham, 140 (describing his speech at the Ohio Republican Convention in March 1872, in which he described Liberal Republicans as a Democratic device). 84. See Cadiz Republican, Aug. 8, 1872. Some sources erroneously give the date of the convention as August 8, but that was when the media account of the meeting was published. 85. See Beauregard, Bingham, 142; ibid. (naming the other candidate as Jonathan Updegraff); see also Cadiz Republican, Aug. 8, 1872 (stating that Danford “is a good man—a fair man, in point of qualification; the equal, probably the superior of any other man proposed in the District for the office—save John A. Bingham”). 86. See Beauregard, Bingham, 142. 87. See Shotwell, Bingham, 227 (“One could have the office, first, for three terms, and then the others, in succession, for an equal length of time. The combination succeeded; and so Bingham was defeated, in 1872, for a re-nomination. Seeing that another nomination, under these circumstances, would, for a long time, continue very doubtful for him, he gave up the fight.”); see also Cadiz Republican, Aug. 8, 1872 (giving a blow-by-blow account of the proceedings). The House seat did change hands from county to county over the next several years. See Beauregard, Bingham, 142 (stating that Danford held the seat for three terms, then Updegraff took over for three, and then another man took over for three more).

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88. See Beauregard, Bingham, 142. Supporters of Bingham griped that three delegates pledged to Updegraff switched to Danford even though their county preferred Bingham. See “Nomination of Capt. Danford for Congress,” Cadiz Republican, Aug. 1, 1872 (“The defeat of Mr. Bingham was accomplished by treachery on the part of a few delegates who were instructed to support him.”). 89. Cadiz Republican, Aug. 8, 1872 (quoting the Wheeling Intelligencer). 90. See Bangor Daily Whig and Courier (Bangor, ME), Aug. 3, 1872. 91. Cadiz Republican, Aug. 8, 1872 (quoting the Wheeling Intelligencer). 92. See Beauregard, Bingham, 143; New York Times, Aug. 31, 1872, at 1 (describing one of Bingham’s speeches in Maine); see also Foner, Reconstruction, 216 (stating that Grant received 55 percent of the popular vote in 1872). 93. See Beauregard, Bingham, 143; see also Cadiz Republican, Jan. 13, 1873 (providing Bingham’s testimony about Credit Mobilier). 94. The Credit Mobilier fraud was perpetrated through the purchase of Union Pacific Railroad bonds and shares at par with federal money and the sale of those instruments at their market value, which was much higher. Credit Mobilier had a $47 million contract with the federal government. See Beauregard, Bingham, 143. 95. See ibid.; see also New York Herald, Feb. 19, 1873 (claiming that Bingham made more than $10,000 on his Credit Mobilier shares). 96. See Cadiz Republican, Jan. 23, 1873; cf. “Mr. Bingham and the American Press,” Daily Rocky Mountain News, Mar. 9, 1873 (“He admitted his ownership of the stock, said it was a business transaction between him and Ames, and asserted that he had a perfect right to do as he did. While we cannot agree with Mr. Bingham in this assumption, we must honor him for his courage and truthfulness.”). 97. Ibid.; see letter from John A. Bingham to Amanda Bingham, Jan. 29, 1873 (Morgan Library) (stating that he had “done my whole duty and no wrong to any one”). 98. See Cong. Globe, 42nd Cong., 3d Sess. app. at 136–41 (1873); Beauregard, Bingham, 143 (setting the scene). 99. Cong. Globe, 42nd Cong, 3d Sess app. at 136 (1873) (statement of Rep. Bingham). 100. Ibid. app. at 137. 101. See ibid. app. at 138. 102. Ibid. app. at 138–41 (statement of Rep. Bingham). 103. Ibid. app. at 140 (statement of Rep. Bingham). 104. Ibid. at 1833. 105. See Beauregard, Bingham, 145. This act would probably be unconstitutional today under the Twenty-Seventh Amendment. See U.S. Const., amend. XXVII (“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of the Representatives shall have intervened.”). 106. See “Hon. John A. Bingham, United States Minister to Japan,” Leslie’s Illustrated Newspaper, June 21, 1873, at 241; Georgia Weekly Telegraph and Georgia Journal and Messenger, June 24, 1873; see also Nation, June 12, 1873, at 393 (criticizing the

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appointment); cf. “A Reproof to the Ghouls,” New York Times, Apr. 20, 1879, at 2 (quoting a speech by a critic of Mary Surratt’s execution who said that Bingham “was driven from Congress in disgrace as one of the Credit Mobilier bribe takers, and sought refuge in Japan”).

Notes to Chapter 10 1. See Beauregard, Bingham, 147; letter from James A. Garfield to John A. Bingham, June 3, 1873 (“Permit me to congratulate you sincerely on your appointment as Minister to Japan.”) (Bingham Papers); letter from John A. Bingham to James A. Garfield, June 6, 1873 (thanking Garfield) (Library of Congress). Prior to Bingham’s appointment, American diplomats in Japan were of lower rank. 2. See Aynes, “Continuing Importance,” 611 (“It was a part in which he championed the rights of the Japanese against imperialism. It was a part of his life in which he won the friendship of the Chinese Ambassador and argued that [the U.S.] government should apply the principles of the Fourteenth Amendment to the Japanese. It was an extension of his life’s work.”). 3. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). The decision was issued in April 1873. 4. Ibid. at 57–59. 5. See Niven, Chase, 449. 6. Slaughter-House, 83 U.S. (16 Wall.) at 73–76. 7. There is nothing to indicate that Bingham supported the view that the Fourteenth Amendment protected a “liberty of contract.” See Lochner v. New York, 198 U.S. 45 (1905). 8. Slaughter-House, 83 U.S. (16 Wall.) at 79. 9. Ibid. at 79–80. 10. See ibid. at 118–19 (Bradley, J., dissenting) (listing freedom of speech, freedom of the press, jury trial, peaceable assembly, and freedom from unreasonable searches and seizures as part of the Privileges or Immunities Clause). 11. Walker v. Sauvinet, 92 U.S. (2 Otto.) 90, 92 (1876). 12. United States v. Cruikshank, 92 U.S. (2 Otto.) 542, 554 (1876). For an account of the riot that led to Cruikshank, see Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt, 2008). 13. 163 U.S. 537 (1896) (upholding racial segregation in railroads as not inconsistent with the Fourteenth Amendment). 14. At one point, Bingham said that while “colored citizens are equal in rights with every other class of citizens in America, I am unwilling to set them above every other class of citizens by amending the Constitution exclusively in their interest.” Cong. Globe, 40th Cong., 3d Sess. 1427 (1869) (statement of Rep. Bingham). Of course, amending the text in favor of one race is not the same as reading the Equal Protection Clause to permit the use of race by the state under certain conditions. Bingham did support the Freedmen’s Bureau, which for a time aided only

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the freed slaves, but he never explained why he thought that was constitutional. On the issue of disparate impact, Bingham said once that if a state provided that no citizen “shall vote unless such citizen shall be able to read the English language,” that would not “operate to the exclusion of her enfranchised black population who come up to that standard.” Cong. Globe, 39th Cong., 1st Sess. app. at 298 (1866) (statement of Rep. Bingham). This quote, though, was not about Section One of the Fourteenth Amendment, and thus cannot be treated as support for the Court’s holding that the Equal Protection Clause requires discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976). 15. For example, Bingham received copies of the Congressional Record and some American newspapers while he was in Japan. See Payson J. Treat, Diplomatic Relations between the United States and Japan, 1853–1895 (Gloucester, MA: Peter Smith, 1963), 1: 527. 16. In 1877, his son-in-law said that there was a rumor that Bingham was on the short list for a Supreme Court nomination. See letter from Samuel R. Frazier to John A. Bingham, Mar. 16, 1877 (Morgan Library). I can find no corroboration for this claim. 17. See Beauregard, Bingham, 148. 18. See ibid. at 147–48; see also Shotwell, Driftwood, 232 (“Upon the eve of his departure for Japan, the people of his home town united, regardless of politics or party, in giving him a testimonial banquet.”); “Minister Bingham,” New York Times, Aug. 3, 1873, at 5 (providing of summary of his remarks at the dinner). 19. See Beauregard, Bingham, 149. The lease can be found in the Bingham Papers. 20. See ibid. The account of Bingham’s effort to hire Lucas was recounted in a speech Lucas gave at a memorial for Bingham. See toast of William H. Lucas, Oct. 5, 1901 (Harrison County Historical Society). 21. See Beauregard, Bingham, 149; Cadiz Republican, Aug. 14, 1873. 22. See Beauregard, Bingham, 149; Treat, Diplomatic Relations, 1: 528. 23. See Treat, Diplomatic Relations, 1: 527. 24. See Beauregard, Bingham, 150. 25. See Marius B. Jansen, The Making of Modern Japan (Cambridge: Harvard University Press, 2000), 63–95 (describing the foreign policy in the Tokugawa era). The shogun was the emperor’s general, but in this period the emperor was only a figurehead. 26. See ibid. at 274–79; Shotwell, Driftwood, 228 (“[I]t was only as late as 1854, less than a score of years before Bingham’s appointment, that Japan had opened her ports even to Great Britain and the United States.”). 27. See Beauregard, Bingham, 151; Jansen, Modern Japan, 427. The Meiji government later suggested that Bingham serve as a judge on a unified extraterritorial court (instead of each colonial power having its own), but that proposal never went anywhere. See “Bingham as a Japanese Judge,” Cincinnati Commercial, Dec. 9, 1881. 28. See Jansen, Modern Japan, 334.

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29. See letter from John A. Bingham to President Ulysses S. Grant, Feb. 23, 1874 (announcing this plan) (Morgan Library); see also letter from John A. Bingham to President Rutherford B. Hayes, Sept. 8, 1877 (explaining his policy). Bingham’s letters to Hayes can be found in the Rutherford B. Hayes Library. 30. See Beauregard, Bingham, 157–58. 31. See ibid. at 152–53 (providing some examples involving hunting in temple areas and the payment of custom duties in error). 32. See Treat, Diplomatic Relations, 1: 527 (describing their relationship); see also “Treating with Japan,” New York Times, Sept. 28, 1885, at 5 (noting Bingham’s friction with his European rivals). 33. See Beauregard, Bingham, 161. 34. See ibid. at 154; Treat, Diplomatic Relations, 1: 543; Inter Ocean, July 16, 1874 (discussing Bingham’s role in this affair). 35. See Beauregard, Bingham, 154; Treat, Diplomatic Relations, 1: 545. 36. See Beauregard, Bingham, 154–55; Treat, Diplomatic Relations, 1: 545–46. 37. See Beauregard, Bingham, 155–56; Treat, Diplomatic Relations, 1: 547–57. 38. “Bingham in Japan,” New York Times, Mar. 5, 1875, at 12. 39. In 1879, Bingham sent President Hayes eight lotus roots with detailed instructions on how to care for them. See letter from John A. Bingham to President Rutherford B. Hayes, Oct. 10, 1879. 40. See Beauregard, Bingham, 156. 41. See ibid.; ibid. at 192; see also letter from John A. Bingham to Ainsworth Spofford, June 17, 1897 (asking the Librarian of Congress to give his grandson a job) (Morgan Library). None of Bingham’s grandchildren had offspring. Accordingly, he (like Lincoln) has no direct descendants. I thank Charles Wallace for confirming this point for me. 42. See Ackerman, Transformations, 247; Foner, Reconstruction, 221. 43. See letter from John A. Bingham to Rutherford B. Hayes, July 24, 1876 (congratulating Hayes on his nomination); cf. letter from John A. Bingham to Rutherford B. Hayes, Oct. 23, 1870 (“Mrs. Bingham is away and the day draws near when I must take Marie back to school, so I must deny myself the pleasure of banquetting [sic] at your generous board.”). 44. Letter from John A. Bingham to Rutherford B. Hayes, July 24, 1876. 45. See letter from Rutherford B. Hayes to John A. Bingham, Sept. 5, 1876 (“The result is in much doubt, simply because the times are so hard, and the cry for change is so popular.”). 46. See Foner, Reconstruction, 242; Stampp, Era of Reconstruction, 210; see also Ackerman, Transformations, 247 (“Tilden was deprived of the White House by the extraconstitutional Electoral Commission convened to resolve disputed returns from the three Republican states remaining in the South.”). 47. See Ackerman, Transformations, 248; Foner, Reconstruction, 244. 48. Letter from John A. Bingham to President Rutherford B. Hayes, June 4, 1877. 49. See Beauregard, Bingham, 162.

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50. See letter from John A. Bingham to William M. Evarts, Aug. 8, 1879 (National Archives). Evarts was the secretary of state for Hayes, which was a curious twist given that he served as one of Andrew Johnson’s lawyers during the impeachment trial. 51. See letter from John A. Bingham to William M. Evarts, Jan. 21, 1880 (National Archives). 52. See Beauregard, Bingham, 160. 53. See ibid. In 1883, Lucinda’s widower moved back to the United States and remarried. See ibid. 54. Cadiz Republican, Jan. 2, 1879. 55. New Athens Courier, Jan. 10, 1879; see letter from President Hayes to John A. Bingham, Jan. 12, 1879 56. See letter from Ulysses S. Grant to John A. Bingham, Nov. 16, 1879 (Morgan Library) (thanking Bingham for his hospitality). 57. See Beauregard, Bingham, 167; see also Millard, Destiny of the Republic, 42–47 (describing the Republican National Convention that chose Garfield). 58. See letter from James A. Garfield to President Hayes, Feb. 7, 1881 (Library of Congress); see also Simpson, Reconstruction Presidents, 226 (noting Garfield’s victory over Winfield Scott Hancock). 59. For a compelling (and terribly sad) account of Garfield’s death, see generally Millard, Destiny of the Republic. 60. Chester A. Arthur, Annual Message, Dec. 4, 1883, in Richardson, Messages, 10: 4762 (“This Government is disposed to concede the requests of Japan to determine its own tariff duties, to provide such proper judicial tribunals as may commend themselves to the Western Powers for the trial of causes to which the foreigners are parties, and to assimilate the terms and duration of its treaties to those of other civilized States.”). 61. See letter from John A. Bingham to William A. Frelinghuysen, Oct. 7. 1884 (National Archives); see also Beauregard, Bingham, 172 (describing the financial woes of the delegation). 62. See Beauregard, Bingham, 174. 63. See ibid. 64. See Civil Rights Cases, 109 U.S. 3 (1883). Justice John Marshall Harlan, who was the only dissenter in the Court’s decision to uphold racial segregation in Plessy v. Ferguson, was also the only dissenter in the Civil Rights Cases. 65. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (upholding the constitutionality of the Civil Rights Act of 1964). 66. James G. Blaine, Twenty Years in Congress: From Lincoln to Garfield (Norwich, CT: Henry Bill, 1884), 1: 328. 67. See Beauregard, Bingham, 175. 68. See San Francisco Bulletin, Aug. 8, 1885. 69. See Beauregard, Bingham, 175–76; ibid. at 193.

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70. “John A. Bingham Has a Talk upon Japanese Matters,” San Francisco Call, Aug. 9, 1885. 71. Ibid. 72. Ibid. 73. Cincinnati Commercial Gazette, May 1, 1895, at 4. 74. See Shotwell, Driftwood, 231. All the quotes in this paragraph come from this page. 75. Letter from Roscoe Conkling to John A. Bingham, Dec. 25, 1880 (Morgan Library).

Notes to Chapter 11 1. Bingham did have an operation for an unknown ailment at the end of 1885. See letter from Dr. C. G. Davis to John A. Bingham, Nov. 4, 1885 (describing the result of the procedure) (Morgan Library). One source that describes Bingham’s financial plight is an unpublished account held by the Harrison County Historical Society. 2. According to an unpublished narrative of Bingham’s dotage (and according to local lore), Marie and Emma Bingham often refused to eat together and spent lavishly on clothes. See Beauregard, Bingham, 189 & n.56 (citing interviews with longtime Cadiz residents). None of his children left behind any personal reminiscences. 3. See Cong. Rec., 55th Cong., 2d Sess. 3583 (1898). 4. 176 U.S. 581 (1900). 5. See Cadiz Republican, Oct. 8, 1885 (stating that the rally was held on October 1). All the quotes from this speech come from this issue of the paper. 6. Ibid. 7. See Beauregard, Bingham, 180–81; letter from Mary A. Brinkeroff to John A. Bingham, July 20, 1886 (describing one of these pro bono cases) (Morgan Library). 8. See Beauregard, Bingham, 179. 9. Milton Ronsheim wrote an unpublished account that describes these efforts (Harrison County Historical Society). 10. See Beauregard, Bingham, 179. Bingham also went to the Ohio Republican Convention in 1887 and to a local party meeting where he endorsed an unsuccessful candidate for Congress. See ibid. at 179–80. In 1896 he backed his distant cousin William McKinley for President. “Not a Bolter,” Morning Oregonian, Oct. 24, 1896 at 8 (quoting a letter to the editor from his nephew Edward W. Bingham). 11. Shotwell, Driftwood, 175. 12. Howe, Historical Collections, 1: 889–91. This description claimed that Bingham had blue eyes, in contrast to two other accounts that said that he had brown or green eyes. 13. See Beauregard, Bingham, 189. The probate records of Bingham’s estate indicate rent paid by W. H. Gable, the father of Clark Gable.

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14. Ibid. at 187 & n. 46 (citing the death certificate in Harrison County). 15. See Beauregard, Bingham, 189. 16. Cadiz Republican, May 17, 1892 (quoting an article in the Rochester Post Express). 17. Cincinnati Commercial Gazette, May 1, 1895, at 4. All the quotes in this paragraph come from this article. 18. See Beauregard, Bingham, 184. 19. Cadiz Sentinel, Feb. 20, 1896. 20. The story in this paragraph comes from William H. Lucas’s toast honoring Bingham in 1901 (Harrison County Historical Society). 21. The last line is a paraphrase of the New Testament. See John 14:2. 22. The probate testimony on Bingham’s will establishes this fact (Harrison County Historical Society). 23. See Beauregard, Bingham, 189. 24. See Cong. Rec., 55th Cong., 2d Sess. 3583 (1898) (“A bill for the relief of John A. Bingham”). The other quotes in this paragraph come from this citation. 25. Ibid. (statement of Rep. Talbot); see ibid. at 3584 (“Here is a claim of a pension of $50 a month for a man who never did any military service whatever, who was never under the fire of a gun, never smelt any gunpowder, never endured any hardships whatever.”). 26. Ibid. at 3583 (statement of Rep. Ray). 27. Ibid. at 3584 (statement of Rep. Danford). 28. Ibid. 29. Ibid. at 3585 (statement of Rep. Northway). 30. See ibid. at 3586; see also Beauregard, Bingham, 189 (noting that President McKinley signed the pension bill in 1898). 31. This anecdote comes from an unpublished personal account by someone who knew the Bingham family (Harrison County Historical Society). 32. The Court’s decision to reject incorporation at this time was driven by a complicated mix of doctrinal and political forces. For one perspective on why this happened, see Gerard N. Magliocca, “Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?,” Minnesota Law Review 94 (2009): 102–39. 33. See Maxwell v. Dow, 176 U.S. 581, 581–82, 602 (1900). 34. Ibid. at 587. 35. Ibid. at 601. Justice Harlan was the lone dissenter in Maxwell and embraced Bingham’s view on incorporation. See ibid. at 614 (Harlan, J. dissenting) (accusing the Court of taking the view that “the protection of private property is of more consequence than the protection of the life and liberty of the citizen”). 36. That shift began in the 1920s, accelerated in the 1960s, and was still ongoing in 2010. See McDonald v. Chicago, 561 U.S. 3025 (2010) (incorporating the Second Amendment against the states). 37. See Cadiz Republican, Mar. 22, 1900 (noting his death).

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38. See Beauregard, Bingham, 190; Shotwell, Driftwood, 232. 39. Ibid. at 191. The gravestone is still visible in Cadiz at the Union Cemetery. 40. See Cadiz Republican, Nov. 1, 1900 (describing the auction). This sale may explain why Bingham’s papers are so incomplete.

Notes to the Conclusion 1. Enoch Powell, Joseph Chamberlain (London: Thames and Hudson, 1977), 151. 2. See Chicago, Burlington, and Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897) (holding that the Due Process Clause of Section One should be read as applying the Takings Clause to the states); see also U.S. Const., amend. V (“[N]or shall private property be taken for public use, without just compensation”). 3. Cong. Globe, 40th Cong., 2d Sess. 2213 (1868) (statement of Rep. Bingham). 4. Cong. Globe, 39th Cong., 1st Sess. 1094 (1866) (statement of Rep. Bingham). 5. The specific phrases that Bingham chose were not unimportant, but a Fourteenth Amendment with some different language might have been interpreted in a similar way. One can say the same thing about what the Supreme Court would have done in the absence of a Fourteenth Amendment (in other words, the justices could have used other constitutional provisions to reach similar results), though there is a point beyond which constitutional language cannot be stretched. 6. Walter Issacson, Benjamin Franklin: An American Life (New York: Simon and Schuster, 2003), 459. 7. For a powerful expression of this long-standing conventional wisdom, see Sir Winston Churchill, The Great Republic: A History of America (New York: Random House, 1999), 222 (“Loving the Negro less than they hated his master, these ill-principled men wanted to humiliate the proud Southern aristocracy, whom they had always disliked, and at whose door they laid the sole blame for the Civil War.”). 8. See Beard and Beard, American Civilization, 112. 9. The best article refuting Beard’s thesis is Howard Jay Graham, “The ‘Conspiracy Theory” of the Fourteenth Amendment, Yale Law Journal 48 (1938): 171–94. 10. See, e.g., Curtis, No State Shall, 120 (pointing out that one of these scholars who rejected incorporation—Raoul Berger—“set out to prove that Bingham was a legal moron”). 11. See Beauregard, Bingham, 193. 12. Cadiz Republican, Oct. 10, 1901.

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index

Note: Italicized page numbers indicate illustrations. abolitionist constitutionalism, 16–19 abolitionist movement: congressional leaders of, 42; early exposure to, 5, 8–9, 10, 12–13; legal argument of, 11, 16–19; violence against, 17–18. See also specific societies Adams, John Quincy, 42, 204n51 Adamson v. California (1947), 243n3 African Americans: Bingham’s appeal to, 179; Bingham’s representation of, 24–25; citizenship denied to, 56–57, 60; at college with Bingham, 11, 14–16; Democratic slurs against, 52; educational discrimination case of (Conn.), 17; situation in 1900, 185; voting and other rights denied to, 63–65, 231n114; voting rights for, 90, 113, 137, 140– 41, 155–56; as witnesses in conspiracy trial, 240n77. See also equal rights; slavery Alabama constitution, 246n79 aliens (strangers): constitutional protections for, 84, 112, 127, 249n99; freedom of speech as right of, 84; voting rights and, 62, 119–20 Amar, Akhil Reed, 62 ambassadorship in Japan (Bingham): activities in, 170–73, 174–75, 271n39; appointment for, 166, 167; reflections on, 176–77; success of, 175–76 amendments, constitutional: First, 17–18; Third, 230n103; Fifth, 94 (see also Due Process Clause); Sixth, 94; Seventh, 169; Thirteenth, 88, 109, 129, 186, 189; Seventeenth, 206n79. See also Fifteenth Amendment; Fourteenth Amendment American Anti-Slavery Society, 9 American Insurance Company v. Canter (1828), 53–54, 57 Ames, Oakes, 165 Amistad case, 225n23 Anti-Masonic Party, 5–6, 9–10 Anti-Nebraska Party. See Republican Party

Appeal of the Independent Democrats in Congress (Giddings), 42 Arkansas constitution, 151–52 Arnold, Samuel, 90, 100–101 Arthur, Chester, 175 Articles of Confederation (1781), 116 Ashtabula Sentinel, 85 assassination. See conspiracy Atzerodt, George, 90, 99–100, 103, 104, 109 Bank of the United States, Second, 9 Banks, Nathaniel, 45, 212n39 Bank Veto (by Jackson), 9–10 Barron v. Baltimore (1833), 17–18, 117, 122, 218n140 Basfield, Titus, 11, 14–16, 197n29 Beard, Charles, 187 Beauregard, Erving E., 192n2, 193n9, 197n29 Beauregard, P. G. T., 77 Bill of Rights: ambiguity in references to, 249n104; extended to all states, 2, 108, 112, 113, 116, 122, 127, 187; first use of term, 114–15; inapplicable in wartime, 79–80, 84–85, 89; not extended to all states, 168– 69; right to sit on jury, 251n133; “unequal state” reading of, 54–56. See also specific amendments Bingham, Amanda (wife), 26; childhood, 9; death, 178, 180; description, 25–26; grandchildren, 26, 157, 173, 175, 271n41; homes, 31–32; marriage, 25–26; in Tokyo, 167, 170–71; travels, 67, 162–63, 224n11 Bingham, Emma (daughter), 31, 87, 170, 178, 180 Bingham, Esther Bailey (mother), 5, 6, 192n3 Bingham, Henry (son), 41 Bingham, Hugh, 5 Bingham, Hugh, Jr., 5 Bingham, Hugh, III (father), 5–6, 12, 193n8, 193n11 Bingham, Jessie (daughter), 58, 87

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argument in, 99–102, 241n94; Bingham’s defense of, 106–7; charges in, 98–99, 239n75; criticism of, 104–6, 107; defendants’ challenge in, 237n35; executions after, 104; Mary Surratt’s case in, 3, 102–4, 241n106; military commission for, 92–98, 237n35, 237n37, 237nn32–33, 238n39, 238n46, 239n71 The Conspirator (film), 236n22 Constitutional Convention (1787), 111, 186 constitutionalism, abolitionist, 16–19. See also U.S. Constitution Corfield v. Coryell (1823), 117–18, 121 corporations, 251n134 Corwin, Thomas, 207–8n94 Corwin Amendment, 74, 75–76 Cox, Samuel, 83 Credit Mobilier, 154, 165–66, 268n94 Custer, Elizabeth B., 215n91 Custer, George Armstrong, 49–51, 50 Daily National Intelligencer, 47 Danford, Lorenzo, 164–65, 183, 268n88 Davis, Jefferson, 50, 83, 104 Davis, Reuben, 60 Declaration of Independence, 35, 47, 65, 227n56 Democratic Party: attempts to repeal Fourteenth amendment, 140, 257n102; Copperheads of, 83–84; divisions in, 59, 61–62, 70–71, 104; hostility to, 10; Johnson’s campaigning for, 124–25, 127; sectionalism of, 69. See also elections; and specific leaders Dewey, Chauncey, 19, 23, 24 disparate impact, 270n14 District of Columbia: attempts to end slavery in, 38; Bingham’s homes in, 42, 77, 224n11; end of slave trade in, 80–81, 207n84; slaveowners compensated in, 231n112; turkey sales in, 49 Douglas, Stephen A., 39, 59, 70, 71 Dred Scott v. Sandford (1857): Bingham’s dismissal of, 69–70, 143; dissent in, 195n37; findings and implications of, 53, 56–57, 60; hearings, 51, 94; overruled by Fourteenth Amendment, 121 Due Process Clause: aliens and, 249n99; conspiracy trial and, 93–98; different constructions of, 16–17, 57, 199n50; Lecompton Constitution and, 59–60; in peace vs. wartime, 79–80, 84–85, 89; presence of slaves contrary to, 44–45; women’s rights under, 160 Duncan, Mary Ann, 192n3 Early, Jubal, 87 Eckley, Ephraim, 221n186, 226n37

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203n38; Mary Surratt’s clemency petition rejected by, 103, 107; military trial ordered for conspiracy, 92, 93; planned assassination of, 90, 109; Reconstruction views of, 109, 244n6; Stanton dismissed by, 143–44, 148–49; as vice president, 88, 259n153. See also Johnson impeachment trial Johnson, Reverdy, 94–95, 95, 237n35, 237n37, 244n17 Johnson impeachment trial, 148; acquittal, 151–52, 261n181, 261n185; articles for, 142, 144, 145; closing argument, 147–51; context of, 131; managers of, 144, 146, 259n136; proceedings, 145, 146–47 Joint Committee on Reconstruction: first (military) plan considered, 136; members of, 108, 111, 244n17; states’ readmission discussed, 123–24; voting rights compromise of, 112–13 Jones v. Van Zandt (1847), 205n55 Jordan v. Smith (1846), 24–25 Judiciary Committee (House): Bingham’s role in, 66, 77, 156; emergency war legislation of, 77–78; issues before (1869–73), 154; Johnson’s impeachment and, 131, 142; women’s suffrage issue and, 159–60 jurisdiction-stripping, 4, 134–35, 142–43, 254n38, 259n146 Kansas: Bingham’s speeches on, 45–49, 213n55; Lecompton Constitution and, 59–60, 222n201; questions about, 44; statehood and population of, 220–21n180; violence in, 51 Kansas-Nebraska Act (1854): Bingham’s arguments against, 39–41, 44; call for repeal of, 210n20; central question in, 48; passage of, 39; Pierce’s defense of, 53; Taney’s crippling of, 57 King, Martin Luther, Jr., 4, 186 Ku Klux Klan, 147, 154 Ku Klux Klan Act (1871), 122, 161–62 Lash, Kurt, 247n68, 248n74 Lecompton Constitution, 59–60, 220– 21n180, 222n201 Lee, Robert E., 81, 90, 239n71 Legal Tender Act (1862), 80 Liberty Party, 29 Lincoln, Abraham, 76; assassination of, 90, 99 (see also conspiracy); Bingham’s encounters with and support for, 66, 75–77, 81, 92, 181, 228n68; Custer’s position and, 51; elections of, 61, 70–71, 87–88; on Fugitive Slave Act, 67; on Lee’s surrender, 90; positions offered to Bingham, 85, 86, 87, 234n179; on slavery

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Simpson, Matthew (Methodist bishop), 8–9 Sixth Amendment, 94 Slaughter-House Cases (1873), 167–69 slavery: arguments against extension of, 30–31, 37, 38, 40, 206n74; Bingham’s literary society speech on, 35–37; confidence in demise of, 48, 70–71; Constitution and territorial issues concerning, 40, 44–45, 53–57; ended in D.C., 80–81, 207n84; firstperson account of, 14–15; Kansas “code” on, 46–47. See also abolitionist movement; African Americans; Fugitive Slave Act; Kansas-Nebraska Act Smith, William, 67–68, 224–25n15 South (southern states): debates about conditions for readmission, 108–9, 123–24, 129–38, 152, 157–58, 255n63, 262–63n11; limits of law in changing, 186–87; military rule considered for, 130–31, 252n16; “Once a State, always a State” argument of, 111; reorganization of disorganized, 138–39; secession debates in, 72–73; vigilantism in, 161–62; voting and ratification process in, 138–39, 151–52. See also Confederacy; Reconstruction South Carolina constitution, 151–52 Spangler, Edman “Ned,” 91, 101 Speed, James, 93 Stanton, Edwin M., 22; abolitionist stance of, 21; background, 8, 24, 86, 201n13; Bingham’s debate with, 21–23, 201n14; Bingham’s relationship with, 155, 230nn99–100; Booth’s diary and, 106; cabinet position for, 79, 131, 138, 141; Chase’s relationship with, 205n56; conspiracy trial lawyers and, 92; Custer’s position and, 51; death, 157; impeachment trial and, 146, 147; Johnson’s removal of, 143–44, 148–49 Stanton, Elizabeth Cady, 160 states: counties in relation to, 266n65; obligations of, 121–22. See also South (southern states); territories; and specific states states’ rights: conditions in right of revolution by, 73–74; contract and property rights regulation as, 167–69, 248n71; Corwin Amendment and, 74, 75–76; debates about, 18; limitations on, 222–23n210; “unequal state” reading of, 54–56; voting regulation as, 65, 123, 139 Stevens, Thaddeus, 123, 145, 147; background, 6; Bingham compared with, 82, 183, 253n23; on Cameron, 79; death, 155; on Fourteenth Amendment, 128; impeachment trial and, 143–44; radicalism of, 72, 141;

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Wasson, Marie Bingham (daughter). See Bingham, Marie Webster, Daniel, 10, 179 Weld, Theodore Dwight, 16–17 West Virginia, statehood of, 83 Whig Party: abolitionist tensions in, 20, 29, 30; Bingham’s father and uncle in, 6, 8; Bingham’s role in, 21–23, 27, 29– 30, 38, 201n14, 209n124; demise of, 37–38, 41, 43; platforms of, 30– 31, 38 White, Joseph, 82, 88 white supremacy, 16, 109, 140–41 Wildenthal, Bryan H., 232n130 Williams, George, 111 Williams, Thomas, 259n136 Wilmot, David, 206n74 Wilson, James F., 259n136 women’s rights, 65, 103, 159–60 Woodhull, Victoria, 159, 160 Worcester v. Georgia (1832), 9–10, 54, 162, 195n34

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about the author

Gerard N. Magliocca is the Samuel R. Rosen Professor at Indiana University Robert H. McKinney School of Law. He is the author of three books on constitutional law, and his work on Andrew Jackson was the subject of an hour-long program on C-Span’s Book TV.

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