The "conspiracy theory" of the fourteenth amendment by howard jay graham t


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Three major speeches are found which shed light on these important matters. In 1856,68 in 1857,69 and again in 1859,70 Bingham outlined views which not only clear up the obscurities we have noted in his later speeches but which go far toward solving the deeper problems of his motivation. Carefully checked, these three speeches reveal that Bingham did in truth conceive of due process as a limitation upon the substance of legislation—that he so conceived it as early as 1856. Yet they give no indication that he regarded corporations as “persons,” nor do they indicate that his use of the due process clause was inspired by any solicitude for corporate rights. On the contrary, it appears that Bingham in his third speech in 1859 cited the due process clause of both the Fifth Amendment and the Northwest Ordinance, together with the comity clause—in short, the very clauses which seven years later he used in his final draft of Section One—as having been violated by a section in the Oregon Constitution71 which provided:

“No free Negro or mulatto not residing in the 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...”

This evidence obviously suggests that free Negroes and mulattos—natural “persons,” rather than corporations—were the original objects of Bingham’s solicitude. As his speeches and drafts in 1866 give evidence of having been based upon his speech of 1859, the question necessarily arises whether Negroes rather than corporations were still the sole object of his concern at the later date.

Read in their social and historical context, Bingham’s speeches not only reveal how he came to focus upon the due process clause, but how he came to read into it this revolutionary substantive meaning. It was on March 6, 1856—exactly one year before Chief Justice Taney’s opinion in the Dred Scott case—that Bingham, making his maiden speech in the House,72 argued that laws recently enacted by the Kansas (Shawnee Village) legislature, declaring it a felony even to agitate against slavery, deprived “persons of liberty without due process of law, or any process but that of brute force.” As this speech was delivered just two weeks after the Supreme Court’s decision in the major case of Murray v. Hoboken Land and Improvement Company,73 wherein counsel in arguing procedural questions had cited such germinal substantive cases as Hoke v. Henderson74 and Taylor v. Porter,75 and wherein Justice Curtis had distinguished in his opinion between legal process and due process with regard to procedure,76 the presumption is that Bingham, seeking for a constitutional clause on which to hang his political and ethical opinions, appropriated Curtis’ distinction and carried it over from procedure to substance. The fact that the Kansas laws had simply defined the felonies, and had not interfered with the procedural rights of the accused, makes it plain that Bingham’s citation could have been made only in a substantive sense.77

The character and circumstances of Bingham’s original application of the due process clause raise the question of whether he could have been the first—or among the first—to employ it as a weapon in the slavery debates, and whether, accordingly, his action did not in some manner determine the Republican Party’s heavy reliance upon “due process of law” just three months later in its platform of 1856.78 Satisfactory answers to these two questions must necessarily wait a careful search of voluminous records, but meanwhile several fragments of evidence point in Bingham’s direction: (1) Bingham was colleague and protégé of Joshua Giddings, abolitionist Congressman from Ohio who in 1856 served as an influential member of the Republican platform committee, and who drafted the planks in which the due process clause appeared.79 (2) While Giddings is known to have made use of due process in his speeches after 1856,80 the writer has found no instance of his having done so earlier,81 thus suggesting that Bingham’s usage antedated Giddings’, and that it may, therefore, even have inspired it. (3) Philomen Bliss, another Republican and Ohio colleague of Bingham in the 34th Congress, is known to have used the due process clause in several speeches in 1856 and 1857,82 but in each instance it was after a similar usage by Bingham. Bingham therefore is the earliest known user, and this fact, together with his persistence, and the apparent tendency for the early usage to center in the Ohio delegation, suggests that he may well have been the evangel of due process in the modern substantive sense.

Evidence indicates that Bingham, having discovered due process of law, explored it thoroughly, perceived something of its rhetorical possibilities as a weapon in the anti-slavery debates, noted that it had been included in the Northwest Ordinance of 1787,83 and read into the vague outlines of the phrase all the fervent idealism of a natural rights philosophy. Thus, in his second speech,84 delivered on January 13, 1857, (still six weeks before the Dred Scott decision) one finds him emphasizing repeatedly that the clause applies to all “persons,” not merely to all “citizens;” that “it protects not only life and liberty, but also property, the product of labor;” that “it contemplates that no man shall be wrongfully deprived of the fruit of his toil any more than his life.” In this speech also, Bingham alludes to the case of Graves v. Slaughter—albeit to McLean’s, not Baldwin’s opinion;85 and in it too he makes clear that the “absolute equality of all and the equal protection of each” are the great constitutional ideals of American government and as such “ought to be observed and enforced in the organization and admission of new states.” In point of fact, Bingham declared they were enforced: it was for this very reason that “the Constitution... provides that no person shall be deprived of life, liberty or property without due process of law,” and that it made “no distinction either on account of complexion or birth.”

In short, this second speech, likewise made with reference to the power of Congress to regulate slavery in the Territories, reveals a progressive development of ideas and a more thorough study of Constitutional history.86 One concludes that while Bingham still applied the due process clause only with reference to natural “persons,” he none the less increasingly thought of it as extending protection in accordance with his views of right and justice. Moreover, his political idealism, expressed in the “equal protection” concept, and strongly infused with natural rights philosophy, provided a reservoir of ethical and moral judgments which one might logically expect to find their outlet through the due process phrase.

It is exactly this tendency that one notes in Bingham’s third speech,87 delivered February 11, 1859, with reference to the above quoted “ no free Negro or mulatto” clause in the Oregon Constitution. Seeking constitutional sanction for his anti-slavery views, Bingham again and again relied upon “natural and inherent rights,” on “sacred rights... as universal and indestructible as the human race,” on “equality of natural rights,” etc., as the cornerstone of his argument. Nor was this reliance without profound significance. Again and again he maintained that “these natural and inherent rights which belong to all men irrespective of all conventional regulations are by this Constitution guaranteed by the broad and comprehensive word ‘person,’ as contradistinguished from the limited term ‘citizen,’ as in the Fifth Article of Amendments.”88 The due process clause, in short, was the repository of natural rights.

Adding to the significance of this natural rights usage of due process, and illuminating the pressures that inspired it, is the fact that while no other member of Congress appears to have used the clause as Bingham did, a number nevertheless relied heavily on extra—Constitutional natural rights arguments in defending or condemning the provision in the Oregon constitution,89 and at least one member attempted to use the “Republican form of government” clause in exactly the manner which Bingham used due process.90 Obviously these circumstances suggest that Bingham's tendencies were in no way exceptional or extreme; he had simply made a happier choice in his selection of weapons. Whereas the “Republican form of government” wording was probably too ambiguous to invite usage in such cases, the due process phraseology, containing the all—embracing terms “life,” “liberty,” and “property,” and containing also the word “due,” one synonym of which is “just,” was ideally suited both for application and expansion.

One finds in this third speech also an explicit and significant clue to the type of protection which Bingham conceived. Who would be “bold enough to deny,” he demanded, “that all persons are equally entitled to the enjoyment of the rights of life, liberty and property; that no one should be deprived of life or liberty but by punishment for crime; nor his property, against his consent and without due compensation.”91

This telescoping and virtual rewriting of the due process and just compensation clauses necessarily afford valuable insight into Bingham’s mind. It is probably to be expected that anyone using these clauses in a natural rights sense will use them loosely; yet three aspects of the constitutional status of property as viewed by Bingham must be noted. First, he deems it axiomatic that a man’s property must not be taken “without his consent;” property rights by his view are thus virtually absolute. Second, and not altogether surprising in the light of this first proposition, he omits all reference to the qualifying phrase that it is really “for public use...” that property is not to be “taken without just compensation.” Third, in using “due” as a synonym for “just” in the just compensation clause, it is reasonable to suppose that conversely he may have used “just” as a synonym for “due” in the due process clause; and very likely it was in this manner that a textual factor reinforced the natural rights factor in furthering his substantive conception of due process. Stated somewhat differently, according to Bingham’s view, due process probably meant just process, and inherently, therefore, it could never be limited simply to its procedural elements.

All in all, when one considers the scope and possible applications of the phraseology construed in this manner, it is apparent that Bingham from 1859 onward held views—whether he actually applied them or not—which were potentially capable, to use the Beards’ phrase, of “taking in the whole range of national economy.” Indeed his views are in many respects so much like those expressed by the Justices of the New York court in the revolutionary case of Wynchamer v. People in 185692 that one is led to speculate whether Bingham may not have been familiar with the dicta of those opinions. It seems significant at any rate that his own views should so closely parallel those which others, elsewhere, were applying to the defense of business interests then contending against legislative regulation.

Two additional points must now be noted. The first is that judging by the similarity of numerous passages of rhetoric and statements of fact, the Oregon speech of 1859 appears to have served as an important source and reference in the preparation of his arguments and drafts in 1866.93 This fact alone suggest a close link between the Fourteenth Amendment phraseology and the Oregon “no free Negro and mulatto” provision.

The second point, more or less implicit in foregoing quotations, is that several times in the course of this argument in 1859 Bingham made clear that he regarded the just compensation clause, no less than the due process clause, as a bulwark of natural and “sacred rights which are as universal and indestructible as the human race.” The significance of this fact will be apparent when one recalls that Bingham’s attempt to secure inclusion of a just compensation clause in the Fourteenth Amendment in 1866 has always been regarded as one of the strongest indications of an intent to aid business and corporations and thus to “take in the whole range of national economy.” Now, however, it develops that he cited this same clause seven years earlier in the speech which, as we have just pointed out, appears to have been an important source of his later remarks, and which was indubitably inspired by discriminations against free Negroes and mulattos.

Finally, perhaps the most significant thing about Bingham’s Oregon speech is that he here made use, in addition, of the comity clause in order to guarantee the rights of the free Negroes and mulattos.94 He was able to do this because native—born Negroes and mulattos, by his comprehensive anti-slavery definitions of citizenship, were “citizens” as well as “persons.”95

There were two important corollaries of this proposition so far as Bingham was concerned. First was that those privileges and immunities to which “citizens of each state” were entitled under the comity clause of the Constitution, Bingham interpreted to be the “privileges and immunities of citizens of the United States;” so that the clause read: “Citizens of each State shall be entitled to all privileges and immunities of citizens (of the United States) in the several states.”96 This of course was the very view which he held in 1866 and which is known to have prompted insertion of the privileges and immunities clause in Section One.97 Second, and more revealing as a clue to his later purpose in drafting Section One, was that according to his view “amongst these privileges and immunities of citizens of the United States” were “the rights of life and liberty and property and... due protection in the enjoyment thereof.”98 Thus the due process clause and the comity clause really guaranteed the same rights, but one applied to “citizens,” the other to “persons.” By using both clauses in this argument, and likewise by using the phraseology of both clauses in the text of the Fourteenth Amendment in 1866, Bingham undoubtedly conceived that he was affording double protection to the “800,000” free Negroes and mulattos from such discriminations as Oregon had put in her State Constitution. The due process clause being the repository of the natural rights of all “persons,” and the comity clause the special repository of the natural rights of certain “persons” who were also “citizens,” it can readily be seen that in theory Bingham had worked out an ingenious though rather complex system of constitutional protection.99

With these facts at hand it is now possible to formulate conclusions regarding Bingham’s purposes and to note their bearing on the conspiracy theory. The striking thins is of course that in laying the foundation for conspiracy we have apparently destroyed the superstructure. Seeking confirmation for the substantive character of Bingham’s conception of due process, we have really found confirmation—or apparent confirmation—of Justice Miller’s “one pervading purpose—Negro race” theory of the phraseology of Section One.

We have found this by discovering that every clause which Bingham used in his drafts in 1866 really dated back from seven to ten years in his speeches,100 and was identified, originally, with the problem of slavery in the Territories and with the controversial question of the citizenship of free Negroes and mulattos. State and territorial provisions denying these last—mentioned “persons” the privileges of residence, and of acquiring property and making contracts, provided Bingham with what may have been merely an apparent economic motivation.

An anti-slavery polemist of the natural rights school, a man who held thoroughly Lockian views concerning the sanctity of property and the rights of all men to acquire it, Bingham hit fortuitously upon due process in 1856 and used the weapon first to protect the “liberty” of abolitionists, then to bolster Congress’ power over slavery in the Territories. Chief Justice Taney’s application of the same clause with reverse effect in the case of Dred Scott presumably intensified Bingham’s convictions and led him farther a field. Eventually the Oregon discrimination caused him to use due process to guarantee to free Negroes as “persons” the very rights which Taney had guaranteed to slave holders as “persons.” To cinch this protection, and doubtless to pay his respects to the aged Chief Justice, Bingham maintained that native born Negroes were not only “persons,” but “citizens,” and not only “citizens,” but “citizens of the United States,” and as such entitled to be protected by Congress in the enjoyment of their rights of life, liberty and property. Four observations may not be listed:

1. Apart from its direct bearing on the conspiracy theory, this evidence illuminates the forces which brought about a revolutionary expansion of due process in America. The strong natural rights strain in our political thinking,101 and the Lockian view of property as sacred and absolute,102 have often been emphasized in this connection. To these, apparently, should be added the intrinsic advantages of the due process phraseology itself and the role of the slavery debates in acting as a powerful flux in welding together these diverse elements. The irresistible urge to find constitutional sanction for ethical and political opinions relating to slavery led both sides to employ the clause in a substantive sense. Perhaps but for the boomerang effect of Taney’s usage in the Dred Scott case, due process might have undergone a much earlier and more rapid expansion.

2. A natural rights philosophy and an aversion to the spread of slavery, rather than any profound insight into the potentialities of due process, apparently provided the driving force in Bingham’s usage. So far as one can judge he was originally a zealot, not a schemer, and antagonist of slavery, not a protagonist of due process and judicial review. The indications are even that like many polemists he was singularly blind to the broader implications of his stand; for during these years he was one of the sternest critics of the Supreme Court103 and at the same time the advocate of doctrines which implied a tremendous expansion of its powers. Taken alone, this fact is obviously hard to reconcile with the view that an anti—democratic philosophy and a desire to curb popular control of property in general lay deep in Bingham’s consciousness.

3. Section One of the Fourteenth Amendment may be explained in its entirety by assuming that Bingham’s purposes in 1866 were similar to his purposes in 1859. Phraseology which has heretofore been abstruse, mysterious, “cabalistic,” is thus rendered plausible without imputing to Bingham a desire to include corporations or to “take in the whole range of national economy.”

4. While this is true, one must recognize that Bingham’s views of “property” and “due process of law” were such that it would have been perfectly natural for him, had occasion ever arisen, to have applied that guarantee to protect the property of corporations. The fact that as a lawyer he spoke and thought of corporations as legal “persons” and that in professional practice he was concerned with their protection, only makes this possibility the more real.

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