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There are Founders—and There are Founders

By Sheila Suess Kennedy on September 17, 2013 in Civic Blog

Today being Constitution Day and all, it seems appropriate to turn our grateful attention to the men (and they were all men) we sometimes call the Founders, or the Framers.

So, thank you, Jonathan Bingham.

If you’re scratching your head and wondering what on earth I am talking about, you’re not alone. Few Americans have heard of Bingham, but all of us—especially women, African-Americans and other minorities—are in his debt.

I came across Bingham and the role he played in U.S. constitutional history a number of years ago, when I was researching a documentary history of Free Expression. He was a Republican Congressman from Ohio, serving before, during and after the Civil War.

Bingham, a fervent believer in racial equality, wrote the first and most famous passage of the 14th Amendment–the one forbidding states to deny “the privileges and immunities of citizenship” to their citizens, and requiring that they extend to those citizens the guarantees of due process and equal protection of the laws.

It was clear even from the brief research I did then that Bingham’s intent was to finish what Madison had tried but been unable to do–apply the entire Bill of Rights to state and local governments. (Originally, the Bill of Rights only restrained the federal government.) In the aftermath of the Civil War, he was finally able to get it done.

Or so he thought.

The Supreme Court declined to interpret the 14th Amendment as requiring complete and immediate “incorporation,” the weird term used by lawyers that means applying the Bill of Rights’ restrictions against government at all levels. Instead, the Court opted for “selective” incorporation–and over a period of many years, as cases came before it, used the Amendment’s privileges and immunities clause as a vehicle to require all levels of government to respect the “fundamental liberties” protected by the Bill of Rights.

What too few Americans appreciate is the importance of the 14th Amendment in our current Constitutional system. Yale Constitutional scholar Akil Amar has called the changes wrought by the 14th Amendment following the Civil War a “second founding,” in recognition of the profound effect of the nation’s new commitment to equality.  It seems odd that even Americans who are quite familiar with the roles played by Jefferson, Madison, Franklin, Hamilton et al have never heard of Bingham, nor been taught about the profound effect of his Amendment.

Happy Constitution Day.

Sheila Suess Kennedy, J.D. is Director of the Center for Civic Literacy and Professor of Law and Public Policy in the School of Public and Environmental Affairs at Indiana University Purdue University at Indianapolis. Her scholarly publications include six books and numerous law review and journal articles. Professor Kennedy is a columnist for the Indianapolis Star and a frequent lecturer, public speaker and contributor to popular periodicals.