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John Bingham and Originalism

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Chris says:

    Bingham’s status as the drafter was important during the 1871 debates. See, e.g., Globe, 42nd Cong. 1st Sess. app. 256 (1871) (Sen. Henry Wilson): “Sir, I see, or think I see, ample powers in the fourteenth amendment upon which to base the legislation proposed by the pending bill. I concur entirely in the construction put upon that provision of the fourteenth amendment by Mr. Bingham, of Ohio, by whom it was drawn.” For a bit more, see http://ssrn.com/abstract=1100121 at 225.

    On 14A-era originalism, see, e.g., Matthew Carpenter’s report on women’s voting rights for the Senate Judiciary Committee, S. Rep. no. 42-21, at 2-3 (January 25, 1872): “A construction which would give the phrase ‘a republican form of government’ a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional a departure from the plain and express language of the Constitution in any other particular. This is the rule of interpretation adopted by all commentators on the Constitution, and in all judicial expositions of that instrument; and your committee are satisfied of the entire soundness of this principle. A change in the popular use of any word employed in the Constitution cannot retroact upon the Constitution, either to enlarge or limit its provisions.” For a bit more, see http://ssrn.com/abstract=1658010 at 84 n.281.

  2. Chris says:

    I agree it’s a bit odd that Bingham wasn’t given more attention after he left Congress. He was given special attention during the debates over the Civil Rights Act of 1871. See, e.g., Cong. Globe, 42nd Cong. 1st Sess. app. 311 (1871) (Sen. Henry Wilson: “I concur entirely in the construction put upon that provision of the fourteenth amendment by Mr. Bingham, of Ohio, by whom it was drawn.”); for a bit more, see http://ssrn.com/abstract=1227162 at 225. For originalism among 14A framers, see, e.g., S. Rep. no. 42-21, at 2-3 (January 25, 1872) (Sen. Matthew Carpenter for the Senate Judiciary Committee, rejecting women’s voting rights: “A construction which would give the phrase ‘a republican form of government’ a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional a departure from the plain and express language of the Constitution in any other particular. This is the rule of interpretation adopted by all commentators on the Constitution, and in all judicial expositions of that instrument; and your committee are satisfied of the entire soundness of this principle. A change in the popular use of any word employed in the Constitution cannot retroact upon the Constitution, either to enlarge or limit its provisions.”); for more, see http://ssrn.com/abstract=1658010 at 84 n.281.

  3. Shag from Brookline says:

    I see from a post above that Kurt Lash’s Part II of his Fourteenth Amendment project appears in the current issue of Georgetown Law Review. Drafts of Lash’s Parts I and II had been available in 2010 via SSRN well prior to the decision in McDonald v. Chicago. I had urged him at another blog to get his promised Part III of his project out there so that the Court and clerks might have the benefit of his continuing research BEFORE the decision came down. I don’t know if Prof. Lash has continued with Part III of his project, perhaps reconsidering in light of McDonald’s not incorporating the Second Amendment under the Privileges or Immunities Clause of the 14th. I hope Prof. Lash will note this comment and resp ond or that some else will contact him. The drafts of both Parts I and II were excellent and I was looking forward to Part III.