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John Bingham and Unwritten Rights

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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6 Responses

  1. Joe says:

    The article suggests Slaugherhouse leaves open the “incorporation” of the BOR, but the Supreme Court soon (citing its tenets) ended that possibility.

    As for the “privileges or immunities” being limited to the BOR, freedom from slavery itself would seem to compel some other rights. There should be some middle ground there that resists incorporating common law rights as a whole.

    For instance, some freedom to contract (without going into a myriad of questions like minimum wage laws or whatever), choose lawful occupations, travel inside states (in ways that don’t raise Crandall v. Nevada issues), control family life in some basic ways, etc. seem basic to “freedom.”

  2. Chris says:

    He quoted Corfied in his January 1871 report on women voting. See http://ssrn.com/abstract=1658010 at 61-64.

  3. Chris says:

    “Second, Bingham insisted that the Privileges or Immunities applied the first eight amendments to the Constitution to the states and nothing more.”

    His March 1871 speech did say “chiefly,” though.

  4. Gerard Magliocca says:

    The 1871 report on Victoria Woodhull’s petition (for women’s suffrage) is problematic in that it says several things that contradict Bingham’s prior statements. That could be because he was issuing the report on behalf of the Judiciary Committee, which had many members with different views, but I’m not sure.

  5. Joe says:

    The haziness is telling.

  6. Gerard Magliocca says:

    Well, Bingham was not hazy — his views were pretty clear. The Congress more generally is a different matter.

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