John Bingham on the State Action Doctrine
I’ve now finished the portion of the book on Bingham’s congressional career. He got tangled up in two scandals during his last few months in office in 1873, which gives the story an interesting twist.
With respect to Bingham’s views on the Fourteenth Amendment, I’m trying to be cautious in drawing conclusions. When he clearly and repeatedly said something about a given issue, though, then I feel confident in saying “His understanding was . . .” In this vein, I think it’s obvious that he did not agree that there was a state action limitation on the Fourteenth Amendment.
Bingham supported the constitutionality of the Ku Klux Klan Act of 1871, which made it a federal crime for private persons to conspire to deny citizens their voting rights, right to sit on a jury, to hold office, or enjoy equal protection. In a long speech outlining his views, Bingham said several times with no equivocation that the Fourteenth Amendment empowered Congress to prevent “states or combinations of individuals” from violating the guarantees of Section One. Now I’ll concede that “combinations of individuals” could be distinguished from a single individual in defining congressional power, but in no way can you say that this meant only state action.
Anyway, now on to his tenure as Ambassador to Japan during the Meiji period.