The 39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives

This article is a preliminary effort to tell the story of the people who brought the nation the 14th Amendment, the 39th Congress...I want to suggest that when someone creates the Hall of Fame of the Congresses we need to include the 39th Congress

The Impeachment and Removal of Tennessee Judge West Humphreys: John Bingham\u27s Prologue to the Johnson Impeachment Trial

At the beginning of the Civil War many individuals who held positions under the United States government submitted resignations which, in their minds, allowed them to assume positions with the so-called government of the Confederate States of America. One of the few individuals who did not do so, but nevertheless assumed a position under the Confederate States of America was U.S. District Judge West H. Humphreys. After the Confederacy was formed, he continued to hold court in the same courtroom but under the guise of a Confederate States Judge. This presented two problems for President Lincoln and the Unionists. First, without even the thin reed of resignation to attempt to protect him, this made Humphreys a visible and active traitor. Second, though one could argue that Humphreys had functionally vacated the U.S. District Court judgeship, others could make arguments that as long as Humphreys had not resigned there was no vacancy for President Lincoln to fill. Apparently with pressure from the Unionists of Tennessee, a decision was made to pursue impeachment proceedings against Judge Humphreys. The House voted for impeachment and elected as one of the managers future 14th Amendment author John A. Bingham. (R-OH.) He was the principle lawyer examining witnesses in the trial before the U.S. Senate. While it was a relatively short trial, it gave Bingham experience that no doubt proved useful later in the impeachment proceeding against Andrew Johnson. Judge Humphreys was ultimately convicted and removed from office, thus creating an opening for Unionist Connolly F. Trigg to be appointed judge in his place. Moreover, Judge Humphreys unintentionally earned a footnote in history as the first official who was not only convicted, but also permanently barred from holding any office under the United States government. This article tells the story of Congressman Bingham\u27s prosecution of the trial to a successful conclusion

McDonald v. Chicago, Self-Defense, the Right to Bear Arms, and the Future

This article examines the opinion of the Court in McDonald v. Chicago and its implications for the future. The author participated as a party-amicus in the case and an article he authored in 1993 was cited by the Court. Using a concept that others have applied in other situations, this paper suggests that Chicago was a “outlier” and that this case simply involved reigning in a maverick outlier. While the paper finds Justice Thomas’s concurring opinion (with the exception of dicta on the establishment clause) being the most faithful to the meaning, intention, and public understanding of the 14th Amendment, it also notes that Justice Alito’s majority opinion is the most conservative approach because it follows established doctrine. While the conflicting opinions of Justice Scalia’s concurring opinion and Justice Stevens’ dissent will be perhaps be of interest from a jurisprudential standpoint, the paper sets them to one side as being little more than an articulation of the differences in personal views of the two justices. The manuscript faults Justice Breyer’s dissenting opinion for focusing upon the 2nd Amendment, rather than the actual issue before the court: the effect of the 14th Amendment. The article also touches upon the problems that arise because the majority of the court has based the Constitutional right to act in self defense upon the 2nd Amendment rather than a variety of other approaches that have or could be taken. The Court’s approach calls into question what should not be a matter of Constitutional dispute: do people have a right to act in self defense if they are not using a gun? The paper also examines other related issues in the application of McDonald to new situations. In the end the author concludes that it is only the common sense of both the American people and their judges that can strike the balance between the right to recognize to McDonald and the important interest of public safety

The Impeachment and Removal of Tennessee Judge West Humphreys: John Bingham\u27s Prologue to the Johnson Impeachment Trial

At the beginning of the Civil War many individuals who held positions under the United States government submitted resignations which, in their minds, allowed them to assume positions with the so-called government of the Confederate States of America. One of the few individuals who did not do so, but nevertheless assumed a position under the Confederate States of America was U.S. District Judge West H. Humphreys. After the Confederacy was formed, he continued to hold court in the same courtroom but under the guise of a Confederate States Judge. This presented two problems for President Lincoln and the Unionists. First, without even the thin reed of resignation to attempt to protect him, this made Humphreys a visible and active traitor. Second, though one could argue that Humphreys had functionally vacated the U.S. District Court judgeship, others could make arguments that as long as Humphreys had not resigned there was no vacancy for President Lincoln to fill. Apparently with pressure from the Unionists of Tennessee, a decision was made to pursue impeachment proceedings against Judge Humphreys. The House voted for impeachment and elected as one of the managers future 14th Amendment author John A. Bingham. (R-OH.) He was the principle lawyer examining witnesses in the trial before the U.S. Senate. While it was a relatively short trial, it gave Bingham experience that no doubt proved useful later in the impeachment proceeding against Andrew Johnson. Judge Humphreys was ultimately convicted and removed from office, thus creating an opening for Unionist Connolly F. Trigg to be appointed judge in his place. Moreover, Judge Humphreys unintentionally earned a footnote in history as the first official who was not only convicted, but also permanently barred from holding any office under the United States government. This article tells the story of Congressman Bingham\u27s prosecution of the trial to a successful conclusion

Ink Blot or Not: the Meaning of Privileges And/Or Immunities

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which are fundamental.” In exploring the meaning of the terms, the article notes it breadth, as articulated by Section 1 author John Bingham (R-Ohio) and Justice Strong in West Virginia v. Strauder. Examples are provided from Congressman Bingham, Justice Bradley, and Judge Thomas G. Jones in his turn of the century decision in Ex parte Riggins. Insight into how to apply the privileges or immunities clause is taken from Justice Robert Jackson, Justice Joseph P. Bradley and Justice Benjamin R. Curtis. Insight into the possibility that privilege and immunities would change is seen in the agreement between Justice Miller and Justice Bradley that constitutional amendments could change the content of the words. Further examples are given through the adoption of treaties and the 1866 Civil Rights Act. Because some concern has been expressed concerning the effect of using privileges or immunities clause upon establishment clause jurisidpurence, the history of the “secession” of slaveholders from the national churches and their establishment of pro-slavery churches which prohibited free exercise is examined. The insights provided by this history leads to the conclusion that a principled application of the privileges or immunities clause would not work any change in the current establishment clause jurisprudence. This approach is also tested with respect to a matter currently pending on certiorari in the U.S. Supreme Court: the enforcement of a right to bear arms against the states. The clauses are also analyzed to see how they would better protect the writ of habeas corpus than the inference drawn from Article I, Section 9, Clause 2. Finally, an example of how the use of the privileges and immunities clause might give a more principled and secure protection for established rights is illustrated by the application of the clauses to a “right of family life” that would replace the substantive due process approach used in Moore v. City of East Cleveland. The article concludes by noting that in spite of Saenz v. Roe, scholars and lawyers have not been very diligent in advancing claims under the privilege or immunities clause and provides reasons why such course should be pursued

39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of 60% of the members who were freshmen and the 39th Congress had 40%of the members who had never been in Congress before. The relatively inexperience of the Congress as a whole would suggest that the senior members – men such as the members of the Joint Committee on Reconstruction – would exercise an enhanced amount of influence. This study also reports the initial results of a more detailed examination of its membership. A large majority – over 150 – of its members were lawyers. In an era in which only one per cent of the population had a college degree, a small sample of Congressman (those whose last name begins with the letter “D”) 47% were college graduates. Further, an examination of individual Congressmen suggests that many of the college graduates had taken law-related courses in college. Though the apprenticeship model was still the predominant way in which lawyers came to the bar, there were numerous members of the Congress who both studied under the preceptor system and graduated from a law school. Three of the challenges the 39th Congress faced are examined. The first challenge was dealing with the immense of life and property because of the war. Second, though with the benefit of hindsight we know the Civil War was essentially over after the surrender of General Robert E. Lee’s Army in April 1865, it was not clear at the time that this was the case. Not only did fighting continue, but individuals and whole military units fled to Mexico. President Johnson did not declare the insurrection at an end in most of the insurrectionary states until April 2, 1866 . President Johnson did not declare the insurrection over it in Texas until August 20, 1866, after three states had already ratified the Fourteenth Amendment. Third, Andrew Johnson’s commitment to white supremacy mean that he was not just actively opposing the Congress on policy matters, but actually undermining the enforcement of the law and taking actions that, at least indirectly, resulted in the loss of life in the South. Congress responded to these conditions with the extension of the Freedman’s Bureau Act, the adoption of the Civil Rights Act of 1866, and the proposal of the Fourteenth Amendment. Congress’s overall goal – like national goals at the end of World War I, World War II, and the second Gulf War – was to end the war and secure the peace so that there would be no similar war in the future. The last portion of the article draws parallels between other post-war actions and that during Reconstruction and makes connections between the steps taken by the 39th Congress and their overriding goal of securing future peace