AMERICAN FOUNDING SON: JOHN BINGHAM AND THE INVENTION OF THE FOURTEENTH AMENDMENT

poster abstractJohn Bingham was the architect of the rebirth of the United States following the Civil War. A leading antislavery lawyer and congressman from Ohio, Bingham wrote the most important part of the Fourteenth Amendment to the Constitution, which guarantees fundamental rights and equality to all Americans. He was also at the center of two of the greatest trials in history, giving the closing argument in the military prosecution of John Wilkes Booth’s co-conspirators for the assassination of Abraham Lincoln and in the impeachment of President Andrew Johnson. And more than any other man, Bingham played the key role in shaping the Union’s policy towards the occupied ex-Confederate States, with consequences that still haunt our politics. Drawing on his personal letters and speeches, the book traces Bingham’s life from his humble roots in Pennsylvania through his career as a leader of the Republican Party. I argue that Bingham and his congressional colleagues transformed the Constitution that the Founding Fathers created, and did so with the same ingenuity that their forbears used to create a more perfect union in the 1780s

Rediscovering \u3cem\u3eCorfield v. Coryell\u3c/em\u3e

This Article reveals new details about Corfield v. Coryell based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum. The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause. The notes also say that he saw Livingston v. Van Ingen as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent’s view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens instead of a freestanding guarantee of fundamental rights. Even more important may be the disclosure from the notes that Justice Washington wrestled with the Commerce Clause issue in Corfield prior to the Supreme Court’s ruling in Gibbons v. Ogden in a way that probably influenced Chief Justice John Marshall’s landmark opinion for the Court. In short, the Corfield notes provide a fascinating glimpse into the thinking of a key member of the Marshall Court at a crucial stage. The discovery of Justice Washington’s notes also provides an occasion to offer one reflection on Corfield’s legacy. His opinion was the first notable legal authority to say that the right to vote is fundamental. This idea was so radical in the nineteenth century that even the strongest supporters of Reconstruction shied away from Corfield’s implications for African American and female voting. Indeed, not until the 1960s did the Supreme Court and Congress accept Corfield’s wisdom that “the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised,” is an essential right of citizenship, though the United States still struggles to reconcile that right with the reality of state and local regulation of election administration. Part I gives a detailed account of Corfield and explores how the case was subsequently understood. Part II examines Justice Washington’s notes on the case and shows how they expand our understanding of Gibbons and Corfield. Part III explores Corfield’s revolutionary reference to voting rights

The Bill of Rights as a Term of Art

This Article argues that the use of the “Bill of Rights” to describe the first set of constitutional amendments emerged long after the Founding as a justification for expanding federal power at home and abroad. In making that claim, I challenge two common misconceptions about the Bill of Rights. One is that the first set of amendments was known by that name from the start. This is not true. James Madison never said that what was ratified in 1791 was a bill of rights, and that label was not widely used for those provisions until after 1900. The second fallacy is that the Bill of Rights was a term of art designed to limit government through judicial review. While this is the modern understanding of the Bill of Rights, that idea did not become part of constitutional grammar until World War II

Winston Churchill on the American Constitution

(Excerpt) Though best known for leading Britain during World War II, Winston Churchill was a keen observer of constitutional law. Most of his insights concerned the unwritten conventions of the British Constitution, but Churchill also commented extensively on the American Constitution. Intellectual curiosity and a desire to forge a closer alliance between Great Britain and the United States were at the root of Churchill’s interest in the institutions of what he called “The Great Republic.” As with all things Churchill, his observations on our Constitution were sometimes inspiring, sometimes illuminating, and sometimes noxious. This Article provides the first comprehensive analysis of Winston Churchill’s views on American constitutional law. In his multi-volume A History of the English Speaking Peoples, Churchill discussed the drafting and the ratification of the Constitution in detail. In a series of op-eds and magazine articles based on his trips to the United States, Churchill brought his acute political sense to bear on the operation of the Constitution during Jim Crow, Prohibition, and the New Deal. And in speeches to British and American audiences over many decades, Churchill frequently turned to our Constitution as both a model and a foil