When the Civil War ended, the Thirteenth Amendment had passed, and Abraham Lincoln had been assassinated. Bingham served as the civilian prosecutor in the Lincoln murder trial. “Tennessee” Johnson had become president and although a war Democrat who had claimed support for the freedmen, his vision of Reconstruction of the rebels clearly meant returning white men to power as soon as possible and not giving the newly freed slaves the right to vote. Johnson’s interference with Congressional Reconstruction and Military Reconstruction eventually led to the first impeachment in American history and John Bingham was the House prosecutor.
In 1866, John Bingham wrote Section I of what would become the Fourteenth Amendment. “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Bingham fully intended that the Bill of Rights should apply to the states. He also articulated the philosophy that there was a nation composed of all native born and naturalized Americans, whatever their color.
We often hear the argument from the right, “this is a republic” as if republic and democracy do not equate as one at the founding or in interpreting the Fourteenth Amendment today. In Federalist #39, James Madison defined the nature of his Republic and it was thoroughly democratic. This republic, our United States, was to be governed by the majority. Madison said government derives “all its powers” from “the great body of the people” and, as constitutional scholar Akhil Reed Amar has said, “these principles are rooted in majority rule popular sovereignty.” Article IV of the Constitution guarantees a republican form of government to all Americans. Madison clarified America was not to be governed by a faction.
The redistricting, gerrymandering fight in Ohio is about exclusion of voters and thwarting majoritarian rule. It is the same fight John Bingham fought in trying to establish protections for all Americans of whatever color and especially to protect voting. An Ohio representative gerrymandered out of his seat wrote the most powerful amendment in the Constitution in order to protect majoritarian rule.
David Madden is a retired trial attorney, a mentor at the University of Dayton Law School and a spokesperson for the ACLU. He was an Infantry platoon leader and LTC in the JAG Corps. His book The Constitution and American Racism was published by McFarland Press in 2020.
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