On Misreading John Bingham and the Fourteenth Amendment

• Published in: The Yale law journal 1993-10, Vol.103 (1), p.57-104
• Main Author: Aynes, Richard L.
• Format: Article
• Language: English
• Subjects: Bill of Rights; Bill of Rights-US; Bingham, John A; Citizenship; Constitutional amendments; Constitutional law; Constitutional Law (Fourteenth Amendment); Court decisions; Discrimination; Fairman, Charles; Fourteenth Amendment; Immunity; John Bingham; Law; Political debate; Senators; Speeches; State laws; Supreme Court justices; Treatises; United States; United States constitutional law
• ISSN: 0044-0094; 1939-8611
• DOI: 10.2307/797077

Since 1949, Charles Fairman's conclusion that the Fourteenth Amendment does not incorporate the Bill of Rights has shaped judicial opinions and legal scholarship. Building on the work of several revisionist scholars, Professor Aynes challenges Fairman's analysis and conclusion. While Fairman insisted that the Amendment's primary author, Ohio Representative John Bingham, was a confused man whose views provide no guidance when attempting to interpret the Fourteenth Amendment, Professor Aynes refutes this characterization and demonstrates that Bingham presented a cogent constitutional theory. Professor Aynes identifies several sources that establish that Bingham intended the Fourteenth Amendment to enforce the first eight amendments against the states and that many of his contemporaries shared his belief regarding the Amendment's purpose. Professor Aynes also argues that Fairman misread critical sources, relied on information taken out of context, ignored important contemporary materials, and buttressed his argument with a flawed legal theory. In sum, Professor Aynes insists that Fairman's portrait of John Bingham is distorted and unfaithful to the historical evidence.