To view this on the COS website, click here a-second-james-madison-and-the-14th-amendment

A Second James Madison and the 14th Amendment

To uphold the Constitution as it is.

“No man can regret more than I do the fact that there is conspiracy in the Capitol and widespread conspiracy in the country, against the Constitution, the Union, and the laws.”

It was January 22, 1861, and Representative John Bingham of Ohio could see the writing on the wall: civil war was brewing.

Mississippi, Florida, Alabama, and Georgia had already seceded from the Union; Louisiana would follow four days later. Speaking to the House of Representatives, Bingham laid out his case against secession, foreshadowing sentiments echoed by Abraham Lincoln in his First Inaugural Address less than two months later.

“Mr. Speaker,” Bingham declared, “if this asserted constitutional right of secession exists it follows that the powers of this Government can only be exercised upon the voluntary assent, express or implied, of each State, and it results that our national Constitution is a sham; that instead of forming a ‘more perfect Union,’ it has formed no Union, and is the veriest embodiment of weakness and imbecility.”

Elected to Congress in 1855 as a vocal opponent of the Kansas-Nebraska Act, Bingham evidently held the Constitution in high regard. In his speech denouncing secession, he regularly quoted from the nation’s governing charter, as well as citing the Virginia Ratifying Convention, the Supreme Court, and various Founding Fathers. He concluded by urging his colleagues to “uphold the Constitution as it is. …” [emphasis added]

Bingham was quite fond of that phrase, having used it before (“I stand here today for the Constitution as it is. I stand today with millions of my countrymen … for the Constitution as it is”). However, as an outspoken abolitionist, he must have questioned whether the Constitution “as it is” did enough to secure the principles of equality outlined in the Declaration of Independence.

“I … commend gentlemen to consider that other provision of the Constitution, that the citizens of each State shall be entitled to all the privileges and immunities of American citizens in the several States,” Bingham urged. But did such pronouncements go far enough? And what did it mean to be a citizen? Were black Americans included in the “privileges and immunities” guaranteed to American citizens?

The infamous //Dred Scott// decision was clear on this point: “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.”

Chief Justice Roger Taney appealed to the same document that Bingham would have cited, but both arrived at very different conclusions: “the negro race,” Taney argued, “doomed to slavery,” had been “stigmatized” by the Constitution. In his majority opinion, he declared it was “absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.” Bingham, on the other hand, dismissed the Dred Scott decision as a “horrible blasphemy” and blasted slavery as “contrary to the spirit of our free Constitution.” “The Constitution,” he said, “is based upon the EQUALITY of the human race.”

Which view was correct? Questions about black citizenship and the constitutionality of slavery had become mainstream in the lead-up to the Civil War. Even Lincoln wrestled with them. While it was apparent to the president and Bingham that slavery violated the presuppositions of the nation’s founding documents, perhaps the Constitution itself was not as clear as it should have been.

A series of amendments known as the Reconstruction Amendments would correct that wrong. Beginning with the 13th Amendment (1865), which abolished slavery, and continuing through the 15th Amendment (1870), which sought to secure the right to vote regardless of race, these landmark amendments provided important clarification and marked a historic advancement of equality.

The middle amendment, the 14th, ratified on July 9, 1868, explicitly contested and reversed the Dred Scott decision. Bingham, who participated in several major post-war events, including the trial of John Wilkes Booth’s co-conspirators and Andrew Johnson’s impeachment trial, penned the amendment’s famous first section:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or 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.”

Although the amendment made other provisions, Bingham’s language stands out as one of the most consequential additions to the Constitution, enshrining the Declaration’s timeless assertion that all men are created equal.

Unfortunately, not everyone approved of the amendment. Andrew Johnson, for one, rejected it. However, as Article V outlines, the states, not the president, must ratify proposed amendments, meaning there was little Lincoln’s successor could do to stop it. On July 27, despite his personal reservations, Johnson reluctantly issued a proclamation announcing the ratification of the “proposed amendment to the Constitution known as article fourteen.”

Despite entrenched opposition to civil rights and the overall disappointment of Reconstruction, the passage of the 14th Amendment proved that the nation was moving in the right direction. The Constitution had been vindicated; it was not a “sham,” but a verifiable liberty document, one which the people, now including former slaves, could amend to attain a more perfect Union. Bingham proved it was, indeed, possible to “uphold the Constitution as it is,” while still seeking to enhance its focus on America’s founding principles.

“Representatives,” Bingham addressed his colleagues, “to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.”

How could such a glorious end be achieved? The representative from Ohio, who Justice Hugo Black later nicknamed the “James Madison of the 14th Amendment,” answered:

“[Y]ou must amend the Constitution. It cannot be otherwise.”

Page Metadata
Login Required to view?	No
Created:	2025-07-09 22:09 GMT
Updated:	2025-07-16 07:00 GMT
Published:	2025-07-09 22:00 GMT
Converted:	2025-11-11 12:06 GMT
Change Author:	Jakob Fay
Credit Author: