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11/24/2015

Bingham's Lack of Precision on Due-Process Cases
Chris Green

Last month I noted how impressed I was by Jacob Howard's (procedural) recapitulation of earlier due-process cases in 1862. I particularly noted the clarity of Howard's explanations relative to those of John Bingham, who attempted in February 1866 to use the Fifth Amendment to support his implausible claim that his proposed amendment would simply enforce the existing Constitution. Asked what he meant by "due process of law," Bingham replied, "I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions." Unlike Howard, who carefully explained cases like the Supreme Court's decision in Murray's Lessee (1856) and Justice Curtis's trial-court opinion in Greene v. Briggs (C.C.D.R.I. 1852), Bingham refused to give further details.

Today I ran across further evidence of Bingham's relative lack of crispness in recalling due-process cases--his misremembering of Murray's Lessee as "McMillan's Lessees" in July 1866, during a dispute with Thaddeus Stevens, who wanted to preserve the right to jury trial in tax-fraud cases. Bingham's taunting of Stevens using the wrong case name--"I ask when and where the case of McMillan's Lessees was ever challenged, much less reversed, in any court in America"--makes Bingham seem especially foolish. The episode is evidence that Justice Curtis's interpretation of due process was still generally known and followed among congressmen in 1866, but it also suggests that we should probably not rely on John Bingham for precise details about the law.