Studies in Constitutions

A mistaken belief - that there is a valid article in the U.S. Constitution known as the "Fourteenth Amendment" - is responsible for the Supreme Court decision of 1954 and the ensuing controversy over desegregation in the public schools of America. No such amendment was ever legally ratified by three fourths of the States of the Union as required by the Constitution itself. The so-called "Fourteenth Amendment" was dubiously proclaimed by the Secretary of State on July 20, 1868. The President shared that doubt. There were 37 States in the Union at the time, so ratification by at least 28 was necessary to make the amendment an integral part of the Constitution. Actually, only 21 States legally ratified it. So it failed of ratification.
         The undisputed record, attested by official journals and the unanimous writings of historians, establishes these events as occurring in 1867 and 1868:
          1. Outside the South, six States - New Jersey, Ohio, Kentucky, California, Delaware and Maryland - failed to ratify the proposed amendment.
          2. In the South, ten States - Texas, Arkansas, Virginia, North Carolina, South Carolina, Georgia, Alabama, Florida, Mississippi and Louisiana - by formal action of their legislatures, rejected it under the normal processes of civil law.
          3. A total of 16 legislatures out of 37 failed legally to ratify the "Fourteenth Amendment."
          4. Congress - which had deprived the Southern States of their seats in the Senate - did not lawfully pass the resolution of submission in the first instance.
          5. The Southern States, which had rejected the amendment, were coerced by a federal statute passed in 1867 that took away the right to vote or hold office from all citizens who had served in the Confederate Army. Military governors were appointed and instructed to prepare the roll of voters. All this happened in spite of the presidential proclamation of amnesty previously issued by the President. New legislatures were thereupon chosen and forced to "ratify" under penalty of continued exile from the Union. In Louisiana, a General sent down from the North presided over the State legislature. (how constitutional is that?)
          6. Abraham Lincoln had declared many times that the Union was "inseparable" and "indivisible." After his death, and when the War was over, the ratification by the Southern States of the Thirteenth Amendment, abolishing slavery, had been accepted as legal. But Congress in the 1867 law imposed the specific conditions under which the Southern States would be "entitled to representation in Congress."
          7. Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the "Fourteenth Amendment," took an unprecedented step. No such right - to compel a State by an act of Congress to ratify a constitutional amendment - is to be found anywhere in the Constitution . Nor has the Supreme Court of the United States ever sanctioned this procedure. 
          8. President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.
          9. Secretary of State Seward was on the spot in July 1868 when the various "ratifications" of a spurious nature were placed before him. The legislatures of Ohio and New Jersey had notified him that they rescinded their earlier action of ratification. He said in his official proclamation that he was not authorized as Secretary of State "to determine and decide doubtful questions as to the authenticity of the organization of State legislatures or as to the power of any State legislature to recall a previous act or resolution of ratification." He added that the amendment was valid "if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of these States." This was a very big "if." It will be noted that the real issue, therefore, is not only whether the forced "ratification" by the ten Southern States was lawful, but also whether the withdrawal by the legislatures of Ohio and New Jersey - two Northern States - was legal. The right of a State, by action of its legislature, to change its mind at any time before the Secretary of State issues the final proclamation of ratification has been confirmed in connection with other constitutional amendments .
          10. The Oregon Legislature in October 1868 - three months after the Secretary's proclamation was issued - passed a rescinding resolution, which argued that the "Fourteenth Amendment" had not been ratified by three fourths of the States and that the "ratifications" in the Southern States were "usurpations, unconstitutional, revolutionary and void" and that, "until such ratification is completed, any State has a right to withdraw its assent to any proposed amendment."  
         What do the historians say about all this? The Encyclopedia Americana states: "Reconstruction added humiliation to suffering.... Eight years (twelve years in Florida) of crime, fraud, and corruption followed and it was State legislatures composed of freed slaves, carpetbaggers and scalawags who obeyed the orders of the generals and ratified the amendment."  
         The Supreme Court, in case after case, has refused to pass on the illegal activities involved in "ratification." It said simply that they were acts of the "political departments of the Government." This, of course, was a convenient device of avoidance. The Court has adhered to that position ever since Reconstruction Days.
         Andrew C. McLaughlin, whose Constitutional History of the United States is a standard work, writes: "Can a State which is not a State and not recognized as such by Congress, perform the supreme duty of ratifying an amendment to the fundamental law? Or does a State - by congressional thinking - cease to be a State for some purposes but not for others?"
         This is the tragic history of the so-called "Fourteenth Amendment" - a record that is a disgrace to free government and a "government of law." 

See http://coolchange.net/discussions/dl1.htm for the full text of this article.

Excerpted from U.S. News & World Report, 27 September 1957

Historical Quiz