The “unlawful” 14th Amendment
I’m going to try to make this short and sweet, but it will be difficult given the subject matter.
Article 5 of the Constitution states:
“The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
So, according to the Constitution, at least two-thirds of Congress (House and Senate) have to propose an amendment to the Constitution, or at least two-thirds of the States’ legislatures can call for a convention to propose an amendment. After the amendment is proposed and accepted by both houses of Congress it is sent to the States for ratification by three-fourths of the States’ legislatures. We can skip the part about before 1808 but during this process no State, without its permission, can have its Senators excluded from the vote. Pretty simple really, spelled out in plain English (as is all of the Constitution).
OK, so how does this pertain to the 14th Amendment? Short answer is, every part of the above paragraph was violated in wrangling the passage of the 14th amendment. Let’s take a look at them one at a time.
First it says, “ The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution”. It is a matter of record that all of the Senators and Congressmen from most of the Southern states were excluded in order to obtain the two-thirds vote for adoption. Several States passed resolutions attesting to the fact. The New Jersey Legislature in March of 1868 passed a resolution of protest which stated:
“That it being necessary by the constitution that every amendment to the same should be proposed by two-thirds of both houses of congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven states of the union, upon the pretense that there were no such states in the Union: but, finding that two-thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States senate, and without any pretext or justification, other than the possession of the power, without the right, and in palpable violation of the constitution, ejected a member of their own body, representing this state, and thus practically denied to New Jersey its equal suffrage in the senate, and thereby nominally secured the vote of two-thirds of the said houses.”
Pretty strong words from a Union state. Most of the Southern states passed similar resolutions of protest. Even more damning is this from President Andrew Johnson in a special message to Congress dated June 22, 1866:
“On the contrary, a proper appreciation of the letter and spirit of the Constitution, as well as of the interests of national order, harmony, and union, and a due deference for an enlightened public judgment may at this time well suggest a doubt whether any amendment to the Constitution ought to be proposed by Congress and pressed upon the legislatures of the several States for final decision until after the admission of such loyal Senators and Representatives of the now unrepresented States as have been or as may hereafter be chosen in conformity with the Constitution and laws of the United States.”
So the 14th amendment doesn’t pass this test.
We can skip the part about the States requesting a convention since the amendment originated in Congress. However Article 5 also states how an amendment is ratified when it states, “when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof”. The fact is this didn’t happen either. At the time of the ratification process there were 37 States in the union. So a quick calculation tells us that 28 States would have to accept the amendment for ratification. Well the problem is that 15 states rejected it, which means only 22 accepted the amendment. The rejecting States (in order of their date of rejection) were, Texas, Georgia, Florida, Alabama, North Carolina, Arkansas, South Carolina, Kentucky, Virgina, Louisiana, Delaware, Maryland, Mississippi, Ohio and New Jersey. It was painfully obvious to everyone by February of 1867, when Delaware rejected the amendment, that it wasn’t going to pass even though the voting went on for through the first part of 1868. It was a done deal, the 14th amendment failed to pass three-fourths of the State legislatures. Or was it a done deal?
So what is a government “of the people, for the people and by the people” supposed to do when the States, especially those rebellious Southern States, just won’t fall in line and do what they are told? You pass three acts, over the veto of the President, that cumulatively became known as The Reconstruction Acts of 1867. The third, and quite possibly the most heinous, act was designed to remove with “Military force” the lawfully constituted State Legislatures of the 10 Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana and Texas. As Senator James Doolittle of Wisconsin put it, “The people of the South have rejected the constitutional amendment,” (my emphasis) so the North would “march upon them and force them to adopt it at the point of the bayonet.” Which was why Tennessee wasn’t one of the States deemed necessary of having to be reconstructed. It had passed the 14th Amendment and was welcomed into the fold.
The main themes contained in The Reconstruction Acts was the fact that the government wanted to “provide for the more efficient government of the rebel States” and that they hadn’t really been readmitted into the Union properly and passing the 14th Amendment was required for readmission into the Union, I guess to show just how reconstructed you really were. However, in President Johnson’s veto message of The Reconstruction Act on March 2, 1867 he stated:
“It is not denied that the States in question have each of them an actual government, with all the powers–executive, judicial, and legislative–which properly belong to a free state. They are organized like the other States of the Union, and, like them, they make, administer, and execute the laws which concern their domestic affairs. An existing de facto government, exercising such functions as these, is itself the law of the state upon all matters within its jurisdiction. To pronounce the supreme lawmaking power of an established state illegal is to say that law itself is unlawful.” (my emphasis)
The Reconstruction Acts organized those ten States, listed above, into Military Districts, their duly elected State legislatures were removed/disbanded and were replaced by, what was tantamount to military dictatorships. Seven of the “newly constituted” State legislatures were given orders to pass the 14th Amendment which they summarily did in this order (by date of passage), Arkansas, North Carolina, Florida, Louisiana, South Carolina, Alabama and then Georgia. So they finally had what they wanted. By hook or crook (or hook AND crook in this case), the abomination known as the 14th Amendment was finally passed. What’s really strange is the fact that six of these ten states, that the government said weren’t actually States yet since they needed “reconstructing”, were the deciding votes on passage of the 13th Amendment which abolished slavery. I guess since they were agreeing with them, they were States then.
What was all the fuss about over this amendment? I mean what was so important about this amendment that its passage was required for readmission to the Union? The first sentence, that whole definition of citizenship. Not only who is a citizen but what he is a citizen of and the order of importance. It says that “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.” (my emphasis). Well what could be wrong with that? We are citizens of the country, the United States, and then of the State where we live. Nothing wrong with that, is there? Except for one small, little, nit-picky thing. The Constitution did not create a country called the United States, it created a government called the United States of America. There is nothing in the Constitution about a country, it is all about the government. The “country” was created by the States when they won their independence from England. There was no need to specify what “the country” was, what the Constitution specifies is that “We the people of the United States” were adopting a constitution that created a government called “the United States of America” as it states in the preamble. So according to this amendment we are all citizens of the government first and then our State. Think on it for a minute. We are citizens of the Federal government first, and then a citizen of our State of residence. This flies in the face of what the Founders and Framers had in mind when they created our system of government in the first place. Not only that but there have been a whole host of usurpations via Supreme Court fiat legislation stemming from this one amendment. The whole idea of “incorporation” of our “constitutionally guaranteed rights” to the States is quite possibly one of the greatest injustices to the intent of the Founders that have ever been decreed from the “committee of nine”. The list goes on, but to keep to the object of my opening sentence, I must stop with that.
In summary, the 14th Amendment was never constitutionally proposed or passed. The only way the government could get it on the books was to “reconstruct” 10 of the Southern States by making them military districts and require they pass the 14th Amendment in order to be readmitted to the Union. Since its unlawful addition to the Constitution it has been used by the Supreme Court to vastly expand the Federal governments power and scope, far beyond the wildest imaginings of the Founders.