During and after the Civil War, Southerners repeatedly declared that the cause for which they fought was the “sublime moral principle” of states’ rights. Given such protestations, and given the history of southern resistance to federal authority throughout the antebellum period, it is easy enough to associate states’ rights exclusively with the South—but it is also mistaken. Connecticut and Massachusetts endorsed interposition in 1808; the Hartford Convention of 1814 did the same. In 1840 Vermont made it a crime to aid in the capture of a runaway slave, despite the federal fugitive slave act. In 1846 the Massachusetts House of Representatives declared the Mexican War unconstitutional; a decade later Wisconsin asserted the supremacy of its supreme court over the United States Supreme Court.
Yet it was the seceding states that had carried the doctrine of states’ rights to the extreme, and northern Radical Republicans, in their zeal to punish, plunder, and reconstruct the South, were willing to undermine the doctrine as part of their undertaking. Whatever else the Radicals had in mind in pushing through the Reconstruction Amendments—their motives were diverse and conflicting—it is clear that some of them, at least, intended that the Fourteenth should greatly increase the powers of Congress at the expense of the states. It is also clear that the process of adopting the Fourteenth Amendment was marred by repeated irregularities. President Andrew Johnson questioned the legitimacy of an amendment proposed by a Congress that represented only twenty-five of the thirty-six states. Three northern states that ratified the proposal later rescinded their votes. All the southern states except Tennessee at first voted against the amendment, despite an implied threat that they would not be readmitted to the Union; they changed their stands only after the threat was made explicit. And throughout the debates on the amendment, friends and foes alike disagreed as to whether approval of three-quarters of twenty-five states or of thirty-six would be necessary.
Ultimately, the issue would turn on the question whether the southern states had legally seceded. Both presidents Lincoln and Johnson and the Supreme Court held to the contrary. Radicals in Congress disagreed, but the Congress as a whole followed an inconsistent course. For all these reasons,the constitutionality of the adoption of the Fourteenth Amendment remains open to question.
The subject has a historiography, and not altogether a savory one. In 1953, after the first round of arguments in Brown v. Board and the other school desegregation cases, the Supreme Court ordered counsel to answer certain queries regarding various events connected with the adoption of the Fourteenth Amendment. The Court was specifically interested in the intent of the framers respecting segregation, but a Tulane law professor, Walter J. Suthon, Jr., responded by publishing an article questioning the “dubious origin” of the amendment. In it, he traced the origins of Article V, the amending clause of the Constitution, put together a brief history of the proposal of the amendment and its forced ratification in the South, and concluded that the intent of the framers was irrelevant, for the whole proceeding, start to finish, was unconstitutional.
In 1958, after the decision in Brown v. Board and amidst massive southern resistance to desegregation, a Houston lawyer named Pinckney G. McElwee published an article in the South Carolina Law Quarterly that reached the same conclusion. McElwee’s study was more thorough than Suthon’s had been, and he quoted from and cited more contemporary documents, but his piece was marred by a certain shrillness of tone.
Two years later, the Georgia Bar Journal published “a statement issued by the State Sovereignty Commission of Louisiana” entitled “Unconstitutional Creation of the Fourteenth Amendment.” The statement rehearsed the facts, garbling several of them along the way, called for the Supreme Court to declare the amendment illegal, and concluded that the amendment was mistitled and should be designated “Military Edict No. 1.” Baylor Law Review produced a shorter-and more accurate and more moderate-version of the argument in 1961, and the Alabama Lawyer reprinted that article in 1963.
All such efforts were directed against the desegregation decisions, and in 1966 a California lawyer named Ferdinand Fernandez took pen in hand to write a long and angry rebuttal. He succeeded in answering some of the critics’ charges, but he misunderstood the main thrust of their arguments and ended up knocking over straw men. At that point legal scholars and historians largely abandoned the issue-though it occasionally cropped up in the literature for another two decades-and concentrated their efforts instead upon studying the intent of the framers. They have generated a huge body of literature on that subject, but shed little light on the question of the constitutionality of the adoption procedure. Among such scholars, Alfred Avins, professor of law at Memphis State University, deserves special mention because of his herculean efforts in compiling a volume covering the legislative history and debates in Congress on all three Reconstruction amendments.
Avins’ volume is invaluable to anyone studying the origins of the Fourteenth Amendment, as are two studies by Joseph B. James. The first is The Framing of the Fourteenth Amendment, published in 1956. The second is a sequel, The Ratification of the Fourteenth Amendment, published in 1984. James is judicious and cautious, and he avoids drawing any conclusions about whether the amendment was constitutionally adopted, but he provides abundant material from which readers can draw their own conclusions.
Passage in Congress
To turn now to substantive aspects of the question, the first irregularity-the passage of the amendment by an incomplete Congress-can be disposed of rather briefly. The final vote in the House of Representatives was 120 to 32, with 32 abstentions-far more than the requisite two-thirds majority. But the eleven states of the erstwhile Confederacy were entitled to and had elected 61 representatives who had been denied seats, all of whom would doubtless have voted in the negative. Had their votes been cast, the majority would have been only 56 percent. Besides, the majority included representatives from the newly admitted states of West Virginia and Nevada, the constitutionality of whose statehood was doubtful. In the Senate a similar situation pertained. The vote there was 33 to 11, with 5 abstentions. If the twenty-two seats of the former Confederate states were added in the negative column, there would have been a tie vote, and if the four seats held by West Virginia and Nevada were subtracted from the affirmative column, the aye votes would have fallen short of even a simple majority.
But that does not exhaust the question. Article V provides that “Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments.” The wording is not explicit as to whether “two thirds of both Houses” means two-thirds of the members or two-thirds of those present and voting. But Article I, Section 5, defines a quorum as a simple majority, gives each house power to judge the qualifications of its members, and authorizes each to make its own rules. It follows logically that when the Thirty-ninth Congress approved the Fourteenth Amendment in 1866 by more than two-thirds of the members present in each house, it was acting within the framework of the rules as established in the Constitution.
There was ample precedent for so reasoning. Though the records do not itemize the voting in the First Congress on the amendments that became the Bill of Rights, it is clear from the debates that the members read “two thirds of both Houses” to mean two-thirds of a quorum. When the Twelfth Amendment was under discussion fourteen years later, the subject was debated at length. The Senate passed the measure by more than two-thirds of those present, but by one vote less than two-thirds of the whole membership; over the objections of the minority, Vice-president Aaron Burr ruled that the majority was adequate. When the House took up the proposal, the same objection was raised, with an ingenious twist. It was pointed out that in the other instances in which the Constitution requires two-thirds majorities, in impeachment trials (Article I,. Section 3) and in ratifying treaties (Article II, Section 2), the language is “two thirds of the Members present” and “of the Senators present,” and some Representatives inferred that the different phraseology in Article V thereby meant two-thirds of the whole body. The House, however, overwhelmingly rejected the argument.
But another aspect of the matter clouds the issue. The numbers cited concerning the vote in the Senate mask some chicanery. One of the fifty non-southern senators was the newly elected John P. Stockton of New Jersey, an outspoken opponent of the Fourteenth Amendment, who took the oath of office and was formally seated when the Thirty-ninth Congress convened on December 5, 1865. Later, after informal polls revealed that only thirty-three senators favored it (one short of the necessary two-thirds) a motion was made not to seat Stockton. The motion not to seat was resorted to, even though he had already been seated, because Article I, Section 5, of the Constitution requires a two-thirds vote to expel a member, and that majority could not be mustered. Following a great deal of debate, a vote was taken and the motion not to seat failed twenty-two to twenty-one. Overnight, however, one member of the Senate was persuaded to change his vote. The next day the same motion passed. Stockton was thus unconstitutionally expelled, and only in that way did the thirty three votes for the Fourteenth Amendment become a two thirds majority.
Early Ratifications and Rejections
Even more vexing questions arise when we consider the process of ratification. Senator Charles Sumner of Massachusetts had, as early as 1862, formulated his “state suicide” theory, which held that the very act of seceding destroyed a state and dissolved its lawful government. In the House the Radical Pennsylvanian Thaddeus Stevens advanced the alternate theory that the eleven southern states were conquered provinces without any political rights. Either way, the ex-Confederates were governable exclusively by Congress under its express power to govern territories, and could have no voice in ratifying amendments. Accordingly, nineteen of the twenty-five loyal states would constitute the three-fourths majority necessary to ratify the Fourteenth Amendment, not twenty-seven of thirty-six states counting the South.
Congress might have had the right to act on either theory, but instead it rejected both. What is more, on June 16, 1866, when the proposed amendment was sent to the state governors for legislative ratification, it was sent to all thirty-six, a tacit endorsement of the position that the southern states were still full-fledged members of the Union. Against that ambiguous background, the contests over ratification got off to an erratic start. Five states ratified within the first three months. Ratification by Connecticut, New Hampshire, and New Jersey was unexceptional, though the vote in New Jersey was close and the state would later rescind its ratification; but the action in Tennessee and Oregon was most irregular. Opponents of the amendment in the Tennessee House absented themselves, preventing a quorum. Two absent members were forcibly seized, a criminal court ordered them released by a writ of habeas corpus, the House ignored the writ, and the two were held in an anteroom. The speaker declared them absent and ruled that there was no quorum, but he was overruled by the members present. What was essentially a rump House then proceeded to vote for ratification.
Ratification in Oregon was equally irregular. Republicans in the state (who like most Republicans everywhere favored ratification) had a majority of one in the state’s House of Representatives, but two of their seats were challenged. The two were temporarily seated and provided a narrow margin for ratification. Later in the session, however, the disputed seats were awarded to Democrats on the ground that the Republicans had been illegally elected, whereupon the legislature rescinded its ratification.
Late in October Vermont added its ratification, but then the southern states began to be heard from-loudly and negatively. On October 27, 1866, Texas voted overwhelmingly not to ratify, the House by a seventy to five majority, the Senate by twenty-seven to one. Significantly, the legislature pledged its loyalty to the Constitution and promised to abide by the Fourteenth Amendment if it should be ratified by the necessary proportion of the other states. Georgia followed the same course two weeks later, its Senate unanimously, its House with only two votes in favor of ratification. In December more southern states rejected the amendment, and a portentous note was heard from a loyal state. The Florida House voted unanimously against ratification on December 1, the Senate unanimously against ratification two days later. In mid-month Arkansas, North Carolina, and South Carolina followed suit, in every instance by huge majorities. About the same time, friends of the amendment were handed another disappointment: Governor F. F. Low of California, though a Republican, refused to call a special session of the legislature to consider the amendment. California would subsequently reject it.
As Radicals in Congress began to discuss revisions of the amendment and draconian measures to secure its adoption, more rejections came during January of 1867. Virginia summarily voted against the amendment early in the month; Alabama, after having debated it longer than any other state, also voted no; and toward the end of the month Mississippi did likewise. Louisiana followed early in February. What was more, two loyal border states, Kentucky and Delaware, had joined the ranks of those rejecting the proposed amendment. A third loyal border state, Maryland, would do so in March.
In sum, as the last days of the Thirty-ninth Congress approached-it would expire on March 4, 1867-the Fourteenth Amendment appeared to be doomed. The admission of Nebraska to statehood on March 1 brought the number of states to thirty-seven, meaning that twenty-eight states would be required for ratification if the southern states were counted. But eleven had already voted no, and Maryland would make it twelve.
Changing the Rules
Yet a course of action remained whereby Congress could have brought about ratification at least marginally within the boundaries of the Constitution. Article I, Section 8, empowers Congress to determine whether a domestic insurrection is taking place, and under Article IV, Section 4, the United States guarantees each state a republican form of government and protects each against invasion or domestic violence-guarantees and protections that, according to the Supreme Court’s subsequent ruling, were primarily “legislative.” The proclamation by President Johnson on August 20, 1866 that the rebellion had ended in all states and that “peace, order, tranquility and civil authority now exist in and throughout the whole of the United States” could therefore have only “provisional” force until Congress acted. Moreover, though the Supreme Court would hold in Texas v. White (1869) that the Constitution “looks to an indestructible Union, composed of indestructible States,” it remained bound by its prior ruling in Luther v. Borden (1849) that matters of the legitimacy of state regimes arising under the republican government guarantee clause were “political questions” falling under the exclusive control of Congress and not subject to adjudication in the courts.
The inescapable conclusion from these considerations is that Congress would have faced no constitutional barriers had it embraced either Sumner’s state-suicide theory or Stevens’ conquered-province theory. Having done so, it could then have proclaimed that the Fourteenth Amendment would be officially ratified whenever twenty of the twenty-six “legitimate” or loyal states (including Nebraska) had approved. Subsequently, it could require the erstwhile southern states to approve the Constitution, including the new amendment, as a condition of admission to statehood, just as it could in admitting more conventional territories.
There is a complication in this scenario. Kentucky, Delaware, and Maryland, as we have seen, rejected the proposed amendment outright, and California did so later. Ohio, New Jersey, and Oregon rescinded their ratifications. If the rescissions were allowed, only nineteen states, not the requisite twenty, would have ratified. When introduced in Congress, however, the rescissions were rejected, despite the argument that a legislative ratification of an amendment was not a contract until it became part of the Constitution and could therefore be cancelled. Though the question is a sticky one, over which there is still disagreement, Congress was the final arbiter in the matter. The Supreme Court never ruled on the question directly, though in later cases, concerning different amendments, it declared that Congress necessarily had the last word.
Interestingly, it was the Radicals who proposed to follow the constitutional way of bringing about approval of the amendment-not because they had strong constitutional scruples, but because they wanted to keep the southern states out of the Union until further reforms could be imposed upon them, including suffrage for the freedmen and a general redistribution of all property. Instead, “moderate” and “conservative” Republicans prevailed, resulting in ratification of the Fourteenth Amendment by means that cannot be squared with either the Constitution or the Republicans’ own internal logic.
A Coercive Procedure
The congressional majority used the Reconstruction Act of March 2, 1867, passed over President Johnson’s veto just before the expiration of the Thirty-ninth Congress and slightly amended by the Fortieth Congress later the same month, to force the southern states to approve the amendment. The act, as amended, began with a declaration that “no legal state governments” existed in the ten “rebel” states that had refused to ratify. It divided the South into five military districts and replaced the existing governmental structures with martial law. The act required the “rebel” states to call elections, in which black males could vote, but whites who had participated in the rebellion or given aid and comfort to rebels could not. Thus the states would elect delegates to conventions that were to establish constitutions that included provisions for black suffrage. When the constitutions were ratified by a majority of the eligible voters and approved by Congress, when governments were organized under them, and when those governments ratified the Fourteenth Amendment, then-and only then-would Congress consider ending military rule, recognizing the state governments as legally existent and readmitting the states to representation in Congress.
The act flew in the face of the Constitution in a large variety of ways. First, it ran counter to the decision of the Supreme Court in Ex parte Milligan. Less than three months earlier, the Court had ruled that martial law could not constitutionally be imposed, in the absence of war or rebellion, in areas where the civilian courts were functioning. Next, in its peculiar holding that the states had continued to exist but were without legal government, the act entangled itself in contradictions. All the involved states except Mississippi, which had extensively amended its 1832 constitution, had drafted new constitutions under the auspices and with the approval of the federal government. Louisiana, for example, had adopted its constitution in 1864 under suggestions and directions from President Lincoln. And, tellingly, Congress had called upon the legislatures elected under those constitutions to ratify the Thirteenth Amendment in 1865. The votes of six of them-Alabama, Arkansas, Georgia, North Carolina, South Carolina, and Tennessee-were counted as being among the three-fourths majority. In other words, in 1865 Congress had recognized the legitimacy of the southern state governments for purposes of ratifying the Thirteenth Amendment, but, though nothing about those governments had changed by 1867, Congress denied their legitimacy when they voted to reject the Fourteenth Amendment.
Next, as President Johnson said in his veto message, the act deprived most white southerners of their political and civil rights on a wholesale basis, without due process of law, in violation of the Fifth Amendment. Moreover, it effectively served as “a bill of attainder against 9,000,000 people at once,” all of whom were excluded from a hearing through their representatives, on the basis of “an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence.” Further, the preclusion of southern representation in Congress by statute distorted one feature of the Constitution to annul two other features. Article I, Section 5, which declares that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own members,” clearly contemplates the judging of each member individually, through hearings and the taking of evidence. Yet by arbitrarily excluding members from specified states, Congressmen were not judging; they were refusing to judge. By doing so, they deprived the designated states of their constitutional rights to representation as provided by Article I, Sections 2 and 3, and Article V.
Finally, the coercive quality of the act made it unconstitutional as well. Several sets of aims underlay the coerciveness, but Senator James Doolittle of Wisconsin certainly identified one of them when he said that “the people of the South have rejected the constitutional amendment,” and we will therefore “march upon them and force them to adopt it at the point of the bayonet” and rule them with military force “until they do adopt it.”
The Supreme Court Declines to Intervene
In response to the Reconstruction Act and its supplementary legislation, the South challenged them in the Supreme Court. The South had grounds for hoping that the Court would strike down the legislation, for it had faced up to Congress in the Milligan case and had recently overturned state and federal loyalty oaths; but the hope turned out to be ill-founded. Mississippi led off by seeking an injunction against President Johnson and the district military commander, restraining them from executing and enforcing the acts. The Court declined on the ground that it lacked the power. Then Georgia brought a suit against Secretary of War Edwin Stanton, General Ulysses S. Grant, and the commander of the Third Military District, seeking a similar injunction on the ground that Congress had no power to annihilate a state government and thereby deprive its citizens of legal and political rights. The Court declined, holding that for a question to be judicially determined, “the rights in danger … must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court.” This language hinted broadly that if a suit were brought on an issue of property rights, the Court would hear it and rule on the constitutionality of the Reconstruction Acts. Such a case, Ex parte McCardle, was brought early in 1868, and the Court heard arguments in March, just before the impeachment trial of President Johnson got under way. In that highly charged atmosphere Congress passed, as a rider to a bill regarding appeals in customs and revenue cases, a measure removing the Court’s jurisdiction in the McCardle case. That, for practical purposes, killed all prospects of a judicial overthrow of the Reconstruction Acts.
Despairing of stopping the congressional juggernaut, ruled by military commanders who removed governors and judges at will, and swept by rumors that Congress intended to confiscate and redistribute their property (as some Radicals indeed did), the southern states began to capitulate. The ambience is captured in the journals of the House and Senate of Louisiana for the opening day of their sessions in late June 1868. The proceedings began with the reading of orders from General Grant, stressing the supremacy of the army over the “provisional” civil government, established in accordance with the Reconstruction Act. Armed federal soldiers milled around outside. They were still there when the puppet legislature voted to ratify the Fourteenth Amendment ten days later.
Southerners made some feeble attempts at resistance. In February Alabama whites had sought to prevent the adoption of a constitution that was being forced on them under the Reconstruction Act. Using a tactic contemplated in other states as well, they stayed away from the polls to prevent the new constitution from being approved by a majority of the registered voters. Of the 170,631 registered voters, fewer than 71,000 turned out; and though 69,807 of these voted to ratify, that was less than a majority. Congress responded by promptly repealing the majority-of-the-voters requirement and allowing a bare majority of votes cast to suffice.
Ratification: The Essential Contradiction
We now come to the pivotal point upon which the constitutionality of the adoption of the Fourteenth Amendment turns. Let us assume that the amendment had been constitutionally proposed; assume that the ratifications in Tennessee, Oregon, and West Virginia were proper and should have been counted; and assume that the rescissions by New Jersey and Ohio were illegal and that their ratifications should be counted. Even so, as of April 1, 1868, the approval of six more states was necessary to validate the amendment. Let us further assume that the Reconstruction Act of March 2, 1867, was constitutional, and that ratification by the governments of the reconstituted southern states would count toward the necessary total.
Even if we make all these assumptions, it remains a fact that the southern state governments could have a voice in ratifying the amendment only if they were duly recognized as governments at the time they acted on the amendment. Congress had taken it upon itself-properly or improperly, it does not matter for present purposes-to be the arbiter of whether the governments were legitimate.
Now let us see…
Arkansas was the first to act. It adopted its new state constitution on April 1, 1868. Two days later the legislature considered the Fourteenth Amendment, and by April 6 both houses had voted for ratification. But no resolution to recognize the loyalty of Arkansas’s government was proposed in Congress until May 7, and the resolution was not adopted until mid-June. Therefore the vote on the Fourteenth Amendment had been taken by a state which, under the congressional act of March 2, 1867, still had “no legal state government.”
Next came Florida, which in May 1868, approved a new constitution that had been drafted by a convention presided over by Colonel John Sprague of the United States Army, in full military uniform. The new legislature met in June and, “as dictated by the Acts of Congress as conditions precedent to admission,” ratified the amendment on June 9. But a problem arose when Congress debated whether to readmit the state: it turned out that the wording of the amendment as adopted by Florida differed in several particulars from the phraseology proposed by Congress. Some senators objected that Florida had therefore not properly adopted the amendment. After some desultory discussion, Senator Frederick Frelinghausen of New Jersey checked the ratifications of four states chosen at random-New York, Pennsylvania, Michigan, and Wisconsin-and reported that none had ratified the amendment exactly as proposed by Congress. “In the ratification by Wisconsin,” he said, “in one sentence, there were four or five errors,” some of them substantive. He added that if he examined the ratifications of all the states, he would probably “find like inaccuracies in each certificate.” Instead of ruling that no state had properly ratified, however, Congress decided that ratification in any form was acceptable; and Florida was accordingly readmitted to statehood as a “legal government.”
At that point Congress changed the rules somewhat. Heretofore, ratification of the Fourteenth Amendment had been a necessary qualification for readmission to statehood, but not a sufficient one, which is to say that after the non-government of a state ratified, Congress would consider readmission. An act passed June 25, 1868, altered the procedure. The preamble of the act declared that several southern states had “framed constitutions of State government which are republican”; article one enacted that each of them “shall be entitled and admitted to representation in Congress as a State of the Union” automatically when they ratified the amendment. Obviously, however, they were not states at the time they ratified, for if they were, they would already have been “entitled” to representation.
On those terms, North Carolina voted to ratify on July 2, South Carolina and Louisiana on July 9, and Alabama on July 16. According to the tally kept by Secretary of State William H. Seward, that made twenty-eight states, and on July 20 he proclaimed the amendment to be ratified. After some wrangling over who had the authority to determine, Congress confirmed its adoption.
Clearly, then, the Fourteenth Amendment was never constitutionally ratified, even if it had been constitutionally proposed. The question now becomes, so what? The critics of the 1950s and 1960s, cited earlier, called for the Supreme Court to rule that it was, not a part of the Constitution. To the certain objection that such a ruling would overturn a huge body of judicial precedent, they pointed out that the Court had, in Erie v. Tompkins (1938), overturned its earlier ruling in Swift v. Tyson (1842) and with it nearly a century of case law, and that to right a long-standing wrong was more important than precedent. Perhaps. Even so, though no one ever became rich by predicting what the Supreme Court would do from one generation to another, it seems safe to predict that the Fourteenth Amendment is here to stay, despite its origins. It behooves us, however, to be aware of the Fourteenth’s history, lest similar irregularities should surround another amendment in the future.
This article was originally published in the Georgia Journal of Southern Legal History in 1991.
Written by Forrest McDonald for The Abbeville Institute ~ April 23, 2014
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