Is the Fourteenth Amendment Illegitimate?

One of NewsReal’s regular commenters, the Inquisitor, seems to think so:

…the 14th Amendment is not the law of the land as it “… was never constitutionally proposed to the states by Congress and never constitutionally ratified by the states.”

I must admit I’ve never heard this one before, but it smells like more of the same old neo-Confederate revisionism that libertarians and paleoconservatives just can’t get enough of.  And sure enough, Inquisitor cites Kevin Gutzman’s Politically Incorrect Guide to the Constitution as his source.  I haven’t read Gutzman, but PIG series is known for being pretty hit & miss when it comes to American history and constitutional theory.

Against my better judgment about how to productively use my time, I decided to see what I could find about this startling constitutional revelation.  I found an article by Gene Healy at the dubious LewRockwell.com, entitled “The Squalid Fourteenth Amendment.”  That should do it.

As the legally reconstituted Southern states were busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated Congress refused to seat Southern representatives and Senators. This allowed the remaining, rump Congress to propose the Fourteenth Amendment, consistent with Article V’s requirement of a 2/3 majority for sending a proposed amendment to the states. Never mind that Congress also clearly violated that Article’s provision that “no State, without its Consent, shall be deprived of its equal suffrage in the Senate.”

The Constitution also says that “No State shall enter into any Treaty, Alliance, or Confederation,” and that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State, or engage in War, unless actually invaded.”  Oh, so now the rebels should get the protection of the Constitution they tried to withdraw from? You try to break apart the country in the name of “the great truth that the negro is not equal to the white man,” and you have no right to expect to be welcomed back into the Union immediately.

Though the Northern states ratified the Fourteenth Amendment, it was decisively rejected by the Southern and border states, failing to secure the 3/4 of the states necessary for ratification under Article V. The Radical Republicans responded with the Reconstruction Act of 1867, which virtually expelled the Southern states from the Union and placed them under martial law. To end military rule, the Southern states were required to ratify the Fourteenth Amendment. As one Republican described the situation: “the people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet.”

President Andrew Johnson saw the Reconstruction Act as “absolute despotism,” a “bill of attainder against 9,000,000 people.” […] The rump Republican Congress overrode Johnson’s veto and enacted statutes that shrank both the Supreme Court’s appellate jurisdiction and the Court itself – just in case the judicial branch got any funny ideas of its own about constitutionalism. Jackboot on its neck, the South ratified, but not before New Jersey and Ohio, aghast at Republican tyranny, rescinded their previous ratifications of the mendment. Even with the fictional consent of the Southern states, the republicans needed New Jersey and Ohio to put the amendment over the top. No matter; by joint resolution, Congress declared the amendment valid. Thus it – you’ll excuse the phrasing– “passed into law.”

The Constitution requires “three fourths of the several states” to ratify amendments.  In 1868, the Union had 37 states, requiring 28 states to ratify the 14th Amendment.  By 1868, it had thirty ratifications, meaning that New Jersey and Ohio’s withdrawals would bring the number down to…28.  (And for what it’s worth, since then, every state which originally rejected the 14th Amendment has reversed its decision.)

Once again, paleo-libertarians appear to fare little better with American history than the Left.

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2 thoughts on “Is the Fourteenth Amendment Illegitimate?

  1. Calvin:
    The understood meaning of the prohibitions of Article I, Section 10 which is cite is that no State may do those things WHILE IN THE UNION. Withdrawing from the union, seceding, renders those restrictions null and void, as the contract has been terminated. To argue otherwise is poor logic.

    As to States who rescinded their ratifications, Oregon also rescinded hers. That brings the total to 27, and, therefore, inadequate for ratification. There is much skullduggery surrounding how the radical republicans dodged this inconvenient fact and declared the thing ratified anyway. Once it fails, it fails. It would need to be reintroduced for another ratification vote after that. That hasn’t happened.

    Concerning your condescending remark about the Southern States not having the protections of the constitution they ‘tried to withdraw from’ and therefore should not be ‘welcomed back into the union immediately’ is hopelessly nonsensical and devoid of the ‘principles of the American founding’ emblazoned beneath your photo.

    First, the unrelenting claim of your hero, lincoln, and his republican allies was that the Southern States NEVER LEFT THE UNION in the first place. They were merely in ‘rebellion’. Accepting, for the moment, lincoln’s argument, then why should the Southern States have to be READMITTED? And if they never left, then how could they legally or morally be deprived of their rights and protections under the constitution? And if the war proved the lincoln/republican assertion that the union was indivisible, then how could the radical republicans kick the Southern States OUT of the indivisible union and place them under military occupation until they ratified the 14th amendment? And if they were OUT of the union, how could they legally cast votes to ratify it? Aren’t the Southern States’ ratifications also null? I mean, if I’m not a member of the club, isn’t it an absurdity for me to claim that I can have a legal vote in its affairs? Lincoln worshipers never want to anwer these questions, as honest answers would reveal their demigod and his allies to be the scoundrels and tyrants they were. Such is the circular, deluded reasoning (sic) of the lincoln cultists.

    Is Hillsdale College near the Claremont Institute? If so, then as the Dixie Chicks say, ‘there’s your trouble’.

    • “The understood meaning of the prohibitions of Article I, Section 10 which is cite is that no State may do those things WHILE IN THE UNION. Withdrawing from the union, seceding, renders those restrictions null and void, as the contract has been terminated.”

      It only renders those restrictions null and void if secession is legal to begin with, and therefore their newly-independent status is on the level. Neither of which was the case, based on the judgment of most of our Founders who discussed the nature of union.

      “As to States who rescinded their ratifications, Oregon also rescinded hers. That brings the total to 27, and, therefore, inadequate for ratification. There is much skullduggery surrounding how the radical republicans dodged this inconvenient fact and declared the thing ratified anyway.”

      History according to DiLorenzo? Be careful with that.

      In any event, be sure to let me know how trying to convince people the 14th Amendment is illegal goes…

      Yes, how dare I not show sufficient respect for those chose rebellion over accepting an election that didn’t go their way and triggered the bloodiest war in American history.

      Concerning your final angry paragraph, I like how you take Lincoln’s words, compare them to the actions of people who took over Reconstruction AFTER Lincoln’s death who were angry that Lincoln was going too easy on the South, and then condemn the whole thing as one like-minded entity that represents all of evil Northern, Lincoln-cultist thinking.

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