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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Lincoln Derangement Syndrome

Somebody named JD Longstreet is very, very upset that Southerners and Southern history are not given the respect they deserve in the media, schools and commentary class (hat tip to Ol’ Broad).  Given the Left’s infernal obsession with casting conservative views and traditional American values as racist, I would be inclined to sympathize with him…except for the fact that his post rapidly devolves into an unhinged, duplicitous tirade that is guilty of the very historical revisionism Longstreet claims to oppose.

Because I apparently didn’t have enough better to occupy my time with tonight, I decided to conduct a closer examination of this post.  Click on through to check out my findings – if you dare: Continue reading

What We Can Learn from Tocqueville & Lincoln

The following is a modified & abridged version of a paper I recently wrote after a week-long seminar here at Hillsdale College, regarding the wisdom of Alexis de Tocqueville & Abraham Lincoln.  Both men though deeply about human equality, individual liberty, and what it took to maintain a democratic society.  I think both are essential to a substantive, fully-formed political philosophy, especially today.

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Having lost his grandparents to the bloody French Revolution, Alexis de Tocqueville knew all too well how volatile the passions of a people intoxicated by newfound equality could be, and as a student of human nature, he knew that belief in freedom, the essence of which is independence from control, and passion for equality, which can manifest as a desire to level the conditions of all, could easily come into conflict.  In the United States, equality of conditions reigned, but curiously, America seemed largely unscathed by democracy’s dark side.

In America, Tocqueville found several political and cultural influences that kept Americans agreeable to one another and obedient to their government.  The French thinker noted that the United States government had strong governmental centralization (the necessary authority of the national government to decide national affairs), but almost no administrative centralization (federal influence over the affairs of states or individuals), yielding an effective government whose proper prerogatives were respected because it generally did not give the people cause for concern about their personal freedom.  Tocqueville thought increased administrative centralization would be the biggest threat to liberty in democratic societies, leading to a “soft despotism” under which the federal government assumed ever-increasing control over the people’s lives in the name of providing for them.

On the cultural side, Tocqueville hailed several “habits of liberty”—Christianity, which turns man’s attention to his responsibilities towards others; civic associations, which teach men to know one another and to better govern; marriage, which calms man and counters excessive individualism; newspapers, which also promote social cooperation; and the doctrine of “self-interest well-understood,” or the understanding that it is in the best interest of every man to respect the rights of his neighbors, that his own rights will be respected.

Abraham Lincoln rose to prominence as tension over slavery reached its breaking point, with numerous southern states threatening to secede from the union to preserve the “peculiar institution,” and secessionists such as Confederate Vice President Alexander Stephens dismissing “the assumption of the equality of races,” on which the American Founders based government, as “fundamentally wrong.”  In contrast, Lincoln hailed the Declaration’s principles as “the definitions and axioms of liberty,” which inspired all of his political thoughts.  For Lincoln, liberty and equality were simple: liberty was the right to govern one’s self, and equality meant that all have an equal claim to the Declaration’s promise of “life, liberty, and the pursuit of happiness,” regardless of race.  Lincoln believed that the Declaration established timeless, unchanging moral principles, as evidenced by his observation that declaring human equality had no practical use in the revolutionaries’ struggle against Great Britain, but could eventually be used to free slaves, as it would remain true in the future.  To Lincoln, slavery was an obscenity; he noted wryly that nobody who called it a good would think it good enough for themselves, and confessed that “whenever I hear anyone arguing for slavery, I feel a strong impulse to see it tried on him personally.”

Despite this impulse, however, Lincoln refused to support or enact any emancipation efforts that failed to pass constitutional scrutiny.  Though he loved liberty, he also loved “reverence for the laws,” which he saw as the nation’s “political religion.”  Slavery was unjust, but ignoring the Constitution whenever it suited one’s political desires, however noble, would be dangerous, for it would undermine the legitimacy of constitutional government and endanger everyone’s liberty.  It was this belief in the rule of law that led Lincoln to wage the Civil War to preserve the Union.  Lincoln understood that America’s peaceful democratic system had established ballots as “the rightful and peaceful successors to bullets” in the transfer of political power, and secession—the idea that any state dissatisfied with democracy’s results could simply ignore them and forcibly resist their enforcement—threatened to undo that great advance, and, if carried to its logical conclusion, would lead to anarchy.

Today, America is governed by an ever-expanding federal government, proactive in every level of society; and progressive ideology, which views the Declaration of Independence as outdated and the Constitution as a “living” document to be reinterpreted by each generation, is very much in vogue.  Tocqueville’s fears about soft despotism and Lincoln’s fears that Americans could forget her founding creed have both come true.  But we need not lose hope: Americans longing to learn the principles liberty needs, and how to restore them, have all the tools they need in the wisdom of our forefathers; we just need a renewed focus on educating our countrymen in their timelessness.

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Further resources on Lincoln & Tocqueville:

Abraham Lincoln Online—has many of Lincoln’s writings & speeches

Vindicating Lincoln: Defending the Politics of America’s Greatest President by Thomas Krannawitter (review here)

Democracy in America by Alexis de Tocqueville (full text available online here)