The 14th amendment unconstitutional?

The deterioration of every government begins with the decay of the principles on which it was founded. -- C.L. de Montesquieu

The purported Fourteenth Amendment to the U.S. Constitution is and should be held to be ineffective, invalid, null, void, and unconstitutional for the following reasons: 1. The Joint Resolution proposing said Amendment was not submitted to or adopted by a Constitutional Congress as required by Article 1, Section 3, and Article V of the U.S. Constitution. 2. The Joint Resolution was not submitted to the President for his approval as required by Article 1, Section 5 of the Constitution. 3. The proposed Fourteenth Amendment was rejected by more than one fourth of all the States in the Union, and it was never ratified by three fourths of all the States in the Union as required by Article V, Section 1 of the Constitution. The U.S. Constitution provides: "The Senate of the United States shall be composed of two Senators from each State...."(1) No State, without its consent, shall be deprived of its equal suffrage in the Senate.(2) The fact that twenty-three Senators had been unlawfully excluded from the U.S. Senate in order to secure a two thirds vote for the adoption of the Joint Resolution proposing the Fourteenth Amendment is shown by Resolutions of protest adopted by the following State Legislatures. The New Jersey Legislature by Resolution on March 27, 1868, protested as follows:

The said proposed amendment not having yet received the assent of three fourths of the States, which is necessary to make it valid, the natural and constitutional right of this State to withdraw its assent is undeniable.... 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 the 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 house.(3)

The Alabama Legislature protested against being deprived of representation in the Senate of the U.S. Congress.(4) The Texas Legislature, by Resolution on October 15, 1866, protested as follows:

The Amendment to the Constitution proposed by this joint resolution as Article XIV is presented to the Legislature of Texas for its action thereon, under Article V of that Constitution. This Article V, providing the mode of making amendments to that instrument, contemplates the participation by all the States through their representatives in Congress, in proposing amendments. As representatives from nearly one third of the States were excluded from the Congress proposing the amendments, the constitutional requirement was not complied with; it was violated in letter and in spirit; and the proposing of these amendments to States which were excluded from all participation in their initiation in Congress, is a nullity.(5)

The Arkansas Legislature, by Resolution on December 17, 1866, protested as follows:

The Constitution authorized two thirds of both houses of Congress to propose amendments; and, as eleven States were excluded from deliberation and decision upon the one now submitted, the conclusion is inevitable that it is not proposed by legal authority, but in palpable violation of the Constitution.(6)

The Georgia Legislature, by Resolution on November 9, 1866, protested as follows:

Since the reorganization of the State government, Georgia has elected Senators and Representatives. So has every other State. They have been arbitrarily refused admission to their seats, not on the ground that the qualifications of the members elected did not conform to the fourth paragraph, second section, first Article of the Constitution, but because their right of representation was denied by a portion of the States having equal but not greater rights than themselves. They have in fact been forcibly excluded; and, inasmuch as all legislative power granted by the States to the Congress is defined, and this power of exclusion is not among the powers expressly or by implication defined, the assemblage, at the capital, of representatives from a portion of the States, to the exclusion of the representatives of another portion, cannot be a constitutional Congress, when the representation of each State forms an integral part of the whole. This amendment is tendered to Georgia for ratification, under that power in the Constitution which authorizes two thirds of the Congress to propose amendments. We have endeavored to establish that Georgia had a right, in the first place, as a part of the Congress, to act upon the question, "Shall these amendments be proposed?" Every other excluded State had the same right. The first constitutional privilege has been arbitrarily denied. Had these amendments been submitted to a constitutional Congress, they would never have been proposed to the States. Two thirds of the whole Congress never would have proposed to eleven States voluntarily to reduce their political power in the Union, and at the same time, disfranchise the larger portion of the intellect, integrity, and patriotism of eleven co-equal States.(7)

The Florida Legislature, by Resolution on December 5, 1866, protested as follows:

Let this alteration be made in the organic system and some new and more startling demands may or may not be required by the predominant party previous to allowing the ten States now unlawfully and unconstitutionally deprived of their right of representation as guaranteed by the Constitution of this country and there is no act, not even that of rebellion, can deprive them.(8)

The South Carolina Legislature, by Resolution on November 27, 1866, protested as follows:

Eleven of the Southern States, including South Carolina, are deprived of their representation in Congress. Although their Senators and Representatives have been duly elected and have presented themselves for the purpose of taking their seats, their credentials have, in most instances, been laid upon the table without being read, or have been referred to a committee, who have failed to make any report on the subject. In short, Congress has refused to exercise its Constitutional functions, and decide either upon the election, the return, or the qualification of these selected by the States and people to represent us. Some of the Senators and Representatives from the Southern States were prepared to take the test oath, but even these have been persistently ignored, and kept out of the seats to which they were entitled under the Constitution and laws. Hence this amendment has not been proposed by "two thirds of both Houses" of a legally constituted Congress, and is not, Constitutionally or legitimately, before a single Legislature for ratification.(9)

The North Carolina Legislature, by Resolution on December 6, 1866, protested as follows:

The Federal Constitution declares in substance, that Congress shall consist of a House of Representatives, composed of members apportioned among the respective States in the ratio of their population and of a Senate, composed of two members from each State. And in the Article which concerns Amendments, it is expressly provided that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." The contemplated Amendment was not proposed to the States by a Congress thus constituted. At the time of its adoption, the eleven seceding States were deprived of representation both in the Senate and House, although they all, except the State of Texas, had Senators and Representatives duly elected and claiming their privileges under the Constitution. In consequence of this, these States had no voice on the important question of proposing the Amendment. Had they been allowed to give their votes, the proposition would doubtless have failed to command the required two thirds majority.... If the votes of these States are necessary to a valid ratification of the Amendment, they were equally necessary on the question of proposing it to the States; for it would be difficult, in the opinion of the Committee, to show by what process in logic, men of intelligence, could arrive at a different conclusion.(10)

Article I, Section 7 of the United States Constitution provides that not only every bill have been passed by the House of Representatives and the Senate of the United States Congress, but that:

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

The Joint Resolution proposing the Fourteenth Amendment(11) was never presented to the President of the United States for his approval, as President Andrew Johnson stated in his message on June 22, 1866. Therefore the Joint Resolution did not take effect. Pretermitting the ineffectiveness of said Resolution, as demonstrated above, fifteen States out of the then thirty-seven States of the Union rejected the proposed Fourteenth Amendment between the date of its submission to the States by the Secretary of State on June 16, 1866, and March 24, 1868, thereby further nullifying said Resolution and making it impossible for its ratification by the constitutionally required three fourths of such States, as shown by the rejections thereof by the Legislatures of the following States: Texas rejected the Fourteenth Amendment on October 27, 1866.(12) Georgia rejected it on November 9, 1866.(13) Florida rejected it on December 6, 1866.(14) Alabama rejected it on December 7, 1866.(15) Arkansas rejected it on December 17, 1866.(16) North Carolina rejected it on December 17, 1866.(17) South Carolina rejected it on December 20, 1866.(18) Kentucky rejected it on January 8, 1867.(19) Virginia rejected it on January 9, 1867.(20) Louisiana rejected it on February 6, 1867.(21) Delaware rejected it on February 7, 1867.(22) Maryland rejected it on March 23, 1867.(23) Mississippi rejected it on January 31, 1868.(24) Ohio rejected it on January 15, 1868.(25) New Jersey rejected it on March 24, 1868.(26) There is no question that all of the Southern States which rejected the Fourteenth Amendment had legally constituted governments, were fully recognized by the Federal Government, and were functioning as member States of the Union at the time of their rejection. President Andrew Johnson in his veto message of March 2, 1867, pointed out: "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."(27) If further proof were needed that these States were operating under legally constituted governments as member States of the Union, the ratification of the Thirteenth Amendment on December 8, 1865 undoubtedly supplies this official proof. If the Southern States were not member States of the Union, the Thirteenth Amendment would not have been submitted to their Legislatures for ratification. The Thirteenth Amendment to the United States Constitution was proposed by Joint Resolution of Congress(28) and was approved February 1, 1865 by President Abraham Lincoln, as required by Article I, Section 7 of the United States Constitution. The President's signature is affixed to the Resolution. The Thirteenth Amendment was ratified by twenty-seven States of the then thirty-six States of the Union, including the Southern States of Virginia, Louisiana, Arkansas, South Carolina, North Carolina, Alabama, and Georgia. This is shown by the Proclamation of the Secretary of State on December 18, 1865.(29) Without the votes of these seven Southern State Legislatures the Thirteenth Amendment would have failed. There can be no doubt but that the ratification by these seven Southern States of the Thirteenth Amendment again established the fact that their Legislatures and State governments were duly and lawfully constituted and functioning as such under their State constitutions. Furthermore, on April 2, 1866, President Andrew Johnson issued a proclamation that stated, "The insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida is at an end, and is henceforth to be so regarded."(30) On August 20, 1866, President Johnson issued another proclamation(31) pointing out the fact that the Senate and House of Representatives had adopted identical Resolutions on July 22(32) and July 25, 1861,(33) that the Civil War forced by disunionists of the Southern States, was not waged for the purpose of conquest or to overthrow the rights and established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all the equality and rights of the several States unimpaired, and that as soon as these objects were accomplished, the war ought to cease. The President's proclamation on April 2, 1866(34) declared that the insurrection in the other Southern States, except Texas, no longer existed. On August 20, 1866, the President proclaimed that the insurrection in the State of Texas had been completely ended. He continued, "And I do further proclaim that the said insurrection is at an end, and that peace, order, tranquility, and civil authority now exist, in and throughout the whole of the United States of America."(35) The State of Louisiana rejected the Fourteenth Amendment on February 6, 1867, making it the tenth State to have rejected the same, or more than one fourth of the total number of thirty-six States of the Union as of that date. Because this left less than three fourths of the States to ratify the Fourteenth Amendment, it failed of ratification in fact and in law, and it could not have been revived except by a new Joint Resolution of the Senate and House of Representatives in accordance with the constitutional requirement. Faced with the positive failure of ratification of the Fourteenth Amendment, both Houses of Congress passed over the veto of the President three Acts, known as the Reconstruction Acts, between the dates of March 2 and July 19, 1867. The third of said Acts(36) was designed to illegally remove with "Military force" the lawfully constituted State Legislatures of the ten Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana, and Texas. In President Andrew Johnson's veto message on the Reconstruction Act of March 2, 1867, he pointed out these unconstitutionalities:

If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live. That work is his work, and it cannot be properly taken out of his hands. All this legislation proceeds upon the contrary assumption that the people of these States shall have no constitution, except such as may be arbitrarily dictated by Congress, and formed under the restraint of military rule. A plain statement of facts makes this evident. In all these States there are existing constitutions, framed in the accustomed way by the people. Congress, however, declares that these constitutions are not "loyal and republican" and requires the people to form them anew. What, then, in the opinion of Congress, is necessary to make the constitution of a State "loyal and republican"? The original act answers this question: "It is universal negro suffrage" -- a question which the federal Constitution leaves exclusively to the States themselves. All this legislative machinery of martial law, military coercion, and political disfranchisement is avowedly for that purpose and none other. The existing constitutions of the ten States, conform to the acknowledged standards of loyalty and republicanism. Indeed, if there are degrees in republican forms of government, their constitutions are more republican now, than when these States -- four of which were members of the original thirteen -- first became members of the Union.(37)

In President Johnson's veto message regarding the Reconstruction Act of July 19, 1867, he pointed out various unconstitutionalities as follows:

The veto of the original bill of the 2d of March was based on two distinct grounds -- the interference of Congress in matters strictly appertaining to the reserved powers of the States, and the establishment of military tribunals for the trial of citizens in time of peace.... A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by federal officers, who are to perform the very duties on its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal State government by the same federal agency.... It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867. During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be distracted. The last act on this subject was passed July 23, 1866, by which every one of these ten States was arranged into districts and circuits. They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment, it was proclaimed to be a part of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery. As to the other constitutional amendment having reference to suffrage, it happens that these States have not accepted it. The consequence is, that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States. Again, in the machinery of the internal revenue laws, all these States are distracted, not as "Territories," but as "States." So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States. To me these considerations are conclusive of the unconstitutionality of this part of the bill before me, and I earnestly commend their consideration to the deliberate judgment of Congress. (And now to the Court.) Within a period of less than a year, the legislation of Congress has attempted to strip the executive department of the government of its essential powers. The Constitution, and the oath provided in it, devolve upon the President the power and duty to see that the laws are faithfully executed. The Constitution, in order to carry out this power, gives him the choice of the agents, and makes them subject to his control and supervision. But in the execution of these laws the constitutional obligation upon the President remains, but the powers to exercise that constitutional duty is effectually taken away. The military commander is, as to the power of appointment, made to take the place of the President, and the General of the Army the place of the Senate; and any attempt on the part of the President to assert his own constitutional power may, under pretense of law, be met by official insubordination. It is to be feared that these military officers, looking to the authority given by these laws rather than to the letter of the Constitution, will recognize no authority but the commander of the district and the General of the Army. If there were no other objection than this to this proposed legislation, it would be sufficient.(38)

No one can contend that the Reconstruction Acts were ever upheld as being valid and constitutional. They were brought into question, but the courts either avoided decision or were prevented by Congress from finally adjudicating upon their constitutionality. In Mississippi v. President Andrew Johnson,(39) where the suit sought to enjoin the President of the United States from enforcing provisions of the Reconstruction Acts, the U.S. Supreme Court held that the President could not be adjoined because for the Judicial Department of the government to attempt to enforce the performance of the duties of the President might be justly characterized, in the language of Chief Justice Marshall, as "an absurd and excessive extravagance." The Court further said that if it granted the injunction against the enforcement of the Reconstruction Acts, and if the President refused obedience, it was needless to observe that the Court was without power to enforce its process. In a joint action, the States of Georgia and Mississippi brought suit against the President and the Secretary of War. The Court said:

The bill then sets forth that the intent and design of the Acts of Congress, as apparent on their face and by their terms, are to overthrow and annul this existing State government, and to erect another and different government in its place, unauthorized by the Constitution and in defiance of its guaranties; and that, in furtherance of this intent and design, the defendants, the Secretary of War, the General of the Army, and Major General Pope, acting under orders of the President, are about setting in motion a portion of the army to take military possession of the State, and threaten to subvert her government and subject her people to military rule; that the State is holding inadequate means to resist the power and force of the Executive Department of the United States; and she therefore insists that such protection can, and ought to be afforded by a decree or order of this court in the premises.(40)

The applications for injunction by these two States to prohibit the Executive Department from carrying out the provisions of the Reconstruction Acts directed to the overthrow of their government, including this dissolution of their State Legislatures, were denied on the grounds that the organization of the government into three great departments -- the Executive, Legislative, and Judicial -- carried limitations of the powers of each by the Constitution. This case went the same way as the previous case of Mississippi against President Johnson and was dismissed without adjudicating upon the constitutionality of the Reconstruction Acts. In another case, ex parte William H. McCradle,(41) a petition for the writ of habeas corpus for unlawful restraint by military force of a Citizen not in the military service of the United States was before the United States Supreme Court. After the case was argued and taken under advisement, and before conference in regarding the decision to be made, Congress passed an emergency act,(42) vetoed by the President and repassed over his veto, repealing the jurisdiction of the U.S. Supreme Court in such case. Accordingly, the Supreme Court dismissed the appeal without passing upon the constitutionality of the Reconstruction Acts, under which the non-military Citizen was held without benefit of writ of habeas corpus, in violation of Article I, Section 9 of the U.S. Constitution. That Act of Congress placed the Reconstruction Acts beyond judicial recourse and avoided tests of constitutionality. It is recorded that one of the Supreme Court Justices, Grier, protested against the action of the Court as follows:

This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights, not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for Legislative interposition to suppress our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say... I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted.

The ten States were organized into Military Districts under the unconstitutional Reconstruction Acts, their lawfully constituted Legislatures were illegally removed by "military force," and were replaced by rump, so-called Legislatures, seven of which carried out military orders and pretended to ratify the Fourteenth Amendment as follows: Arkansas on April 6, 1868;(43) North Carolina on July 2, 1868;(44) Florida on June 9, 1868;(45) Louisiana on July 9, 1868;(46) South Carolina on July 9, 1868;(47) Alabama on July 13, 1868;(48) Georgia on July 21, 1868.(49) Of the above seven States whose Legislatures were removed and replaced by rump, so-called Legislatures, six Legislatures of the States of Louisiana, Arkansas, South Carolina, Alabama, North Carolina, and Georgia had ratified the Thirteenth Amendment as shown by the Secretary of State's Proclamation of December 18, 1865, without which ratifications, the Thirteenth Amendment could not and would not have been ratified because said six States made a total of twenty-seven out of thirty-six States, or exactly three fourths of the number required by Article V of the Constitution for ratification. Furthermore, governments of the States of Louisiana and Arkansas had been re-established under a Proclamation issued by President Abraham Lincoln dated December 8, 1863.(50) The government of North Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated May 29, 1865.(51) The government of Georgia had been re-established under a Proclamation issued by President Johnson dated June 17, 1865.(52) The government of Alabama had been re-established under a Proclamation issued by President Johnson dated June 21, 1865.(53) The government of South Carolina had been re-established under a Proclamation issued by President Johnson dated June 30, 1865.(54) These three Reconstruction Acts, under which the above state Legislatures were illegally removed and unlawful rump, or so-called Legislatures were substituted in a mock effort to ratify the Fourteenth Amendment, were unconstitutional, null and void, ab initio, and all acts done thereunder were also null and void, including the purported ratification of the Fourteenth Amendment by said six Southern puppet Legislatures of Arkansas, North Carolina, Louisiana, South Carolina, Alabama, and Georgia. Those Reconstruction Acts of Congress and all acts and things unlawfully done thereunder were in violation of Article IV, Section 4 of the United States Constitution, which required the United States to guarantee a republican form of government. They violated Article 1, Section 3, and Article V of the Constitution which entitled every State in the Union to two Senators because under provisions of these unlawful Acts of Congress, ten States were deprived of having two Senators, or equal suffrage in the Senate. The Secretary of State expressed doubt as to whether three fourths of the required States had ratified the Fourteenth Amendment, as shown by his Proclamation of July 20, 1868.(55) Promptly on July 21, 1868, a Joint Resolution was adopted by the Senate and House of Representatives declaring that three fourths of the several States of the Union had indeed ratified the Fourteenth Amendment.(56) That Resolution, however, included the purported ratifications by the unlawful puppet Legislatures of five States -- Arkansas, North Carolina, Louisiana, South Carolina, and Alabama -- which had previously rejected the Fourteenth Amendment by action of their lawfully constituted Legislatures, as shown above. This Joint Resolution assumed to perform the function of the Secretary of State in whom Congress, by Act of April 20, 1818, had vested the function of issuing such Proclamation declaring the ratification of Constitutional Amendments. The Secretary of State bowed to the action of Congress and issued his Proclamation of July 28, 1868,(57) in which he stated that he was acting under authority of the Act of April 20, 1818, but pursuant to said Resolution of July 21, 1868. He listed three fourths or so of the then thirty-seven States as having ratified the Fourteenth Amendment, including the purported ratification by the unlawful puppet Legislatures of the states of Arkansas, North Carolina, Louisiana, South Carolina, and Alabama. Without said five purported ratifications there would have been only twenty-five States left to ratify out of thirty-seven when a minimum of twenty-eight States was required by three fourths of the States of the Union. The Joint Resolution of Congress and the resulting Proclamation of the Secretary of State also included purported ratifications by the States of Ohio and New Jersey, although the Proclamation recognized the fact that the Legislatures of said States, several months previously, had withdrawn their ratifications and effectively rejected the Fourteenth Amendment in January, 1868 and April, 1868. Therefore, deducting these two States from the purported ratification of the Fourteenth Amendment, only twenty-three State ratifications at most could be claimed -- five less than the required number required to ratify the Amendment. From all of the above documented historic facts, it is inescapable that the Fourteenth Amendment was never validly adopted as an article of the Constitution, that it has no legal effect, and it should be declared by the Courts to be unconstitutional, and therefore, null, void, and of no effect. The defenders of the Fourteenth Amendment contend that the U.S. Supreme Court has decided finally upon its validity. In what is considered the leading case, Coleman v. Miller, the U.S. Supreme Court did not uphold the validity of the Fourteenth Amendment. In that case, the Court brushed aside constitutional questions as though they did not exist. For instance, the Court made the following statement:

The legislatures of Georgia, North Carolina, and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868.(58)

The Court gave no consideration to the fact that Georgia, North Carolina, and South Carolina were three of the original States of the Union with valid and existing constitutions on an equal footing with the other original States and those later admitted into the Union. Congress certainly did not have the right to remove those State governments and their Legislatures under unlawful military power set up by the unconstitutional Reconstruction Acts, which had for their purpose the destruction and removal of legal State governments and the nullification of the Constitution. The fact that these three States and seven other Southern States had existing constitutions, were recognized as States of the Union, again and again, had been divided into judicial districts for holding their district and circuit courts of the United States, had been called by Congress to act through their Legislatures upon two Amendments -- the Thirteenth and the Fourteenth -- and by their ratifications had actually made possible the adoption of the Thirteenth, as well as their State governments having been re-established under Presidential Proclamations, as shown by President Johnson's veto message and proclamations, were all brushed aside by the Court in Coleman v. Miller by the statement, "New governments were erected in those States (and in others) under the direction of Congress," and that these new legislatures ratified the Amendment. The U.S. Supreme Court overlooked that it previously had held that at no time were these Southern States out of the Union.(59) In Coleman v. Miller, the Court did not adjudicate upon the invalidity of the Acts of Congress which set aside those State constitutions and abolished their state Legislatures. The Court simply referred to the fact that their legally constituted Legislatures had rejected the Fourteenth Amendment and that the "new legislatures" had ratified it. The Court further overlooked the fact that the State of Virginia was also one of the original States with its constitution and Legislature in full operation under its civil government at the time. In addition, the Court also ignored the fact that the other six Southern States, which were given the same treatment by Congress under the unconstitutional Reconstruction Acts, all had legal constitutions and a republican form of government in each State, as was recognized by Congress by its admission of those stated into the Union. The Court certainly must take judicial cognizance of the fact that before a new State is admitted by Congress into the Union, Congress enacts an Enabling Act to enable the inhabitants of the territory to adopt a constitution to set up a republican form of government as a condition precedent to the admission of the State into the Union, and upon approval of such constitution, Congress then passes the Act of Admission of such stated. All this was ignored and brushed aside by the Supreme Court in the Coleman v. Miller case. However, the Court inadvertently stated:

Whenever official notice is received at the Department of State that any amendment to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.

The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three fourths of the States. Dodge v. Woolsey, 18 How. 331, 15 L.Ed. 401. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, National or State, to alter the method which the Constitution has fixed.(60)

We submit that in none of the cases in which the Court avoided the constitutional issues involved, did it pass upon the constitutionality of that Congress which purported to adopt the Joint Resolution for the Fourteenth Amendment, with eighty Representatives and twenty-three Senators forcibly ejected or denied their seats and their votes on said Resolution, in order to pass the same by a two thirds vote, as pointed out in the New Jersey Legislature Resolution of March 27, 1868. Such a fragmentary Congress also violated the constitutional requirements of Article V that no State, without its consent, shall be deprived of its equal suffrage in the Senate. There is no such thing as giving life to an Amendment illegally proposed or never legally ratified by three-fourths of the States. There is no such thing as Amendment by laches, no such thing as Amendment by waiver, no such thing as Amendment by acquiescence, and no such thing as Amendment by any other means whatsoever except the means specified in Article V of the Constitution itself. It does not suffice to say that there have been hundreds of cases decided under the Fourteenth Amendment to offset the constitutional deficiencies in its proposal or ratification as required by Article V. If hundreds of litigants did not question the validity of the Fourteenth Amendment, or question the same perfunctorily without submitting documentary proof of the facts of record which made its purported adoption unconstitutional, their failure cannot change the Constitution for the millions in America. The same thing is true of laches; the same thing is true of acquiescence; the same thing is true of ill-considered court decisions. To ascribe constitutional life to an alleged Amendment which never came into being according to the specified methods laid down in Article V cannot be done without doing violence to Article V itself. This is true, because the only question open to the courts is whether the alleged Fourteenth Amendment became a part of the Constitution through a method required by Article V. Anything beyond that which a court is called upon to hold in order to validate an Amendment, would be equivalent to writing into Article V another mode of the Amendment process which has never been authorized by the people of the United States of America. On this point, therefore, the question is: Was the Fourteenth Amendment proposed and ratified in accordance with Article V? In answering this question, it is of no real moment that decisions have been rendered in which the parties did not contest or submit proper evidence, or the Court assumed that there was a Fourteenth Amendment. If a statute never in fact passed in Congress, through some error of administration and printing got in the published reports of the statutes, and if under such supposed statute courts had levied punishment upon a number of persons charged under it, and if the error in the published volume was discovered and the fact became known that no such statute had ever passed in Congress, it is unthinkable that the courts would continue to administer punishment in similar cases, on a non-existent statute because prior decisions had done so. If that be true as to a statute we need only realize the greater truth when the principle is applied to the solemn question of the contents of the Constitution. While the defects in the method of proposing and the subsequent method of computing "ratification" has been brief above, it should be noted that the failure to comply with Article V began with the first action by Congress. The very Congress which proposed the alleged Fourteenth Amendment under the first part of Article V was itself, at that very time, violating the last part as well as the first part of Article V of the Constitution. There is one, and only one, provision of the Constitution of the United States which is forever immutable, which can never be changed or expunged. The courts cannot alter it, the executives cannot question it, the Congress cannot change it, and the States themselves, though they act in perfect concert, cannot amend it in any manner whatsoever, whether they act through conventions called for the purpose or through their Legislatures. Not even the unanimous vote of every voter in the United States of America could amend this provision. It is a perpetual fixture in the Constitution, so perpetual and so fixed that if the people of the United States of America desired to change or exclude it, they would be compelled to abolish the Constitution and start afresh. The unalterable provision is this: "No State, without its consent, shall be deprived of its equal suffrage in the Senate." A State, by its own consent, may waive this right of equal suffrage, but that is the only legal method by which a failure to accord this immutable right of equal suffrage in the Senate can be justified. Certainly not by forcible ejection and denial by a majority in Congress, as was done for the adoption of the Joint Resolution for the Fourteenth Amendment. Statements by the Court in the Coleman v. Miller case that Congress was left in complete control of the mandatory process, and therefore it was a political affair for Congress to decide if an Amendment had been ratified, does not square with Article V of the Constitution which shows no intention to leave Congress in charge of deciding such matters. Even a constitutionally recognized Congress is given but one volition in Article V, and that is to vote whether to propose an Amendment on its own initiative. The remaining steps by Congress are mandatory. Congress shall propose Amendments; if the Legislatures of two thirds of the States make application, Congress shall call a convention. For the Court to give Congress any power beyond that which is found in Article V is to write new material into Article V. It would be inconceivable that the Congress of the United States could propose, compel submission to, and then give life to an invalid Amendment by resolving that its effort had succeeded regardless of compliance with the positive provisions of Article V. It should need no further citation to sustain the proposition that neither the Joint Resolution proposing the Fourteenth Amendment nor its ratification by the required three fourths of the States in the Union were in compliance with the requirements of Article V of the Constitution. When the mandatory provisions of the Constitution are violated, the Constitution itself strikes with nullity the Act that did violence to its provisions. Thus, the Constitution strikes with nullity the purported Fourteenth Amendment. The courts, bound by oath to support the Constitution, should review all of the evidence herein submitted and measure the facts proving violations of the mandatory provisions of Article V of the Constitution, and finally render judgment declaring said purported Amendment never to have been adopted as required by the Constitution. The Constitution makes it the sworn duty of the judges to uphold the Constitution which strikes with nullity the Fourteenth Amendment. As Chief Justice Marshall pointed out for a unanimous Supreme Court in Marbury v. Madison:

The framers of the Constitution contemplated the instrument as a rule for the government of courts, as well as of the legislature.... Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that Constitution forms no rule for his government?... If such be the real state of things, that is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.... Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions.... that courts, as well as other departments, are bound by that instrument.(61)

The Federal courts actually refuse to hear argument on the invalidity of the Fourteenth Amendment, even when the evidence above is presented squarely by the pleadings. Only an aroused public sentiment in favor of preserving the Constitution and our institutions and freedoms under constitutional government, and the future security of our country, will break the political barrier which now prevents judicial consideration of the unconstitutionality of the Fourteenth Amendment.

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12. Senate Journal (39th Congress, lst Session), page 563; House Journal, 1866, page 889.

22. Reference: James M. McPherson, The Struggle For Equality: Abolitionists and the Negro in the Civil War and Reconstruction (Princeton, New Jersey: Princeton University Press, 1964), page 194; American Annual Cyclopedia and Register of Important Events of the Year 1867 (New York: D. Appleton and Company, 1870), page 452.

31. Presidential Proclamation No. 153 in General Records of the United States (G.S.A. National Archives and Records Service).

50. Reference: Francis Newton Thorpe, The Federal and State Constitutions (Washington, D.C.: Government Printing Office, 1906), Volume 1, pages 288-306; Ibid., Volume XI, pages 1429-1448.

55. Statutes at Large, Volume XIV, pages 428ff; 15 Statutes at Large, pages 14ff.

The Joint Resolution proposing the Fourteenth Amendment was never presented to the President of the United States for his approval, as President Andrew Johnson stated in his message on June 22, 1866.

This objection would wipe out most constitutional amendments, including #'s 1-10. Not that it isn't a valid objection, but one shouldn't be under the impression that it's unique to this amendment.

As for the larger question does anyone here know of any instance in American legal history where a law was declared invalid, after it was reputed to have gone into effect, on the grounds that the proper procedure for passing it had not been followed? I have to wonder if there's any precedent for this.

". . . . . .certain Jews killed Christ."

It was ordained thus. They were obeying the law, and in so doing, they brought at end to the blood sacrifice which could only have occurred with the offering of The perfect sacrifice -- The 'lamb without spot or blemish.' Once they offered the perfect sacrifice, it satisfied the law once and for all. The resulting vacuum allowed for The 'higher' law to come forth and function -- our destiny and our inheritance, thanks to the Jews who would not usurp the law of God.

To allow the 'higher' law to function was like getting one's freedom after being a slave.

How many humans on both sides were sacrificed to abolish slavery during the uncivil war? All of which were un-necessary had the 'higher' law, which was already here, been allowed to function.

Back on topic, the irony is that the 14th Amendment paved the way for all of us to become slaves again -- as we trade our rights for privileges. Had the blacks been regarded as Sovereign Citizens (Upper case 'C') after the war, the 14th Amendment would not have been on the drawing board. The 14th federalized the black race with the designation of 'citizen,' (lower case 'c'). Since, the federal government has become the slavemaster of us all -- black, brown, red, white and yellow, under the 14th Amendment.

Boss Leander Perez of Plaquemines Parish was one of the reasons why a Fourteenth Amendment was a good thing. Anyone who's interested in his disgraceful career can do an Internet search. There should be some check on these bosses grip on their fiefdoms. The Fourteenth Amendment provides that.

Leaving the ratification history aside, whether the Fourteenth Amendment or something similar to does fit into the Constitutional scheme is an interesting one. Some protection for the rights of individuals against state and local governments seems to be a reasonable contribution to the Framers' program.

Of course it was a change. That's why the Fourteenth Amendment was an amendment, like the Bill of Rights were amendments to the original documents. But one can view it more as a completion or contribution to the original plan. Not to have provided such protection would have been a mistake.

Automatic citizenship for the children of people just of the plane or boat does seem to be a mistake. That can also be rectified by the amendment process.

There is no question that all of the Southern States which rejected the Fourteenth Amendment had legally constituted governments, were fully recognized by the Federal Government, and were functioning as member States of the Union at the time of their rejection.

The Thirteenth Amendment was ratified by twenty-seven States of the then thirty-six States of the Union, including the Southern States of Virginia, Louisiana, Arkansas, South Carolina, North Carolina, Alabama, and Georgia.

There can be no doubt but that the ratification by these seven Southern States of the Thirteenth Amendment again established the fact that their Legislatures and State governments were duly and lawfully constituted and functioning as such under their State constitutions.

For the federal government to declare that they were no longer states in the union (which is what the wanted all along), to accept one Amendment vote and reject another, then to institute military governments because the NORTH again refused to abide by the terms of the Constitution speaks volumes about those that accept the legality of their actions, prior to and after their illegal invasion of the South.

This is garbage, piled on garbage, piled on garbage from a constitutional standpoint. Just to deal with the central point, representatives of States in rebellion against the Union were properly excluded from the Congress for all purposes. The Constitution requires that and State seeking admission to the Union be accepted by an Act of Congress. This has happened 37 times in our history, and is nothing surprising.
It is both logical and constitutional for the same provision to apply to any State seeking re-admission to the Union, after having been excluded for its own act of rebellion. In these Acts for State Admission, Congress places conditions on the states. For instance, it rejected Wyoming's request six times, because Wyoming allowed women to vote and hold office per its Territorial Constitution and proposed State Constitution. (On the seventh try, Congress relented, and accepted that State.)
In the same way, whatever conditions Congress placed on the States which rebelled, were constitutional, and were binding on the States. You will note that the official histories of the Confederate States give two dates for admission to the Union (except for those that were among the original 13 States, and became part of the Union by their ratification of the Constitution in the 18th century). The second date is the one on which, by Act of Congress, they again became part of the United States of America.
This comment answers the heart of this argument. There are so many errors of detail in this piece that it's hard to know where to start. I'll pick just one as a blatant example.
The article asserts that proposed Amendmkents must be signed by the President. The Constitution requires no such thing, A few early Presidents did sign such documents. But there is now a Supreme Court decision squarely holding that Presidents have no constitutional role in the amendment process. (Neither do the State Governors. This process is purely legislative.)
In short, the writer of this piece has demonstrated to me that he is dumb as a hoe handle on the Constitution as written and the history of its application and use, I urge anyone who reading this thread to stop at this point and go do something more worthwhile with his/her time, such as sorting one's socks or cleaning out the cat's litter box.
That may not be the "opinion" you were looking for, my friend, but you asked for my opinion as a scholar and practitioner of constitutional law. This is it. As the saying goes, if you don't like my peaches, don't shake my tree.

Congressman Billybob

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But there is now a Supreme Court decision squarely holding that Presidents have no constitutional role in the amendment process.

Supreme court decision or no, Article 1, Section 7 seems pretty clear on the point. It's not surprising that the courts would rule after the fact that the president doesn't have to sign such proposals. If they had ruled the other way, that would have invalidated the first ten amendments. I know people seem to have this image of judges as being completely detached and sublime in their thoughts, so it might come as a shock to discover that they really are human with human frailties, and as such I'm sure they wouldn't have felt too comfortable at the thought of ruling that the BOR doesn't actually exist. So they would have done anything, twisted themselves in any direction, to avoid having to rule that way. But that doesn't make it right.

The South lost.
We are all created equal.
The amendment passed. Get over it.

That the South lost does not change the irregularities in the 14th Amendment, which would never have been proposed had Lincoln lived to rein in the fanaticism of the Reconstructionists.

The late David Lawrence, who was the publisher of U.S. News for many years, considered the "14th Amendment" to be the greatest Constitutional wrong in American History. Your breezy response to this thread, neither answers the Perez argument, nor Lawrence's argrument, which was shared by many legal scholars in the era since. Some of this is referred to in an article on Conservative Pot-Pourri.

The statement that we are all created equal, that you offer, is of course a quotation from Jefferson, used in the Declaration of Independence to deny the divine right of Kings. It is hardly an endorsement for the corruption of legal procedures.

It is very important that only the highest standards be applied to matters that effect the integrity of our written Constitution. Otherwise, it is easily reduced to the nullity that the Left has been seeking for a long time. A full and frank debate on the 14th Amendment--the basic cover for all of the excesses of the activist Supreme Court in the 20th Century, including many regularly denounced at this venue--is long overdue. [It is the l4th Amendment that made possible the legalization of Abortion and the illegalization of school prayer. It is the 14th Amendment that enabled the Federal Courts to take over Legislative aportionment and order school bussing. It is the 14th Amendment that has shifted the balance against Law enforcement; that compounds the problem with illegal immigration, by giving the children, born here to illegal immigrants, automatic citizenship, etc., etc.. Its effect has been an ongoing disaster.]

William Flax Return Of The Gods Web Site

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