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Wednesday, July 09, 2014

There Is No Fourteenth Amendment

To repress this tyranny and at the same time to do some justice to conquered rebels requires caution.

 - Thaddeus Stevens, before calling the question on Amendment XIV (June 13, 1866)

According to the GPO, South Carolina finally ratified the 14th Amendment on this date in 1868 (after rejecting it in 1866), which President Johnson proclaimed officially several days later.  So happy Freedom For All Day!

One of the most amazing things to come out of Reconstruction is that there are people even now who assert that the 14th itself is unconstitutional.  A fun sampling from over the years:

I'm sure there are others, but these are representative of the crackpot way of "thinking" and "arguing" about such things.  Anyway, I can't get over the irony of some people complaining about an allegedly unconstitutional process, just after an entire segment of the nation tried unconstitutionally to leave.

I think Thaddeus Stevens said it best on August 2, 1861, regarding a confiscation bill:

Who pleads the Constitution against our proposed action? Who says the Constitution must come in, in bar of our action? It is the advocates of rebels who have sought to overthrow the Constitution, who repudiate the Constitution and trample it in the dust.

Sir, these rebels, who have disregarded and set at defiance that instrument, are by every rule of municipal and international law, estopped from pleading it against our action. Who, then, is it that comes to us and says, 'You can not do this thing because your Constitution does not permit it'?

The Constitution! Our Constitution which you repudiate and trample under foot, forbids it! Sir, it is an absurdity.

While I'm generally not so extreme as Stevens in most things, I would go a little further than he does here and note that the Constitution explicitly gives Congress the power to suppress rebellions, and to seize property after due process (which the bill in question established).  If confiscating material that aids the seceding states helps achieve that end, then the Union has every right and power to do so.  Regardless, I'm not sure any state in rebellion against the Constitution can then cry about the victors deciding how to let them back under Constitutional protections.

But cry they did, and there was some controversy surrounding ratification and certain states attempting to reject the amendment.  So on July 21, Congress weighed in and promulgated it (the first of only two times it's done so):

Whereas the legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, West Virginia, Kansas, Missouri, Indiana, Ohio, Illinois, Minnesota, New York, Wisconsin, Pennsylvania, Rhode Island, Michigan, Nevada, New Hampshire, Massachusetts, Nebraska, Maine, Iowa, Arkansas, Florida, North Carolina, and Louisiana, being three-fourths dud more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States, duly proposed by two-thirds of each House of the thirty-ninth Congress: Therefore,

Resolved by the Senate, (the House of Representatives concurring,) That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.

This, naturally, forms part of the basis for some "the 14th is unconstitutional" conspiracy fantasies.  Suprisingly, they are wrong and the issue was settled by SCOTUS in 1938:

[T]he political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification.  While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification, and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures.

This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.

And there you have it.  I will say it's nice that Sarah Palin has accepted the 14th Amendment, if only to call for Obama's impeachment.  Gives one hope.

ntodd

* Links to my post on the subject.

July 9, 2014 in Constitution, Schmonstitution | Permalink

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