There is No "Fourteenth Amendment"!
by
David Lawrence
U.S. News & World Report
September 27, 1957
A MISTAKEN BELIEF -- that there is a valid article in the
Constitution known as the "Fourteenth Amendment" -- is
responsible for the Supreme Court decision of 1954 and the
ensuing controversy over desegregation in the public schools of
America. No such amendment was ever legally ratified by three
fourths of the States of the Union as required by the
Constitution itself. The so-called "Fourteenth Amendment" was
dubiously proclaimed by the Secretary of State on July 20, 1868.
The President shared that doubt. There were 37 States in the
Union at the time, so ratification by at least 28 was necessary
to make the amendment an integral part of the Constitution.
Actually, only 21 States legally ratified it. So it failed of
ratification.
The undisputed record, attested by official journals and the
unanimous writings of historians, establishes these events as
occurring in 1867 and 1868:
1. Outside the South, six States -- New Jersey, Ohio,
Kentucky, California, Delaware and Maryland -- failed
to ratify the proposed amendment.
2. In the South, ten States -- Texas, Arkansas, Virginia,
North Carolina, South Carolina, Georgia, Alabama,
Florida, Mississippi and Louisiana -- by formal action
of their legislatures, rejected it under the normal
processes of civil law.
3. A total of 16 legislatures out of 37 failed legally to
ratify the "Fourteenth Amendment."
4. Congress -- which had deprived the Southern States of
their seats in the Senate -- did not lawfully pass the
resolution of submission in the first instance.
5. The Southern States which had rejected the amendment
were coerced by a federal statute passed in 1867 that
took away the right to vote or hold office from all
citizens who had served in the Confederate Army.
Military governors were appointed and instructed to
prepare the roll of voters. All this happened in spite
of the presidential proclamation of amnesty previously
issued by the President. New legislatures were
thereupon chosen and forced to "ratify" under penalty
of continued exile from the Union. In Louisiana, a
General sent down from the North presided over the
State legislature.
6. Abraham Lincoln had declared many times that the Union
was "inseparable" and "indivisible." After his death,
and when the war was over, the ratification by the
Southern States of the Thirteenth Amendment, abolishing
slavery, had been accepted as legal. But Congress in
the 1867 law imposed the specific conditions under
which the Southern States would be "entitled to
representation in Congress."
7. Congress, in passing the 1867 law that declared the
Southern States could not have their seats in either
the Senate or House in the next session unless they
ratified the "Fourteenth Amendment," took an
unprecedented step. No such right -- to compel a State
by an act of Congress to ratify a constitutional
amendment -- is to be found anywhere in the
Constitution. Nor has this procedure ever been
sanctioned by the Supreme Court of the United States.
8. President Andrew Johnson publicly denounced this law as
unconstitutional. But it was passed over his veto.
9. Secretary of State Seward was on the spot in July 1868
when the various "ratifications" of a spurious nature
were placed before him. The legislatures of Ohio and
New Jersey had notified him that they rescinded their
earlier action of ratification. He said in his
official proclamation that he was not authorized as
Secretary of State "to determine and decide doubtful
questions as to the authenticity of the organization of
State legislatures or as to the power of any State
legislature to recall a previous act or resolution of
ratification." He added that the amendment was valid
"if the resolutions of the legislatures of Ohio and New
Jersey, ratifying the aforesaid amendment, are to be
deemed as remaining of full force and effect,
notwithstanding the subsequent resolutions of the
legislatures of these States." This was a very big
"if." It will be noted that the real issue, therefore,
is not only whether the forced "ratification" by the
ten Southern States was lawful, but whether the
withdrawal by the legislatures of Ohio and New Jersey -
- two Northern States -- was legal. The right of a
State, by action of its legislature, to change its mind
at any time before the final proclamation of
ratification is issued by the Secretary of State has
been confirmed in connection with other constitutional
amendments.
10. The Oregon Legislature in October 1868 -- three months
after the Secretary's proclamation was issued --
passed a rescinding resolution, which argued that the
"Fourteenth Amendment" had not been ratified by three
fourths of the States and that the "ratifications" in
the Southern States were "usurpations,
unconstitutional, revolutionary and void" and that,
"until such ratification is completed, any State has a
right to withdraw its assent to any proposed
amendment."
What do the historians say about all this? The Encyclopedia
Americana states:
"Reconstruction added humiliation to suffering.... Eight
years of crime, fraud, and corruption followed and it was
State legislatures composed of Negroes, carpetbaggers and
scalawags who obeyed the orders of the generals and ratified
the amendment."
W. E. Woodward, in his famous work, "A New American
History?" published in 1936, says:
"To get a clear idea of the succession of events let us
review [President Andrew] Johnson's actions in respect to
the ex-Confederate States.
"In May, 1865, he issued a Proclamation of Amnesty to former
rebels. Then he established provisional governments in all
the Southern States. They were instructed to call
Constitutional Conventions. They did. New State
governments were elected. White men only had the suffrage
the Fifteenth Amendment establishing equal voting rights had
not yet been passed]. Senators and Representatives were
chosen, but when they appeared at the opening of Congress
they were refused admission. The State governments,
however, continued to function during 1866.
"Now we are in 1867. In the early days of that year
[Thaddeus] Stevens brought in, as chairman of the House
Reconstruction Committee, a bill that proposed to sweep all
the Southern State governments into the wastebasket. The
South was to be put under military rule.
"The bill passed. It was vetoed by Johnson and passed again
over his veto. In the Senate it was amended in such fashion
that any State could escape from military rule and be
restored to its full rights by ratifying the Fourteenth
Amendment and admitting black as well as white men to the
polls."
In challenging its constitutionality, President Andrew
Johnson said in his veto message:
"I submit to Congress whether this measure is not in its
whole character, scope and object without precedent and
without authority, in palpable conflict with the plainest
provisions of the Constitution, and utterly destructive of
those great principles of liberty and humanity for which our
ancestors on both sides of the Atlantic have shed so much
blood and expended so much treasure."
Many historians have applauded Johnson's words. Samuel
Eliot Morison and Henry Steele Commager, known today as
"liberals," wrote in their book, "The Growth of the American
Republic":
"Johnson returned the bill with a scorching message arguing
the unconstitutionality of the whole thing, and most
impartial students have agreed with his reasoning."
James Truslow Adams, another noted historian, writes in his
"History of the United States":
"The Supreme Court had decided three months earlier, in the
Milligan case, ... that military courts were
unconstitutional except under such war conditions as might
make the operation of civil courts impossible, but the
President pointed out in vain that practically the whole of
the new legislation was unconstitutional. ... There was
even talk in Congress of impeaching the Supreme Court for
its decisions! The legislature had run amok and was
threatening both the Executive and the Judiciary."
Actually, President Johnson was impeached, but the move
failed by one vote in the Senate.
The Supreme Court, in case after case, refused to pass on
the illegal activities involved in "ratification." It said
simply that they were acts of the "political departments of the
Government." This, of course, was a convenient device of
avoidance. The Court has adhered to that position ever since
Reconstruction Days.
Andrew C. McLaughlin, whose "Constitutional History of the
United States" is a standard work, writes:
"Can a State which is not a State and not recognized as such
by Congress, perform the supreme duty of ratifying an
amendment to the fundamental law? Or does a State -- by
congressional thinking -- cease to be a State for some
purposes but not for others?"
This is the tragic history of the so-called "Fourteenth
Amendment" -- a record that is a disgrace to free government and
a "government of law."
Isn't the use of military force to override local government
what we deplored in Hungary?
It is never too late to correct injustice. The people of
America should have an opportunity to pass on an amendment to the
Constitution that sets forth the right of the Federal Government
to control education and regulate attendance at public schools
either with federal power alone or concurrently with the States.
That's the honest way, the just way to deal with the problem
of segregation or integration in the schools. Until such an
amendment is adopted, the "Fourteenth Amendment" should be
considered as null and void.
There is only one supreme tribunal -- it is the people
themselves. Their sovereign will is expressed through the
procedures set forth in the Constitution itself.
[ END ]
[OCR'd text from U.S. News & World Report, September 27, 1957,
page 140 et seq.]
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