The 14th Amendment has been used extensively to decide on the constitutionality of many issues, among others segregation in schools, “civil rights,” immigration, and abortion. Debates over the meaning of the Amendment have produced an enormous literature. But there is a more fundamental issue that is generally ignored. Was the 14th Amendment legally ratified? If it wasn’t, the framework for much of subsequent constitutional law collapses. In a notable article that first appeared in the Georgia Journal of Southern Legal History in 1991, the historian Forrest McDonald argued that it was not legally ratified, and I’ll discuss his arguments in this week’s column.
McDonald was one of the most distinguished American historians, who first attracted attention with his book We the People, published in 1958, and he remained at the forefront of the historical profession until his death in 2016. (I gave a book report on We the People when I was in high school in 1963.)
He summarizes the main issues at stake in the debate over the legality of the Amendment in this way:
Whatever else the Radicals had in mind in pushing through the Reconstruction Amendments—their motives were diverse and conflicting—it is clear that some of them, at least, intended that the Fourteenth should greatly increase the powers of Congress at the expense of the states. It is also clear that the process of adopting the Fourteenth Amendment was marred by repeated irregularities. President Andrew Johnson questioned the legitimacy of an amendment proposed by a Congress that represented only twenty-five of the thirty-six states. Three northern states that ratified the proposal later rescinded their votes. All the southern states except Tennessee at first voted against the amendment, despite an implied threat that they would not be readmitted to the Union; they changed their stands only after the threat was made explicit. And throughout the debates on the amendment, friends and foes alike disagreed as to whether approval of three-quarters of twenty-five states or of thirty-six would be necessary.
This does not exhaust the legal problems of the Amendment. A constitutional amendment requires approval by two-thirds of both the House and Senate, but the Fourteenth Amendment fell short of the required vote in the Senate. (McDonald notes that it isn’t a good argument that because the Southern states that had seceded weren’t represented in Congress, and would undoubtedly have opposed the Amendment if they had been, the required majorities weren’t obtained. The argument fails because the Constitution requires only approval by two-thirds of the members present.) McDonald presents the problem with the Senate’s approval in this way:
But another aspect of the matter clouds the issue. The numbers cited concerning the vote in the Senate mask some chicanery. One of the fifty non-southern senators was the newly elected John P. Stockton of New Jersey, an outspoken opponent of the Fourteenth Amendment, who took the oath of office and was formally seated when the Thirty-ninth Congress convened on December 5, 1865. Later, after informal polls revealed that only thirty-three senators favored it (one short of the necessary two-thirds) a motion was made not to seat Stockton. The motion not to seat was resorted to, even though he had already been seated, because Article I, Section 5, of the Constitution requires a two-thirds vote to expel a member, and that majority could not be mustered. Following a great deal of debate, a vote was taken and the motion not to seat failed twenty-two to twenty-one. Overnight, however, one member of the Senate was persuaded to change his vote. The next day the same motion passed. Stockton was thus unconstitutionally expelled, and only in that way did the thirty-three votes for the Fourteenth Amendment become a two thirds majority.
The main problems with the Amendment, though, occurred in the process of ratification. The Southern states voted against it, so the Radical Republicans responded by putting the states that had done so under military occupation and they refused to readmit them into the Union until their legislatures ratified it:
The congressional majority used the Reconstruction Act of March 2, 1867, passed over President Johnson’s veto just before the expiration of the Thirty-ninth Congress and slightly amended by the Fortieth Congress later the same month, to force the southern states to approve the amendment. The act, as amended, began with a declaration that “no legal state governments” existed in the ten “rebel” states that had refused to ratify. It divided the South into five military districts and replaced the existing governmental structures with martial law. The act required the “rebel” states to call elections, in which black males could vote, but whites who had participated in the rebellion or given aid and comfort to rebels could not. Thus the states would elect delegates to conventions that were to establish constitutions that included provisions for black suffrage. When the constitutions were ratified by a majority of the eligible voters and approved by Congress, when governments were organized under them, and when those governments ratified the Fourteenth Amendment, then—and only then—would Congress consider ending military rule, recognizing the state governments as legally existent and readmitting the states to representation in Congress.
There is yet another problem, and this one is the most severe. A state can ratify an amendment only if it is part of the Union, but Congress would not admit a state until ratification had taken place. The Radicals dealt with this problem in their customary highhanded and illegal way:
We now come to the pivotal point upon which the constitutionality of the adoption of the Fourteenth Amendment turns. Let us assume that the amendment had been constitutionally proposed; assume that the ratifications in Tennessee, Oregon, and West Virginia were proper and should have been counted; and assume that the rescissions by New Jersey and Ohio were illegal and that their ratifications should be counted. Even so, as of April 1, 1868, the approval of six more states was necessary to validate the amendment. Let us further assume that the Reconstruction Act of March 2, 1867, was constitutional, and that ratification by the governments of the reconstituted southern states would count toward the necessary total. Even if we make all these assumptions, it remains a fact that the southern state governments could have a voice in ratifying the amendment only if they were duly recognized as governments at the time they acted on the amendment. Congress had taken it upon itself—properly or improperly, it does not matter for present purposes—to be the arbiter of whether the governments were legitimate. At that point Congress changed the rules somewhat. Heretofore, ratification of the Fourteenth Amendment had been a necessary qualification for readmission to statehood, but not a sufficient one, which is to say that after the non-government of a state ratified, Congress would consider readmission. An act passed June 25, 1868, altered the procedure. The preamble of the act declared that several southern states had “framed constitutions of State government which are republican”; article one enacted that each of them “shall be entitled and admitted to representation in Congress as a State of the Union” automatically when they ratified the amendment. Obviously, however, they were not states at the time they ratified, for if they were, they would already have been “entitled” to representation.
Some people may say that regardless of these problems, it is too late to do anything about it. The Fourteenth Amendment is part of the Constitution and that is that. But this is an un-Rothbardian attitude. Rothbard always favored getting to the root of the matter and that should be our view of the illegally-ratified Fourteenth Amendment.
