ILLEGAL IMMIGRATION - Birthright Citizenship | Eastern North Carolina Now

    In Georgia v. Stanton (1867), the Supreme Court dismissed an action by the State of Georgia to restrain the Secretary of War and other executive officials from enforcing the Reconstruction The Court noted that the Acts' execution would "annul, and totally abolish the existing State government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the State." However, the Court held that this was a political question and was not justiciable. Again the Supreme Court had dodged the issue of the constitutionality of the Reconstruction Acts. The Court did hint, however, that if an action was brought relating to the rights of "persons or property," it would hear the matter.

    The Supreme Court's language in Stanton left the door open for one more challenge to the Constitutionality of the Reconstruction Acts in Ex parte McCardle. McCardle, the editor of the Vicksburg Times, was arrested by military authorities in Mississippi for publishing an editorial denouncing the constitutionality of the Reconstruction Acts. He was charged with impeding reconstruction; inciting insurrection, disorder, and violence; libel; and disturbance of the peace, and was to be tried before a military court. McCardle filed for a writ of habeas corpus on the ground that the Reconstruction Act was unconstitutional. The district court refused to grant this petition for a writ of habeas corpus and McCardle appealed to the Supreme Court. The Supreme Court agreed to hear the case and denied the government's motion to dismiss for lack of jurisdiction.

    After the Court denied the government's motion to dismiss, word soon reached congressional leaders that the Supreme Court would be forced to declare the Reconstruction Acts unconstitutional. The Congressional response was quick. Republicans passed a bill that repealed the Habeas Corpus Act of 1867, the act under which McCardle had appealed, thereby removing the Supreme Court's jurisdiction in the case. Congress noted that the purpose of this bill was to prevent the Supreme Court from passing on the validity of the Reconstruction Acts. The case had already been argued about two weeks before Congress passed its bill striping the Supreme Court of its jurisdiction, giving the Court time to issue a decision. The Court, however, backed down from congressional authority, fearing that if they ruled on the Reconstruction Acts, the Republicans in Congress might retaliate by inflicting even more damage upon the Court's institutional independence.

    Despite a strong dissent by Justice Grier, the Court decided to wait for the bill stripping its jurisdiction to become law. The Court dismissed McCardle's case for want of jurisdiction and refused to find the jurisdiction stripping legislation unconstitutional. The Court had again, though just barely and for the last time, dodged the question of the Reconstruction Act's constitutionality.


    While the constitutionality of the Reconstruction Acts was being challenged in the Supreme Court, military officials, and twenty thousand federal troops, had begun registering voters in the South in order for new Southern governments to be organized. After the registration of voters was completed in September 1867, black voters made up a majority of voters in five of the ten unreconstructed states. Thirty-five percent to forty-five percent of potential white voters were either excluded from voting because of the Reconstruction Acts, or failed to register. Southerners still made some attempts to resist the forced creation of new governments. In Alabama, for example, most voters stayed away from the polls to prevent the new constitution from being approved by the required majority of registered voters. This tactic was tried in other Southern states as well, but Congress responded by repealing the "majority-of-the-voters" requirement, and allowed for a majority of the votes cast to enable the new constitutions. Thus, all the unreconstructed states "approved" new constitutions, and the new governments began ratifying the 14th Amendment.

    Arkansas was the first of the unreconstructed Southern states to act. For the state's new constitution to be legal, it required congressional approval, but it's new legislature informally convened and approved the 14th Amendment on April 6, 1868. The Congress voted to admit Arkansas to representation in Congress on June 22, 1868. It should be pointed out, then, that Arkansas ratified the 14th Amendment, even though it still had "no legal state governments" until June.

    Florida was the next of the unreconstructed states to act. Florida, in May of 1868, had approved its new constitution that had been drafted by a convention presided over by United States Army Colonel John Sprague in full military uniform. Florida ratified the 14th Amendment on June 9, 1868. While Congress debated the readmission of Florida, it was pointed out that the text of the Amendment ratified by the state contained numerous errors and variations. Some senators, therefore, argued that Florida had not properly adopted the Amendment. Yet, after the ratifications of New York, Pennsylvania, Wisconsin, and Michigan were examined and found to have similar errors, some of them substantive, Congress decided that ratification in any form would suffice. Florida was therefore readmitted as a legal government. However, like Arkansas, Florida had ratified the 14th Amendment before Congress declared it a legal government.

    After Florida ratified the Amendment, Congress changed the rules slightly. It declared that all the Southern states had, by adopting new constitutions, formed republican governments, and would be entitled to representation once they ratified the 14th Amendment. Congress, then, would no longer have to consider representation of an unreconstructed state once it ratified the Amendment. A state would automatically have its representation restored once it ratified the 14th Amendment. On these terms, North Carolina ratified the Amendment on July 2, 1868, Louisiana and South Carolina on July 9, 1868, and Alabama on July 16, 1868. But again, regardless of the coercive factor that ratification was still a condition precedent to admission in Congress, the governments that ratified the Amendment still cannot be considered legal state governments if they were not entitled to representation in Congress until after they ratified it.


    These Southern ratifications seemed to give Secretary of State William Seward the required twenty-eight states necessary for the 14th Amendment to become law. Secretary Seward had twenty-nine ratifications on file, but prior to receiving the twenty-eighth, New Jersey and Ohio had rescinded their ratification. Nevertheless, on July 20, 1868, Secretary Seward issued a proclamation declaring the 14th Amendment ratified. However, as one commentator has pointed out, "it is hard to ignore the tell-tale signs of irregularity that peer out from the fifteenth volume of the Statutes at Large." Seward's proclamation shows he obviously had doubts as to the validity of all of the listed twenty-nine ratifications. Clearly, on Seward's mind was the constitutionality of using military force to set up new Southern governments as a means securing ratification. Seward's proclamation explained that the Amendment had "also been ratified by newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama." As to the rescissions by Ohio and New Jersey, Seward noted that it was "a matter of doubt and uncertainty whether such resolutions" were valid. Seward further concluded his proclamation conditionally, stating, "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 . . . then the aforesaid amendment has been ratified."

    Congress reacted quickly to Seward's proclamation, and on July 21, 1868, declared all twenty-nine ratifications to be valid and that the 14th Amendment was "part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State." On July 28, Seward, issued a second proclamation in conformance with the congressional resolution, and declared the 14th Amendment had "become valid to all intents and purposes as a part of the Constitution of the United States."

    The 14th Amendment has been considered a part of the Constitution ever since. Yet, 130 years after Secretary of State Seward's proclamation, no one has answered the question of how the original reconstruction Southern governments were to be counted when they said "yes" to the 13th Amendment, but when they said "no" to the 14th Amendment, Congress had a right to destroy these governments, and then keep the new governments in the cold until they said "yes"?

    Should we just go ahead and assume the validity of the 14th Amendment?

    It is possible that a person, after reading the story of the ratification of the 14th Amendment, might say something like: "This is very interesting, but the 14th Amendment has been accepted as a part of the Constitution for over 130 years and we must assume its validity." While this seems like a reasonable enough statement, there are certain unfavorable consequences forced upon one who assumes it is valid. These consequences are set out in the following scenarios from which one is required to choose from if he assumes the constitutionality of the 14th Amendment.

    Scenario A: The "Thirteenth-Fourteenth Amendment Paradox." One possibility may be to assume that the Southern governments were so "unrepublican" that they could constitutionally be excluded from Congress and deprived of their right to participate in the proposal of the Amendment. It must further be assumed that the Reconstruction Acts were constitutional and that Congress had the power to set up, through military occupation, republican governments in the South and compel ratification by these new governments and that these ratifications were valid even before Congress had declared these new governments "legal." These assumptions save the 14th Amendment, but in a way that necessarily invalidates the 13th Amendment. For if the Southern governments were unconstitutionally unrepublican, there is no way to justify counting their ratifications towards the 13th Amendment. One is thereby left with the unfortunate choice between the validity of the 14th Amendment or the abolition of slavery.

    Scenario B: Constitutional Secession. Another possibility would be to assume that a state may somehow constitutionally leave, or be removed from, the Union through some method such as an ordinance of secession or by state suicide. With this assumption, one could conclude that the Southern states were not entitled to representation in Congress and were not to be counted in determining whether three-fourths of the states had ratified an amendment. Therefore, if one also assumes that the resolutions by New Jersey, Ohio, and Oregon rescinding their ratifications were invalid, then the 14th Amendment can be saved. One who chooses to follow this scenario must not only repudiate the principle of an indissoluble Union, but also several Supreme Court decisions holding that the South had never left the Union as well as actions by the legislative and executive branches that asserted the South had never left the Union. Even if one decides that recognizing some form of secession or method for dissolution of the Union is not so bad when compared to invalidation of the 14th Amendment, this scenario is still problematic simply because it was not the method followed by Congress.


    Scenario C: Ratification Outside Article V. A final method which might potentially save the 14th Amendment would be to assume that the Constitution can legally be ratified outside of the method set out in Article V. For example, one might argue that the North had a right to force the Southern governments to accept the 14th Amendment because it had the South within "the grasp of war." This "grasp of war" theory would save both the 13th and 14th Amendments without recognizing any form of secession by assuming that these amendments were not made part of our Constitution through Article V ratification, but by Gettysburg and Appomattox. While this would save the 14th Amendment, "grasp of war" is an extremely undesirable justification for the Amendment, because while all amendments other than the Reconstruction amendments were products of the constitutional will of the American people, the 14th Amendment would then find its justification solely by the guns of the Union Army. Equally troubling is that, if the "grasp of war" theory is assumed to be a constitutional method for ratification, what other extra-Article V amendment methods might be found to exist?

    The most disturbing problem arising out of the 14th Amendment ratification story is the precedent for constitutional amendment it may have set. For one to assume the constitutionality of the Amendment, they must accept its method of proposal and ratification as constitutional. Therefore, one who accepts the constitutionality of the 14th Amendment must also accept the premise that, at least in certain circumstances, Congress may deny states their representation in Congress in order to compel ratification of a desired amendment. This cannot be right, but the dilemma is heightened by the recognition that the 14th Amendment is a cornerstone of federal jurisprudence. There is simply no acceptable outcome if we are forced to choose between accepting a doctrine of congressional coercion or the 14th Amendment. The only answer, besides ignoring the question, is to re- propose the 14th Amendment.

    It seems quite clear that the 14th Amendment was not ratified, if proposed, even loosely within the text of Article V of the Constitution. Article V does not give Congress the power to deny a state representation in Congress without its consent. In fact, it prohibits such conduct. Nor does Article V give Congress the power to abolish a state government when it refuses to ratify a proposed amendment. And certainly, Article V does not allow Congress to deny a state its representation until it ratifies a desired amendment. Furthermore, Article V is the only way the Constitution can be amended. The Supreme Court in Hawke v. Smith (1920) has stated:

    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, or conventions in a like number of States. 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.

    So, if the Constitution can only be amended through Article V, and the 14th Amendment was not ratified properly under that Article, what is its status? It seems as though this question can only be answered in one way. However, having the 14th Amendment suddenly declared invalid would be disastrous. There would be a long list of cases, including many landmark cases such as Brown v. Board of Education, Roe v. Wade, all the religion and prayer cases, and McDonald v. Chicago, which would be invalidated. The question is one for the Supreme Court. Yet, in Coleman v. Miller (1939), the Court discussed the ratification of the 14th Amendment for the first, and likely the last time. The Court did not discuss whether the ratification had conformed to Article V. It said only that: