The key portion of the Fourteenth Amendment is its first section, which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It would be hard to overstate its effect on our nation. The Fourteenth Amendment has formed the basis of “birthright citizenship”, along with the Supreme Court rulings of: Brown v. Board of Education (desegregation and the chain[i] of forced integration and busing); Plyler v. Doe (free public education for illegal aliens); United States v. Virginia (forced integration of women into all-male schools); Reed v. Reed and Craig v. Boren (eradication of sex differences); Regents of the University of California v. Bakke and Grutter v. Bollinger (affirmative action); Loving v. Virginia (miscegenation); Baker v. Carr, Wesberry v. Sanders, and Reynolds v. Sims (“one man-one vote” reapportionment); Shelley v. Kraemer (exclusionary covenants, later included within the Civil Rights Act of 1968); and Bush v. Gore. The Amendment was also used to undergird the Voting Rights Act of 1965, and has been further twisted to create the doctrine of incorporation, whereby the already-prostrate Tenth Amendment was further vitiated by applying much of the Bill of Rights against the States, circumventing Barron v. Baltimore. One of the most pernicious uses to which the Fourteenth Amendment has been put is the creation, spun out of whole cloth, of the “right to privacy” and its parallel implication of “sexual liberty” as “fundamental.”
In 1973, the United States Supreme Court unilaterally enshrined infanticide in our Constitution by reading into it a fundamental “right to privacy.” This “right to privacy” was first conceived in Griswold v. Connecticut, which legalized the use of contraceptives by married couples; in his opinion, Justice William Douglas suggested that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” He continued that “various guarantees create zones of privacy”, such as the guarantees contained in the First, Third, Fourth, Fifth, and Ninth Amendments. Concurring opinions argued that the Due Process Clause of the Fourteenth Amendment protected this “right to privacy” as fundamental; ironically, the Court saw its decision as a protection of “the traditional relation of the family…as old and fundamental as our entire civilization.” In any case, the Court used the specious Incorporation Doctrine spun out of the Fourteenth Amendment to apply this “right” against the States. The “right to marital privacy”, or “sexual liberty”, created of whole cloth in Griswold was extended to unmarried individuals in Eisenstadt v. Baird using the Equal Protection Clause of the Fourteenth Amendment; in his opinion, Justice William Brennan wrote, “If the right of privacy means anything, it is the right of the individual…to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” From this state-sanctioned contraception, which was later extended to minors in Carey v. Population Services International, it was but a short step to infanticide.
Justice Blackmun wrote, “The Constitution does not explicitly mention any right of privacy…however, the Court has recognized that a right of personal privacy…does exist under the Constitution.” This radically activist decision, reifying infanticide as a “fundamental” right “implicit in the concept of ordered liberty”, became even more stomach-churning when Blackmun asserted, “This right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent…Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child…all these are factors [that] the woman and her responsible physician necessarily will consider.” Though infanticide was ruled to be potentially regulable in the third trimester of pregnancy, an exception was created for “the mother’s health”; in Doe v. Bolton, the sage physician was given extreme deference in determining what exactly that criteria was, and in Planned Parenthood v. Casey, the trimester formulation of Roe was replaced with an “undue burden” analysis, granting further deference to the egalitarian deity of Choice. This “right to privacy”, based on the “sexual liberty” read into the Due Process Clause of the Fourteenth Amendment, was used to legalize sodomy in Lawrence v. Texas and as part of the foundation for the imposition of homosexual marriage as another “fundamental right” in Obergefell v. Hodges, which overturned the marriage laws of more than half of the States, as well as the federal Defense of Marriage Act.
Roe was an extraordinarily sloppy decision, resting on the Griswold “right to privacy” that, Caldwell notes, “was only ever invoked for the ulterior purpose of defending abortion. In the countless important privacy cases that have come before the Court in the half-century since…the Griswold/Roe ‘privacy right’ never came up.” Indeed, if the Court could create nonexistent “fundamental rights” such as the “right to privacy”, what could be more fundamental than the right to life, inherent throughout the “penumbras” of the Bill of Rights? United States v. Windsor was the precursor to Obergefell, telegraphing the creation of the “right” of sodomite marriage. Caldwell emphasizes that, modeled after the “Sunday best” tactics of the NAACP during the Civil Rights “movement”, “the lawsuits out of which gay marriage law was built were…carefully designed — one could say scripted — by tax-exempt foundations, public interest law firms, and Manhattan and Washington corporate lawyers working pro bono…plaintiffs were recruited for high standards of bourgeois comportment…They had to avoid public displays of affection and talking about sex.” As Rosa Luxemburg had remarked about Bolshevism, “the real dialectic of revolution stands the parliamentary cliché on its head: The road leads not through majorities to revolutionary tactics, but through revolutionary tactics to majorities.” The revolutions of the past century, we have thus seen, were instituted imperially, having not once been organic.
To preface our discssion of the (un)constitutionality of the Fourteenth Amendment, we are well-served by reading the Obergefell dissents of Chief Justice Roberts and Justice Scalia. Roberts wrote, in a rare display of excellence, that “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution…The majority…[relies] on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’ As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia…Just who do we think we are? It can be tempting for judges to confuse our own preferences with the requirements of the law…The majority today…seizes for itself a question the Constitution leaves to the people…it answers that question based not on neutral principles of constitutional law, but on its own ‘understanding of what freedom is and must become.’…this dissent is about…whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes…The Constitution leaves no doubt about the answer…The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges [contravene] democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it…Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making ‘new dimensions of freedom…apparent to new generations’…If you are among the many Americans…who favor [this decision], by all means celebrate…Celebrate the achievement of a desired goal…But do not celebrate the Constitution. It had nothing to do with it.”
Scalia wrote that the Court’s decree “says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves… When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases… We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification… But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect. That is so because ‘[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . .’ One would think that sentence would continue: ‘. . . and therefore they provided for a means by which the People could amend the Constitution,’ or perhaps ‘. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.’ But no. What logically follows, in the majority’s judge-empowering estimation, is: ‘and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.’… his is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’”
Scalia continued that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy… the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course, the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation… what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since… They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”
Quite unambiguously, the Court sees itself in the role of a wise parent, forcing the American people from their training wheels into the deep end of the proverbial pool, making the decisions that it knows we benighted yokels will not. It is in this manner that we are assimilated into a new, constantly revolutionized society. Brown, as we shall see, is a perfect example, indoctrinating our children in the sacred strictures of the Egalitarian Regime from cradle to grave, such that each new depredation is normalized and reified as simply “the way things are.” Cocktail “conservative” judges and Justices uphold each new affront, each step further into the forbidding bog after each new will-o’-the-wisp, as “precedent.” When we seek the source of the power claimed by the Regime, we often find that there is no source. Where there does exist a “source”, it is a source that has tortured so terribly that it is unrecognizable, that it can hardly be considered a part of the tattered Constitution.
1. The Fourteenth Amendment is Unconstitutional
The late Forrest McDonald traced the labyrinthine tale of the proposal and ostensible ratification of the Fourteenth Amendment, no easy task given the amount of skullduggery that had been involved in its passage, and concluded that “clearly…the Fourteenth Amendment was never constitutionally ratified, even if it had been constitutionally proposed.” President Andrew Johnson had agreed, and “questioned the legitimacy of an amendment proposed by a Congress that represented only 25 of the 36 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 25 States or of 36 would be necessary. Ultimately, the issue would turn on the question whether the southern states had legally seceded. Both Presidents Lincoln and Johnson and the Supreme Court held to the contrary. Radicals in Congress disagreed, but the Congress as a whole followed an inconsistent course.” The Fourteenth Amendment, as we shall see, was neither constitutionally proposed nor ratified.
The first irregularity in the process of foisting the Fourteenth Amendment upon the American people, as aforementioned, was its passage by an incomplete Congress — a Congress in which the Southern States were wholly unrepresented. In the House of Representatives, the Amendment was passed with 120 to 32, with 32 abstentions; thus, the requirement of a two-thirds majority was satisfied. However, the 61 duly elected Representatives of the 11 States of the former Confederacy were denied their seats; as all of these men would doubtlessly have cast negative votes, the final two-thirds majority would have been reduced to a mere 56 percent. Furthermore, McDonald pointed out, that majority included the newly admitted West Virginia and Nevada, the constitutionality of both of whose Statehood was highly questionable. In the Senate, the Amendment was passed with 33 to 11, with 5 abstentions. If the 22 Southern Senators had been allowed their rightful seats, that majority would have been a tie; again, if the two Senators apiece from West Virginia and Nevada were subtracted from the roster, the Amendment would not have had even a simple majority.
McDonald further stated that “the numbers cited concerning the vote in the Senate mask some chicanery”, noting the case of newly-elected New Jersey Senator John Stockton, an opponent of the Fourteenth Amendment who had been formally seated when the Thirty-Ninth Congress was convened. After polling revealed that only 33 Senators favored the Amendment, one short of the requisite 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 V, 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 22 to 21. 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 33 votes for the Fourteenth Amendment become a two-thirds majority.” Manifestly, then, the Amendment was not properly proposed, “passing” the House and the Senate without the requisite majorities. Even, however, were we to concede that the Amendment was properly proposed and submitted to the States for ratification, the Amendment would still be unconstitutional, for that ratification process was demonstrably more ludicrous.
Senator Charles Sumner, forever known as the victim of that proud South Carolinian Representative Preston Brooks, promulgated his “State suicide” theory, whereby the act of secession had terminated the Statehood of each member of the former Confederacy. Parallel to this concept was Representative Thaddeus Stevens’ contention that the Southern States were conquered vassals with no political rights whatsoever. By either of these arguments, the Southern States were under the sole supervision of Congress, under its power to govern territories; if the former Confederate States were no longer States, then, they could not ratify Amendments. According to that logic, the three-fourths majority would apply to just 25 States, making the magic number 19, as opposed to 27 of 36 States. Flimsy though their arguments were, Congress, strangely enough, did not follow either Sumner’s or Stevens’ theories, instead taking an even more specious approach. When the Amendment was submitted to the States, it was sent to all 36 Governors, thus acknowledging that the Southern States were still recognized as States, that they had not committed “suicide” or been “conquered” as territorial acquisitions.
Five States ratified the Amendment within the first three months: Connecticut, New Hampshire, New Jersey, Tennessee, and Oregon. New Jersey barely secured the requisite majority, and later rescinded its ratification. In Tennessee, opponents of the Amendment prevented a House quorum by failing to appear, and two of these absentee State Representatives were forcibly arrested. A court ordered their release by a writ of habeas corpus, but the House held the men anyway. Though the Speaker declared that there was no quorum, he was overruled by those present, and the rump legislature proceeded to ratify the Amendment. In Oregon, events were just as unscrupulous. Republicans held a majority in the House by only one member, and two of their seats were challenged. These two were temporarily seated in order to ratify the Amendment, but later in the session, the Republicans were determined to have been illegally elected, their seats awarded to Democrats. Oregon then rescinded its ratification, passing a resolution declaring that ratification in the Southern States, about which more later, 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.”
Vermont ratified the Amendment, and the Southern States began to respond. Texas overwhelmingly rejected the Amendment, followed by Georgia, Florida, Arkansas, and North and South Carolina. In California, Republican Governor F.F. Low refused to call a special session of the legislature to even consider the Amendment, which was in any case later rejected. Virginia, Alabama, Mississippi, Louisiana, Kentucky, Delaware, and Maryland also refused to ratify the Amendment. Thus, McDonald remarked, “as the last days of the Thirty-Ninth Congress approached…the Fourteenth Amendment appeared to be doomed.” Nebraska was admitted as a State three days before the expiration of the session, raising the number of American States to 37; 28 States were now needed to ratify the Amendment, counting the former Confederacy, and 12 States had already rejected it. Ohio added itself to the list of rescissions; if these rescissions were allowed, only 19 States would have ratified the Amendment. Congress summarily refused to recognize the rescissions, “despite the argument that a legislative ratification of an amendment was not a contract until it became part of the Constitution and could therefore be cancelled.”
Two days before the end of the Thirty-Ninth Congress, the Republicans passed the Reconstruction Act, overriding President Johnson’s veto; the Act, slightly amended by the Fortieth Congress, was employed as a whip to beat the Southern States into docile submission. The Reconstruction Act followed the logic of Sumner and Stevens, declaring that “no legal State governments” existed in the “rebel” States that had refused ratification. The Act divided the late Confederacy into five military districts, dissolving the elected State legislatures and instituting martial law. “Elections” were called in which whites were disfranchised, with only black freedmen permitted to “vote.” The new State legislatures, essentially rump puppets installed by military junta, were directed to rewrite their State constitutions and submit them for approval to Congress. Readmission as full-fledged States was conditioned upon ratification of the Fourteenth Amendment by the reconstituted rump legislatures. The Reconstruction Act was baldly spurious.
First, the logic of the Act was in direct conflict with Ex parte Milligan, in which only three months prior, the Supreme Court held that “martial law could not constitutionally be imposed, in the absence of war or rebellion, in areas where the civilian courts were functioning.” Next, McDonald emphasized, “in its peculiar holding that the States had continued to exist but were without legal government, the Act entangled itself in contradictions.” Indeed, Mississippi had already amended its constitution, and the other Southern States had done so “under the auspices and with the approval of the federal government.” For example, Louisiana had amended its constitution under the direction of President Lincoln. Most damningly, “Congress had called upon the legislatures elected under those constitutions to ratify the Thirteenth Amendment in 1865.” The votes of Alabama, Arkansas, Georgia, Tennessee, and North and South Carolina had been counted as part of the three-fourths majority with which the Thirteenth Amendment was ratified. In other words, McDonald wrote, “in 1865 Congress had recognized the legitimacy of the southern state governments for purposes of ratifying the Thirteenth Amendment, but, though nothing about those governments had changed by 1867, Congress denied their legitimacy when they voted to reject the Fourteenth Amendment.”
As President Johnson noted in his veto message, the Reconstruction Act was a wholesale violation of the Fifth Amendment, stripping away the political and civil rights of white Southerners without anything resembling due process of law. Johnson wrote, "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." Moreover, it effectively served as “a bill of attainder against nine million people at once”, all of whom were excluded from a hearing through their representatives, on the basis of “an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence.”
McDonald explained that the statutory “preclusion of Southern representation in Congress…distorted one feature of the Constitution to annul two other features. Article I, Section V, which declares that ‘each House shall be the Judge of the Elections, Returns and Qualifications of its own members’, clearly contemplates the judging of each member individually, through hearings and the taking of evidence. Yet by arbitrarily excluding members from specified states, Congressmen were not judging; they were refusing to judge. By doing so, they deprived the designated States of their constitutional rights to representation as provided by Article I, Sections II and III, and Article V.” Senator James Doolittle expressed the animus that motivated the Reconstruction Act when he said that “the people of the South have rejected the constitutional Amendment,” and that Congress would therefore “march upon them and force them to adopt it at the point of the bayonet” and rule them with military force “until they do adopt it.”
The complaints of the Southern States fell on deaf ears. The Supreme Court “declined to intervene, and, despairing of stopping the Congressional juggernaut, ruled by military commanders who removed governors and judges at will, and swept by rumors that Congress intended to confiscate and redistribute their property (as some Radicals indeed did), the Southern States began to capitulate.” The opening day of the Louisiana House and Senate sessions “began with the reading of orders from General Grant, stressing the supremacy of the Army over the ‘provisional’ civil government, established in accordance with the Reconstruction Act. Armed federal soldiers milled around outside. They were still there when the puppet legislature voted to ratify the Fourteenth Amendment ten days later.” McDonald recounted that, valiantly though ineffectually, “Southerners made some feeble attempts at resistance. In February, Alabama whites had sought to prevent the adoption of a constitution that was being forced on them under the Reconstruction Act. Using a tactic contemplated in other states as well, they stayed away from the polls to prevent the new constitution from being approved by a majority of the registered voters. Of the 170,631 registered voters, fewer than 71,000 turned out; and though 69,807 of these voted to ratify, that was less than a majority. Congress responded by promptly repealing the majority-of-the-voters requirement and allowing a bare majority of votes cast to suffice.”
As McDonald explained, “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.” Arkansas was the first former Confederate State to adopt its new constitution and ratify the Fourteenth Amendment, doing the latter on April 6, 1868. However, Congress did not propose a resolution to “readmit” Arkansas until May 7, and said resolution was not adopted until mid-June. Therefore, McDonald highlighted, “the vote on the Fourteenth Amendment had been taken by a state which, under the congressional Act of March 2, 1867, still had ‘no legal State government.’”
“Ratification” in Florida was stranger still. In May 1868, that State passed its new constitution, “drafted by a convention presided over by Colonel John Sprague of the United States Army, in full military uniform.” The rump legislature met in June and, “as dictated by the Acts of Congress as conditions precedent to admission”, ratified the Fourteenth Amendment. A knot arose when Congress debated whether or not to “readmit” Florida, as “it turned out that the wording of the Amendment as adopted by Florida differed in several particulars from the phraseology proposed by Congress. Some Senators objected that Florida had therefore not properly adopted the Amendment. After some desultory discussion, Senator Frederick Frelinghuysen of New Jersey checked the ratifications of four States chosen at random — New York, Pennsylvania, Michigan, and Wisconsin — and reported that none had ratified the Amendment exactly as proposed by Congress. ‘In the ratification by Wisconsin’, he said, ‘in one sentence, there were four or five errors’, some of them substantive. He added that if he examined the ratifications of all the States, he would probably ‘find like inaccuracies in each certificate.’ Instead of ruling that no State had properly ratified, however, Congress decided that ratification in any form was acceptable; and Florida was accordingly readmitted to Statehood as a ‘legal government.’”
Congress, however, was not content with its prior depredations. In June 1868, Congress altered the procedure by which the Southern States were to be “readmitted”; prior to this, “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.” The enactment of the procedural shift “declared that several Southern States had ‘framed constitutions of State government which are republican’…[and] 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.” On these terms, North and South Carolina, along with Louisiana and Alabama, voted to ratify the Amendment. According to Secretary of State William Seward’s tally, that made 28 States; Seward suppressed his doubts regarding the various rescissions of the Amendment by stating that he was not authorized “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, quite unhelpfully, that the Amendment had been properly ratified “if [emphasis mine] 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.” Seward proclaimed the Fourteenth Amendment ratified on July 20, and Congress subsequently “confirmed” its adoption into the United States Constitution.
[i] Wolters, Raymond. Race and Education, 1954-2007 (University of Missouri, 2009).