1957 - US NEWS & WORLD REPORT - There is No 14th Amendment - by David Lawrence - Historical Archive

               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.]