Was the Fourteenth Amendment Constitutionally Adopted?


The Fourteen Amendment has been used and abused over the years. Several factors should be kept in mind in the history of the amendment’s purpose, implementation, and constitutional practice. First, there were constitutional irregularities regarding its ratification. Second, it’s become a constitutional wax nose that has been twisted into various shapes in order to get controversial laws enacted.

There is no better historian to read on the subject than Forrest McDonald, Emeritus Professor of History at the University of Alabama. He is considered to be one of the leading experts on the founding period and the United States Constitution.

“In a New York Times article . . ., McDonald was quoted as saying that the federal government had ‘lost its capacity to protect people in life, liberty and property, to provide for the common defense, or to promote the general welfare. However, in interviews and in his Jefferson Lecture, McDonald opposed the idea of a new constitutional convention: in part because he felt that such a convention would become a ‘runaway’ and a ‘catastrophe’; in part because he thought the inefficiency of the American government was a saving virtue limiting its capacity for oppression;and in part because he felt that in the present day it would be impossible to assemble a group as capable as the 55 delegates who attended the Constitutional Convention of 1787, which took place in an era McDonald called ‘America’s Golden Age, the likes of which we shall not see again.'” (source)

Read more:Judicial Abuse of the 14th Amendment: Abortion, Sexual Orientation & Homosexual ‘Marriage.'”

The following is from McDonald’s article “Was the Fourteenth Amendment Constitutionally Adopted?

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During and after the Civil War, Southerners repeatedly declared that the cause for which they fought was the “sublime moral principle” of states’ rights. Given such protestations, and given the history of southern resistance to federal authority throughout the antebellum period, it is easy enough to associate states’ rights exclusively with the South — but it is also mistaken. Connecticut and Massachusetts endorsed interposition in 1808; the Hartford Convention of 1814 did the same. In 1840 Vermont made it a crime to aid in the capture of a runaway slave, despite the federal fugitive slave act. In 1846 the Massachusetts House of Representatives declared the Mexican War unconstitutional; a decade later Wisconsin asserted the supremacy of its supreme court over the United States Supreme Court.

Yet it was the seceding states that had carried the doctrine of states’ rights to the extreme, and northern Radical Republicans, in their zeal to punish, plunder, and reconstruct the South, were willing to undermine the doctrine as part of their undertaking. 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.

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. For all these reasons,the constitutionality of the adoption of the Fourteenth Amendment remains open to question.

Historiographic Background

The subject has a historiography, and not altogether a savory one. In 1953, after the first round of arguments in Brown v. Board and the other school desegregation cases, the Supreme Court ordered counsel to answer certain queries regarding various events connected with the adoption of the Fourteenth Amendment. The Court was specifically interested in the intent of the framers respecting segregation, but a Tulane law professor, Walter J. Suthon, Jr., responded by publishing an article questioning the “dubious origin” of the amendment. In it, he traced the origins of Article V, the amending clause of the Constitution, put together a brief history of the proposal of the amendment and its forced ratification in the South, and concluded that the intent of the framers was irrelevant, for the whole proceeding, start to finish, was unconstitutional.

In 1958, after the decision in Brown v. Board and amidst massive southern resistance to desegregation, a Houston lawyer named Pinckney G. McElwee published an article in the South Carolina Law Quarterly that reached the same conclusion. McElwee’s study was more thorough than Suthon’s had been, and he quoted from and cited more contemporary documents, but his piece was marred by a certain shrillness of tone.

Two years later, the Georgia Bar Journal published “a statement issued by the State Sovereignty Commission of Louisiana” entitled “Unconstitutional Creation of the Fourteenth Amendment.” The statement rehearsed the facts, garbling several of them along the way, called for the Supreme Court to declare the amendment illegal, and concluded that the amendment was mistitled and should be designated “Military Edict No. 1.” Baylor Law Review produced a shorter-and more accurate and more moderate-version of the argument in 1961, and the Alabama Lawyer reprinted that article in 1963.

All such efforts were directed against the desegregation decisions, and in 1966 a California lawyer named Ferdinand Fernandez took pen in hand to write a long and angry rebuttal. He succeeded in answering some of the critics’ charges, but he misunderstood the main thrust of their arguments and ended up knocking over straw men. At that point legal scholars and historians largely abandoned the issue-though it occasionally cropped up in the literature for another two decades-and concentrated their efforts instead upon studying the intent of the framers. They have generated a huge body of literature on that subject, but shed little light on the question of the constitutionality of the adoption procedure. Among such scholars, Alfred Avins, professor of law at Memphis State University, deserves special mention because of his herculean efforts in compiling a volume covering the legislative history and debates in Congress on all three Reconstruction amendments.

Avins’ volume is invaluable to anyone studying the origins of the Fourteenth Amendment, as are two studies by Joseph B. James. The first is The Framing of the Fourteenth Amendment, published in 1956. The second is a sequel, The Ratification of the Fourteenth Amendment, published in 1984. James is judicious and cautious, and he avoids drawing any conclusions about whether the amendment was constitutionally adopted, but he provides abundant material from which readers can draw their own conclusions.

The full article can be read at The Abbeville Institute.

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