THE CONTROVERSIAL FOURTEENTH AMENDMENT
7/1/2010
On July 9, 1868, the Fourteenth Amendment to the U.S. Constitution was ratified by the states and became law. Among other provisions, this guaranteed citizenship to all native-born or naturalized Americans, including former slaves. The amendment also prohibited states from depriving people of "life, liberty, or property, without due process of law, nor to deny to any person… equal protection of the laws."
Many Supreme Court cases have been decided on the basis of the Fourteenth Amendment since its inception, particularly in cases involving civil rights. But was this amendment legally ratified? And if not, is this amendment even valid?
When the Fourteenth Amendment was first proposed by Congress in June 1866, the Civil War had ended just one year earlier and the "Radical" Republicans who dominated Congress were determined to punish the southern states of the former Confederacy for rebelling against the U.S. The southern states were denied reentry into the Union, which included denying them congressional representation. As a result, many laws were passed without either their input or their consent.
Earlier in 1866, Congress had passed the Civil Rights Act, which guaranteed U.S. citizenship to former slaves and denied U.S. citizenship to former Confederates. This law was opposed by most whites in the South, making it difficult to enforce. Consequently the Radicals sought to make the law’s provisions permanent by putting them into a constitutional amendment. This led to congressional passage of the Fourteenth Amendment later that year.
Amendment Provisions and Opposition
The Fourteenth Amendment contained four sections:
- All people born in the U.S. would be automatic U.S. citizens, including former slaves. No person could be denied "life, liberty, or property, without due process of law, nor deny to any person… equal protection of the laws."
- The Constitution’s clause in which each slave would be counted as three-fifths of a person would be canceled. Any infringement on citizenship rights would be penalized by reducing a state’s population in the census, thus reducing the state’s representation in Congress. No former Confederate would be allowed to vote.
- No former Confederate could hold public office without consent of two-thirds of both houses of Congress.
- The Confederate debt would be repudiated.
- Congress would enact legislation to enforce this amendment.
When Congress approved this amendment with a two-thirds majority in both houses in June 1866, the amendment was sent to the states for ratification. To become law, three-fourths of all state legislatures had to approve the amendment. Intense opposition to this amendment meant that ratification was not guaranteed. Radicals countered by threatening the southern states that failure to ratify the amendment would forfeit their representation in Congress.
A Radical Departure from the Framers’ Intent
This was the most radical amendment proposed in U.S. history up to that time. By requiring states to provide "due process" and "equal protection," it enabled the federal government to interfere in state affairs like never before. This would fundamentally shift the balance of power in the American federalist system from the states to the federal government, which directly conflicted with the framers’ intent when they drafted the Constitution. Under this amendment, state sovereignty would be superseded by federal authority over individual rights.
In addition, by granting citizenship to former slaves and revoking citizenship from former Confederates, the amendment would reduce southern representation in the House of Representatives, which was based on citizen population. This also placed the power of determining citizenship, which up to that time had been a state power, into federal hands.
Arguments Against Ratification
President Andrew Johnson opposed ratifying the amendment on legal grounds. He argued that since the southern states had no representation in Congress, they were technically not a part of the Union and therefore should not be forced to ratify a constitutional amendment.
Congress passed the amendment with the necessary two-thirds majority only due to the absence of southern members. Had the southern states been allowed representation, the amendment would have been defeated. So the southern states were not allowed to vote on the amendment in Congress, but now they were being required to ratify the amendment to make it law. Johnson cited this legal inconsistency as a reason for southern states to oppose ratification.
Most southerners opposed the amendment because of its unprecedented infringement on states’ rights. The "due process" and "equal protection" clauses placed state power in federal hands, which was exactly what most southerners had fought against during the Civil War.
But perhaps most offensive to southerners were the provisions banning former Confederates from voting or holding public office. Thus the traditional southern leadership would be treated as foreigners and forever branded traitors in a constitutional amendment. Many believed that these provisions alone would prompt the southern states to reject the amendment, but the Radicals were determined to force the recalcitrant states to accept it anyway.
Even some northerners feared the precedent of federal power infringing on states’ rights in this amendment. Secretary of the Interior Orville Browning said, "One of the greatest perils which threatens us now is the tendency to centralization, the absorption of the rights of the States, and the concentration of all power in the General Government. When that shall be accomplished, if ever, the days of the Republic are numbered."
Following the urging of President Johnson, 10 of the 11 southern state legislatures rejected the Fourteenth Amendment in the fall of 1866 (ironically only Johnson’s home state of Tennessee voted to accept). This meant that the necessary three-fourths majority was not obtained, and the amendment was defeated. But the Radicals would not accept defeat.
Questions of Legality
The southern states rejected the Fourteenth Amendment using the same process that was utilized in accepting the Thirteenth Amendment abolishing slavery in 1865. The Radicals should have accepted both verdicts equally, but instead they accepted southern approval of the Thirteenth but denied southern rejection of the Fourteenth.
Partly in response to the southern rejection, Congress enacted the Military Reconstruction Act in 1867, which placed the southern states under Federal military rule until they formed new governments that would accept the Fourteenth Amendment. Only by accepting the amendment would the southern states enjoy representation in Congress. However, as President Johnson argued, if a state was denied representation, it should have also been denied the ability to ratify a constitutional amendment.
When southerners sought to oppose the ratification process through the federal courts, Congress passed a law over Johnson’s veto that prevented the Supreme Court from hearing any cases on the issue. The law was clearly passed out of fear that the Court would find the process unconstitutional and reject the amendment. Without the "due process" of law that the Fourteenth Amendment was supposedly drafted to protect, the southern states were forced to submit.
The Controversial Ratification
To end military rule, restore civil government and receive representation in Congress, the southern states finally ratified the Fourteenth Amendment in 1868. The ratification took place almost literally at gunpoint from Federal occupation forces. By this time, many northerners observing the process began recognizing the dangerous precedent that this type of coercion set. Consequently many northern states reconsidered their initial approvals of the amendment.
New Jersey, Oregon and Ohio all revoked their initial ratifications. The New Jersey legislature warned that the amendment had been "made vague for the purpose of facilitating encroachment on the lives, liberties, and property of the people." In Oregon, the vote to approve the amendment had taken place when the seats of two Republicans were being legally challenged. When it was determined that the seats had been won illegally, two Democrats replaced the Republicans and the amendment was rejected in the re-vote.
Without these three northern states, the amendment would fall short of the three-fourths majority needed to become law. As a result, Secretary of State William Seward refused to allow the states’ new vote against the amendment, even though he accepted the southern states’ new vote in favor. Thus, although it was not properly ratified, the Fourteenth Amendment was certified as part of the Constitution anyway.
The Amendment Today
Since its inception, the Fourteenth Amendment has had the effect that its opponents had warned about: it has centralized power in the federal government by draining powers from the states that had once been guaranteed by the Bill of Rights.
While intended to establish national citizenship and provide equal rights and protection, the amendment has undermined the federalist principle of local self-government envisioned by the founders, in the process removing a powerful check that states once had on federal power. Consequently, the Fourteenth Amendment is partly responsible for the enormous size and scope of the federal government today.
WalterCoffey.com
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