Tulane Law Review vol. 28 1953, The Dubious Origin Of The Fourteenth Amendment,
by Walter J. Suthon, Jr.
"How remote was this Hamiltonian concept from the events of 1867 and 1888, when a "rump" Congress arrogated to itself the power to force ratification of a rejected amendment, coercing ratifications by several of the rejecting States." page 26
"This submission was by a two-thirds vote of the quorum present in each House of Congress, and in that sense it complied with Article V of the Constitution. However, the submission was by a "rump" Congress. Using the constitutional provision that "Each House shall be the judge of the Elections, Returns and Qualifications of its own Members..." each House had excluded all persons appearing with credentials as Senators or Representatives from the ten Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas and Texas. This exclusion, through the exercise of an unreviewable constitutional prerogative, constituted a gross violation of the essence of two other constitutional provisions, both intended to protect the rights of the States to representation in Congress." page 28
"Had these ten Southern States not been summarily denied their constitutional rights of representation in Congress, through the ruthless use of the power of each House to pass on the election and qualifications of its members, this amendment proposal would doubtless have died a-borning. It obviously would have been impossible to secure a two-thirds vote for the submission of the proposed Fourteenth Amendment, particularly in the Senate, if the excluded members had been permitted to enter and to vote. Of course, that was one of the motives and reasons for this policy of ruthless exclusion." page 28
"Assuming the validity of the submission of this amendment by a two-thirds vote of this "rump" Congress, there is no gainsaying the obvious proposition that whatever "contemplation" or "understanding" this "rump" Congress may have had, as to the intent, or the scope, or the effect, or the consequences of the amendment being submitted, was necessarily a "rump" contemplation or understanding. The ten Southern States, whose Senators and Representatives were all excluded from the deliberations of the "rump" Congress, could have had no possible part in the development or formation of any "contemplation" or "understanding" of what the consequences and effects of the proposed amendment were to be." page 29
"This created a situation which made impossible the ratification of the Amendment unless some of these rejections were reversed. With thirty-seven States in all, ten rejections were sufficient to prevent the adoption of the amendment proposal. The thirteen rejections, by the ten Southern States and three border States, were more than sufficient to block ratification even if all other States finally ratified." page 30
"This is the only action ever taken on the Fourteenth Amendment by a Louisiana
Legislature exercising free and unfettered and uncoerced judgement and discretion as
between ratification or rejection of the amendment proposal. The subsequent purported
ratification of this Amendment in Louisiana was by a legislature of a puppet government,
created by the radical majority of Congress to do the bidding of its master, and compelled
to ratify this Amendment by the Federal Statute which had brought this puppet government
into existence for this specific purpose."
page 30
"It is most interesting to read the proceedings of the Louisiana House of Representatives on February 6, 1867, whereby that body adopted the Joint Resolution ordaining the refusal of Louisiana to ratify the proposed Fourteenth Amendment--the Joint Resolution which became Act 4 of 1867. This Journal shows, by the roll call, that one hundred members voted out of a total House membership of one hundred and ten--and that the unanimous vote was one hundred against ratification and not in favor of it.
This was the last opportunity for a free and uncoerced expression of views on this amendment proposal by duly elected representatives of the people of Louisiana." page 31
"The Act dealt with these Southern States, referred to as "rebel States" in its various provisions. It opened with a recital that "no legal State government" existed in these States. It placed these States under military rule. Louisiana and Texas were grouped together as the Fifth Military District, and placed under the domination of an army officer appointed by the President. All civilian authorities were placed under the dominant authority of the military government." page 31
"The most extreme and amazing feature of the Act was the requirement that each excluded State must ratify the Fourteenth Amendment, in order to again enjoy the status and rights of a State, including representation in Congress. Section 3 of the Act sets fourth this compulsive coercion thus imposed upon the Southern States." page 32
"Senator Doolittle of Wisconsin, a Northerner and a Conservative Republican. During the floor debate on the bill, he said:
"My friend has said what has been said all around me, what is said every day: the people of the South have rejected the constitutional amendment, and therefore we will march upon them and force them to adopt it at the point of the bayonet, and establish military power over them until they do adopt it." page 32
"President Johnson vetoed the Reconstruction Act in an able message, stressing its harsh injustices and its many aspects of obvious unconstitutionality. He justifiably denounced it as "a bill of attainder against nine million people at once." page 33
"Notwithstanding this able message, the Act was promptly passed over his veto by the required two-thirds majority in each House. Military rule took over in the ten Southern States to initiate the process of conditioning a subjugated people to an ultimate acceptance of the Fourteenth Amendment." page 33
"Whatever justification for other portions of the Reconstruction Act may or may not be found in this constitutional provision, there could clearly be no sort of a relationship between a guarantee to a State of "a republican form of government" and an abrogation of the basic and constitutional right of a State, in its legislative discretion, to make its own choice between ratification or rejection of a constitutional amendment proposal submitted to the state legislatures by the Congress of the United States. To deny to a State the exercise of this free choice between ratification and rejection, and to put the harshest sort of coercive pressure upon a State to compel ratification, was clearly a gross infraction--not and effectuation--of the constitutional guarantee of "a republican form of government." page 37
Madison said in Federalist No. 43:
"....the authority extends no further than to a guaranty of a republican form government, which supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is , that they shall not exchange republican for anti-republican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance." page 38
"The enactment of the legislature of the puppet government of Louisiana which ratified the Fourteenth Amendment is embodied in Act 2 of 1868. The legislative journals of that session reflect the presence and dominance of the military, all as provided for and contemplated by the Reconstruction Act." page 39
"The House Journal shows that on June 29, 1868, Colonel Batchelder opened the session by calling the roll and reading an extract form the order of General Grant. The Senate Journal for the same date shows the reading of instructions from General Grant to the Commanding Officer of the Fifth Military District emphasizing the supremacy of the power of the military over the provisional civilian government. It was under these auspices that the coerced ratifications of the Fourteenth Amendment in Louisiana was accomplished." page 40
"Also worth of note in this connection ins the holding in 1895 that the levying of an income tax by the Federal Government, without apportioning the tax among the States as a direct tax, violated the taxing-power provisions of the Constitution of the United States--although, thirty years prior to this judicial vindication of what the majority of the Court deemed to be fundamental and true Constitutional provisions, the Federal Government had levied and collected income taxes for several years on a large scale, and had financed a major war of vital consequences to a very considerable extent out of revenues so obtained." page 44
The United States is still a British Colony; Part 1
The United States is still a British Colony; Part 2