In drafting the Constitution of the United States, its framers understood that the fledgling republic they created would grow and mature and that, as it did so, the Constitution might require amendment to accommodate the changes that came about as a result. To that end, Article V spelled out the requirements for amending it:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Today, we know that the Constitution has been amended twenty-seven times. Each amendment served to right a problem of the day. That is, generally, the issue a particular amendment sought to address was current; it was not intended to correct for a situation that might occur fifty years down the road. For example, the first ten, the Bill of Rights, were included because many of the anti-Federalists were not convinced that the Constitution itself was enough to protect what they considered essential liberties, nor were they convinced that the newly-created federal government would forever constrain itself to the Constitution’s boundaries. If it had not been clear from the outset that the Constitution created a small federal government of limited powers, these amendments–the tenth in particular–made it so. Subsequent amendments addressed the issues of their day, such as the thirteenth, which abolished slavery, and the twenty-second, which set presidential term limits.

One of the amendments frequently mentioned in discussions on this site is Amendment XIV (hereafter, “XIV”). Two primary controversies surround this amendment. The first is, quite obviously, its meaning. The second is the question as to the legitimacy of its introduction and ratification. We shall attempt to address both, though we will focus only on Section 1, which was then–and remains now–the most contentious part of the amendment:

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.

As noted above, amendments to the Constitution are introduced to address issues current at the time of their introduction, and XIV was no different. Following the ratification of Amendment XIII, which abolished slavery throughout the union, the status of the former slaves remained uncertain, primarily because they were not recognized as citizens of the United States. In Scott v. Sandford (60 U.S. 393 (How.), 1857), Chief Justice Taney, writing for the Supreme Court, ruled that:

United States citizenship was enjoyed by two classes of individuals: (1) white persons born in the United States as descendents of “persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body,” the United States of America, and (2) those who, having been “born outside the dominions of the United States,” had migrated thereto and been naturalized therein. The States were competent, he continued, to confer state citizenship upon anyone in their midst, but they could not make the recipient of such status a citizen of the United States. The “Negro,” or “African race,” according to the Chief Justice, was ineligible to attain United States citizenship, either from a State or by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States at the date of ratification of the Constitution. [1]

As with any amendment, we must study XIV in the context of the time. Given the Taney court’s decision in Scott v. Sandford, coupled with the corresponding indeterminate status of the former slaves after the passage of Amendment XIII, there can be no doubt that the purpose of XIV was to right a serious wrong–a wrong perpetrated against black Americans. And, since there was no question that the white population were citizens, one can reasonably conclude only that XIV applied to the status and rights of black Americans. Thus, in simplest terms, XIV said that the former slaves were indeed citizens, that they had the same rights and privileges as all other citizens, and that no government could restrict or infringe upon those. By extension, it did the same for all future citizens, whether native-born or naturalized, but it was understood to limit the citizenship to those who owed allegiance to the United States and were thus subject to its jurisdiction.

Unfortunately, Congress and the courts have since bent XIV into such a mis-shaped mess that it is no longer recognizable, the consequences of which are a federal government that routinely polices state governments (in reality, it should be the other way round), striking down laws duly enacted by the states’ legislatures, and overturning rulings of the states’ courts–or, worse still, creating law out of whole cloth, and even ordering the imposition of taxes! To the cogent, reasoning mind, these are the result of outrageous perversions of the language of the amendment, by which the federal government justifies the trampling of the states’ sovereign rights.

Another important question when it comes to XIV is whether or not it was introduced and ratified according to the provisions of Article V of the Constitution. At the time of its introduction, on June 25, 1866, there were 36 states. (Here, we accept the Union states’ assertion that the southern states’ secessions were unconstitutional, and that they had never officially left the Union.) That meant that the introduction of a constitutional amendment required the consent of a two-thirds majority in both houses of Congress. At the time, however, Congress refused to seat the representatives and senators from the southern states, a clear violation of Article V’s provision that “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Thus, 11 states–nearly one third–were shut out of the debate and vote on introducing the amendment. In their absence, the “rump” Congress, consisting of representatives of the remaining 25 states, garnered the two-thirds vote (two thirds of 25, not 36, states) necessary to introduce XIV, whereupon it was presented to all 36 states for ratification (later 37 states, after Nebraska’s entry in 1867).

Following its introduction, all of the southern states, except Tennessee, promptly rejected the amendment, making ratification all but impossible. In response, the rump Congress (the “radical Republicans”) passed the Reconstruction Act of 1867, expelling the southern states from the union and placing them under martial law. Using extortionary tactics, Congress required that the southern states ratify XIV before they would be readmitted to the union; this strong-armed approach apparently worked: 7 of the 10 states acquiesced and voted to ratify in the span of two months’ time. This calls into question whether states that had been expelled from the union, who had governments not recognized by Congress, and who had no representation in Congress at all could cast legal ratification votes. The answer is unquestionably not, but their votes were counted anyway. Had the coerced votes not been counted, as they should not have been, the ratification count would have fallen short of the three-fourths majority required for passage.

The case presented here brings to mind several questions worthy of debate. Again, we’ve limited the discussion to Section 1, and the questions pertain to that section alone.

  1. When viewed in the context of the time in which XIV was introduced and ratified, is it logical to assume that the amendment was intended for a singular purpose, or was it more far-ranging?
  2. Is it logical to assume that the meaning of law changes over time, adapting to an ever-changing, maturing society, or must the law, in order that it be consistently applied and enforced, remain unchanged from the understanding of it at the time of its adoption, unless and until amended?
  3. Finally, based on the events described, was XIV legally introduced and ratified?
The Travesty of Amendment XIV

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