Since its adoption, the Constitution of the United States has been amended twenty-seven times. Of those amendments, one of the most controversial, despite its original, narrow intent, is Amendment XIV, whose five sections state the following:
1. 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.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Of the five sections, sections 2 through 5 are predominantly free of insult, although in Section 3 is found language that abridges the right of a free people to select for themselves those who will represent them in government. The presumption that a person who had taken an oath to support the US Constitution had somehow incited insurrection or rebellion by choosing to secede from the union, based on his belief–and that of his constituents–that his state’s interests were no longer served by remaining so affiliated, presumes that secession is itself unconstitutional. Nothing could be further from the truth. Many have attested that since the Constitution only addresses the admission of new states, but does not mention the voluntary departure of a state once so joined, secession must not be legal. The federal courts have ruled secession to be unconstitutional, because the Articles of Confederation–not the Constitution–spoke of a “perpetual union.” However, because Amendment X quite specifically commands that powers not vested in the federal government are reserved to the states, or the people, there can be little doubt that secession is, in fact, within the powers of a state and not, as the protagonists claim, a crime against the Constitution. Moreover, since those who opted to secede did no harm to the Constitution itself, they did not violate their oaths. In that light, Section 3 can only be viewed as a gross intrusion on the liberties of the people. But that pales in comparison to the abuses heaped on the states by Section 1.
Following the ratification of Amendment XIII, which abolished slavery throughout the United States, the citizenship status of the emancipated slaves was left indeterminate: were they citizens or were they not? The primary purpose of Amendment XIV was to codify that black Americans were, in fact, citizens of the United States and that they enjoyed the same rights and privileges, and the same protection of the law, as those enjoyed by every other citizen. Though many people claim its intent and application were more far-reaching, consider that amendments to the Constitution are introduced to remedy problems extant at the time the amendments are introduced. They do not address or correct quandaries that either do not exist, or that cannot at the time be imagined. And yet, the first section of Amendment XIV has been so broadly interpreted that it has spawned a federal juggernaut against which the states are powerless to defend themselves.
Today, Section 1 has been interpreted to mean that any child born within a state or territory of the United States is automatically a citizen. Thus, expectant mothers from south of the border–or anywhere else, for that matter–can step into the United States and deliver their children, knowing with certainty that their children will be considered citizens. This interpretation of Section 1 is deeply flawed, as it ignores the qualifier, that one must be “subject to the jurisdiction of” the United States. If we play semantic games with that phrase, we can twist it into any form we like, but the fact is that at the time the amendment was drafted, the phrase was understood to mean that such children’s parents must “owe allegiance to” the United States for birthright citizenship to apply. Based on that understanding, it is certain that the children of those born to parents here illegally are not citizens.
Section 1 has been further corrupted to permit federal courts the power to incorporate selected portions of the Bill of Rights and apply the protections therein to the states (Incorporation Doctrine), despite the fact that those protections specifically targeted federal encroachment on the rights of the people and the states. As a direct result, we today find that the federal courts have the power to strike down state laws, overturn state courts’ decisions, and, ultimately, to annihilate the very constitutions of the states, thus cementing the states’ current role of administrative districts of the federal government.
At this point, let us take a short detour and examine the debates that led to the proposal of Amendment XIV. The debates are important because they serve to illustrate the fact that the Constitution was already misunderstood and misinterpreted at such an early date. Two remarks, in particular, clearly evidence the flawed understanding already coming to the fore. In the first, Senator James Nye suggested that Congress enjoys the power necessary to enforce the Constitution against the states:
In the enumeration of natural and personal rights to be protected, the framers of the Constitution apparently specified everything they could think of — “life,” “liberty,” “property,” “freedom of speech,” “freedom of the press,” “freedom in the exercise of religion,” “security of person,” &c.; and then, lest something essential in the specifications should have been overlooked, it was provided in the ninth amendment that “the enumeration in the Constitution of certain rights should not be construed to deny or disparage other rights not enumerated.” … All these rights are established by the fundamental law.
Will it be contended, sir, at this day, that any State has the power to subvert or impair the natural and personal rights of the citizen?
In the second, Senator William Stewart contended that:
… [T]he federal Constitution is “the vital, sovereign, and controlling part of the fundamental law of every State,” and although the states may repeat parts of it in their own bills of rights, “no State can adopt anything in a State constitution in conflict.”
Clearly, neither these men nor their successors today understand that the Constitution, with very few exceptions, places no restrictions on the states, but instead constrains the federal government alone. Yet with the current understanding of Amendment XIV, the federal government wields enormous power over the states, power the Framers most assuredly never intended or envisioned. That power, however, is unfounded, because Amendment XIV was neither proposed nor ratified in accordance with Article V of the Constitution.
Article V spells out the process by which the Constitution may be amended:
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.
In proposing Amendment XIV, Congress was in outright violation of Article V. Representatives of ten southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas, and Virginia), having been legitimately elected by the people of those states, were forbidden to take their seats in Congress. The Radical Republicans then in control, in an ironic twist, claimed that those states were, in fact, not states and, therefore, not entitled to representation. Yet, as President Johnson pointed out in a message to Congress:
This bill and the acts to which it is supplementary are all founded upon the assumption that these ten communities are not States and that their existing governments are not legal. Throughout the legislation upon this subject they are called “rebel States,” and in this particular bill they are denominated “so-called States,” and the vice of illegality is declared to pervade all of them. The obligations of consistency bind a legislative body as well as the individuals who compose it. It is now too late to say that these ten political communities are not States of the Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.
During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and. again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be districted. The last act on this subject was passed July 23, 1866, by which every one of these ten States was arranged into districts and circuits.
They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment — seven of which votes were given by seven of these ten States — it was proclaimed to be a part of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.
So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States. That august tribunal, from first to last, in the administration of its duties in banc and upon the circuit, has never failed to recognize these ten communities as legal States of the Union.
But it gets worse. Not content with having excluded the southern states, on March 27, 1866, the Senate then retroactively unseated John P. Stockton–as opposed to expelling him–the duly elected senator from New Jersey, thereby denying New Jersey a portion of its representation. Even more damning is Congress’s consideration of a resolution that would “prohibit the admission of senators and representatives into either house of Congress from the States lately in rebellion until Congress shall have declared such States entitled to representation.” [emphasis added] Such a resolution, on its face, may seem justified. However, in light of President Johnson’s message, and given Article V’s uncontestable declaration that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” there is no doubt that Congress committed an act of egregious violence against the Constitution.
Having patted themselves on the back for their artful chicanery, the rump Congress (i.e., a Congress not representative of all the states), submitted the amendment to all of the states for ratification. Thirteen states, including Delaware and Maryland, promptly rejected it. Congress responded by enacting the Reconstruction Acts, which illegally dissolved the legally constituted governments of nine southern states, and formed them into military districts subject to the military authority of the United States. The acts went on to require that:
Sec. 5. And be it further enacted, That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion, or for felony at common law; and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates; and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates; and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same; and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen; and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law; and then and thereafter the preceding sections of this act shall be inoperative in said State; Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention.
Sec. 6. And be it further enacted, That until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil government which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the fifth section of this act; and no person shall be eligible to any office under any provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment.
President Johnson vetoed each of the Reconstruction Acts (which ultimately led to his impeachment), correctly noting that they were wholly unconstitutional–and Congress overrode the veto each time
Here again, Congress committed an act of violence on the Constitution. It had no power under the Constitution to dissolve the previously recognized, republican governments of those states. Its sole purpose was to ensure ratification of Amendment XIV, and that ratification was doomed to fail if Congress let stand the southern states’ original votes. And, of course, Congress, through its unconstitutionally installed military governors, managed to get the requisite votes for ratification. Those votes, however, were null and void, since those governments were not representative of the people of the southern states, but of the federal government itself.
On July 9, 1868, with the southern states chained into submission and having changed their votes from “nay” to “yea,” 28 of the 37 states then in the union had, at least in theory, assented to the amendment. But that’s not the end of the story. Both New Jersey and Ohio had withdrawn their assents prior to the actual ratification. New Jersey’s resolution, in particular, is a scathing indictment of a run-away federal government:
The said proposed amendment not having yet received the assent of the three-fourths of the states, which is necessary to make it valid, the natural and constitutional right of this state to withdraw its assent is undeniable….
That it being necessary, by the constitution that every amendment to the same should be proposed by two-thirds of both houses of congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven states of the union, upon the pretence that there were no such states in the Union; but, finding that two-thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States senate, and without any pretext or justification, other than the possession of the power, without the right, and in palpable violation of the constitution, ejected a member of their own body, representing this state, and thus practically denied to New Jersey its equal suffrage in the senate, and thereby nominally secured the vote of two-thirds of the said houses.
The object of dismembering the highest representative assembly in the nation and humiliating a state of the Union, faithful at all times to all its obligations, and the object of said amendment, were one: to place new and unheard of powers in the hands of a faction, that it might absorb to itself all executive, judicial and legislative power, necessary to secure for itself immunity for the unconstitutional acts it had already committed, and those it has since inflicted on a too patient people….
It enlarges the judicial power of the United States so as to bring every law passed by the state, and every principal of the common law, relating to life liberty, or property within the jurisdiction of the federal tribunals, and charges those tribunals with duties, to the due performance of which, they, from their nature and organization, and their distance from the people, are unequal….
But the demand of the supporters of this amendment in this state: that congress should compel the people of New Jersey to adopt what is called “impartial suffrage,” makes it apparent that this section was intended to transfer to congress the whole control of the right of suffrage in the state, and to deprive the state of a free representation by destroying the power of regulating suffrage within its own limits, a power which they have never been willing to surrender to the general government, and which was reserved to the states as the fundamental principle on which the constitution itself was constructed, the principle of self-government.
Neither Congress nor Secretary of State Seward recognized either state’s withdrawal. Indeed, on July 20, 1868, Seward certified that the amendment had been ratified, if the said withdrawals were ineffective. He dismissed out of hand New Jersey’s correct assertion that a state was free to withdraw its assent at any time prior to the actual ratification of the amendment. In doing so, he also overlooked the fact that the southern states, under their military rulers, had withdrawn their rejections. If it is permissible for a state to withdraw its rejection and choose to assent, logic dictates that the reverse must also be true. Furthermore, absent law forbidding such acts, they are entirely legal and constitutional. Nevertheless, on July 21, 1868, Congress issued a joint resolution declaring that the amendment had passed, and directed Seward to promulgate it as such. Congress’s declaration, however, did not magically make constitutional that which had not been so before.
For the amendment to have been ratified in accordance with Article V required that 28 of the then 37 states assented to it. Discounting the votes of the nine states whose legitimate governments had been illegally dissolved, and acknowledging the right of both New Jersey and Ohio to withdraw their assents, by 1870, only 26 states had voted to ratify (70.27 percent), falling short of the 3/4 required. Since then, only four other states have given their assents (Delaware, Maryland, California, and Kentucky). All of those assents occurred after 1900, by which time there were 45 states in the union, which meant that ratification depended on the assents of 34 states. Since 3/4 of the states did not, and still have not, assented to it–and, more importantly, because its proposal was a violation of Article V–Amendment XIV is null and without effect.
- Readings in American Constitutional History, 1776-1876
- New Jersey Joint Resoution Rescinding Its Assent to Amendment XIV
- The 14th Amendment–Equal Protection Law or Tool of Usurpation?
- Intent of the Fourteenth Amendment …”
- Reconstruction Acts of 1867
- Footnote on 14th Amendment Ratification
- Senate Journal, March 27, 1866
- Senate Journal, 39th Congress, First Session