IN THE SUPREME COURT FOR THE STATE OF UTAH
(Dyett v. Turner, 439 P2d 266 @ 269, 20 U2d 403 [1968])
THE NON-RATIFICATION OF THE FOURTEENTH AMENDMENT
(Judge A.H. Ellett)
The method of amending the U.S. Constitution is provided for in Article V of the original document. No other method will accomplish this purpose. That Article provides as follows:
`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;'
The Civil war had to be fought to determine whether the Union indissoluble and whether any State could secede or withdraw there from. The issue was settled first on the field of battle by force of arms, and second by the pronouncement of the highest court of the land. In the case of State of Texas v. White, /1 it was claimed that Texas having seceded from the Union and severed her relationship with a majority of the States of the Union, and having by her Ordinance of Secession attempted to throw off her allegiance to the Constitution of the United States, had thus disabled herself
from prosecuting a suit in the Federal Courts. In speaking on this point the Court at page 726, 19 L.Ed. 227 held:
`When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guarantees of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
`Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest of subjugation.
`Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first out break of the rebellion.'
It is necessary to review the historical background to understand how the Fourteenth Amendment came to be a part of our U.S. Constitution.
General Lee had surrendered his Army on April 9, 1865, and General Johnston surrendered his 17 days later. Within a period of less than six weeks thereafter, not one Confederate soldier was bearing arms. By June 30, 1865, the Confederate States were all restored by Presidential Proclamation to their proper positions as States in an indissoluble Union, /2 and practically all Citizens thereof. /3
A few Citizens were excepted from the Amnesty Proclamation, such, for example, as Civil or Diplomatic Officers of the late Confederate government and all of the seceding States; United States Judges, members of Congress and commissioned Officers of the United States Army and Navy who left their posts to aid the rebellion: Officers in the Confederate military forces above the rank of Colonel in the Army and Lieutenant in the Navy; all who resigned commissions in the Army or Navy of the United States to assist the rebellion; and all Officers of the military forces of the Confederacy who had been educated at the military or naval academy of the United States, etc., etc., had been granted amnesty. Immediately thereafter, each of the seceding States functioned as regular States in the Union with both State and Federal Courts in full operation.
President Lincoln had declared the freedom of the slaves as a war measure, but when the war ended, the effect of the Proclamation was ended, and so it was necessary to propose and to ratify the Thirteenth Amendment in order to insure the freedom of the slaves.
The 11 southern States, having taken their rightful and necessary place in the indestructible Union, proceeded to determine whether to ratify or reject the proposed Thirteenth Amendment.
In order for the Thirteenth Amendment to become a part of the Constitution, it was necessary that the proposed Amendment be ratified by 27 of the 36 States. Among those 27 States ratifying the Thirteenth Amendment were 10 from the South, to wit, Louisiana, Tennessee, Arkansas, South Carolina, Alabama, North Carolina, Georgia, Mississippi, Florida, and Texas.
When the 39th Congress assembled on December 5, 1865, the Senators and Representatives from the 25 northern States voted to deny seats in both Houses of Congress to anyone elected from the 11 southern States. The full complement of Senators from the 36 States of the Union was 72, and the full membership in the House was 240. Since it requires only a majority vote /4 to refuse a seat in Congress, only the 50 Senators and 182 Congressmen from the North were seated. All of the 22 Senators and 58 Representatives from the southern States were denied seats.
Joint Resolution No. 48, proposing the Fourteenth Amendment, was a matter of great concern to the Congress and to the people of the Nation. In order to have this proposed Amendment submitted to the 36 States for ratification, it was necessary that two thirds of each House concur. A count of noses showed that only 33 Senators were favorable to the measure, and 33 was a far cry from two thirds of 72 and lacked one of being two thirds of the 50 seated Senators.
While it requires only a majority of votes to refuse a seat to a Senator, it requires a two thirds majority to unseat a member once he is seated. /5
One John P. Stockton was seated on December 5, 1865, as one of the Senators from New Jersey. He was outspoken in his opposition to Joint Resolution No. 48 proposing the Fourteenth Amendment. The leadership in the Senate, not having control of two thirds of the seated Senators, voted to refuse to seat Mr. Stockton upon the ground that he had received only a plurality and not a majority of the votes of the New Jersey legislature. It was the law of New Jersey, and several other States, that a plurality vote was sufficient for election. Besides, the Senator had already been seated. Nevertheless, his seat was -refused- and the 33 favorable votes thus became the required two thirds of the 49 members of the Senate.
In the House of Representatives, it would require 122 votes to be two thirds of the 182 members seated. Only 120 voted for the proposed Amendment, but because there were 30 abstentions, it was declared to have been passed by a two thirds vote of the House.
Whether it requires two thirds of the full membership of both Houses to propose an Amendment to the Constitution or only two thirds of those seated or two thirds of those voting is a question which it would seem could only be determined by the United States Supreme Court. However, it is perhaps not so important for the reason that the Amendment is only -proposed- by Congress. It must be -ratified- by three fourths of the States in the Union before it becomes a part of the Constitution. The method of securing the passage through Congress is set out above, as it throws some light on the means used to obtain ratification by the States thereafter.
Nebraska had been admitted to the Union and so the Secretary of State, in transmitting the proposed Amendment, announced that ratification by 28 States would be needed before the Amendment would become part of the Constitution since there were at the time 37 States in the Union. A rejection by 10 States would thus defeat the proposal.
By March 17, 1867; the proposed Amendment had been ratified by 17 States and rejected by 10 with California voting to take no action thereon which was equivalent to rejection, thus the proposal was defeated.
One of the ratifying States, Oregon; had ratified by a membership wherein two legislators were subsequently held not to be duly elected, and after the contest, the duly elected members of the legislature of Oregon rejected the proposed Amendment. However, this rejection came after the Amendment was declared passed.
Despite the fact that the southern States had been functioning peacefully for two years and had been counted to secure ratification of the Thirteenth Amendment, Congress passed the Reconstruction Act [March 2, 1867], which provided for the military occupation of 10 of the 11 southern States. It excluded Tennessee from military occupation and one must suspect it was because Tennessee had ratified the Fourteenth Amendment on July 7, 1866.
The "Act" further disfranchised practically all white voters and provided that no Senator or Congressman from the occupied States could be seated in Congress until a new Constitution was adopted by each State which would be approved by Congress. The "Act" further provided that each of the 10 States was required to ratify the proposed Fourteenth Amendment and the Fourteenth Amendment must become a part of the Constitution of the United States before the military occupancy would cease and the States be allowed to have seats in Congress.
By the time the Reconstruction Act had been declared to be the law; three more States had ratified the proposed Fourteenth Amendment and two States, Louisiana and Delaware, had rejected it. Maryland then withdrew its prior ratification and rejected the proposed Fourteenth Amendment. Ohio followed suit and withdrew its prior ratification, as also did New Jersey and California, (which earlier had voted not to pass upon the proposal), now voted to reject the Amendment. Thus 16 of the 37 States had rejected the proposed Amendment.
By spurious, non-representative governments; seven of the southern States, (which had theretofore rejected the proposed Amendment under the duress of military occupation and of being denied representation in Congress), did attempt to ratify the proposed Fourteenth Amendment. The Secretary of State, (of July 20, 1868), issued his Proclamation wherein he stated that it was his duty under the law to cause Amendments to be published and certified as a part of the Constitution when he received official notice that they had been adopted pursuant to the Constitution. Thereafter his certificate contained the following language:
`And whereas neither the Act just quoted from, nor any other law, expressly or by conclusive implication., authorizes the Secretary of State to determine and decide doubtful questions as to the authenticity of the organization of State legislatures, or as to the power of any State legislature to recall a previous act or resolution of ratification of any amendment proposed to the Constitution;
`And whereas it appears from official documents on file in this Department that the amendment to the Constitution of the United States, proposed as aforesaid, has been ratified by the legislatures of the States of [naming 23, including New Jersey, Ohio, and Oregon];
`And whereas it further appears from documents on file in this Department that the amendment to the Constitution of the United States, proposed as aforesaid, has also been ratified by newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama;
`And whereas it further appears from official documents on file in this Department that the legislatures of two of the States first above enumerated, to wit, Ohio and New Jersey, have since passed resolutions respectively withdrawing the consent of each of said States to the aforesaid amendment; and whereas it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual for withdrawing the consent of the said two States, or of either of them, to the aforesaid amendment;
`And whereas the whole number of States in the United States is thirty-seven, to wit: [naming them];
`And whereas the twenty-three States first hereinbefore named, whose legislatures have ratified the said proposed amendment, and the six States next there after named, as having ratified the said proposed amendment by newly constituted and established legislative bodies, together constitute three fourths of the whole number of States in the United States;
`Now, therefore, be it known that I, WILLIAM H. SEWARD, Secretary of State of the United States, by virtue and in pursuant of the second section of the act of Congress, approved the twentieth of April, eighteen hundred and eighteen, hereinbefore cited, do hereby certify that if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid amendment are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of those States, which purport to withdraw the consent of said States from such ratification, then the aforesaid amendment had been ratified in the manner hereinbefore mentioned, and so has become valid, to all intents and purposes, as a part of the Constitution of the United States." * * * /6
Congress was not satisfied with the Proclamation as issued and on the next day passed a Concurrent Resolution wherein it was resolved:
`That said Fourteenth Article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.'
Resolution set forth in
Proclamation of Secretary of State,
(15 Stat. 709 [1868]).
See also U.S.C.A., Amends. 1 to 5, Constitution, p. 11.
Thereupon; William H. Seward, the Secretary of State (after setting forth the Concurrent Resolution of both Houses of Congress) then certified that the Amendment:
`Has become valid to all intents and purposes as a part of the Constitution of the United States.' /7
The Constitution of the United States is silent as to who should decide whether a proposed Amendment has or has not been passed according to formal provisions of Article V of the Constitution. The Supreme Court of the United States is the ultimate authority on the meaning of the Constitution and has never hesitated in a proper case to declare an `Act' of Congress "unconstitutional" - except when the `Act' purported to amend the Constitution.
In the case of Leser v. Garnett, /8 the question was before the Supreme Court as to whether or not the Nineteenth Amendment had been ratified pursuant to the Constitution. In the last paragraph of the decision the Supreme Court said:
`As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.'
The duty of the Secretary of State was ministerial, to wit, to count and determine when three fourths of the States had ratified the proposed Amendment. He could not determine that a State, once having rejected a proposed Amendment, could thereafter approve it; nor could he determine that a State, once having ratified that proposal, could thereafter reject it. The Supreme Court, and not Congress, should determine whether the Amendment process be final or would not be final, whether the first vote was for ratification or rejection.
In order to have 27 States ratify the Fourteenth Amendment, it was necessary to count those States which had first rejected and then under the duress of military occupation had ratified, and then also to count those States which initially ratified but subsequently rejected the proposal.
To leave such dishonest counting to a fractional part of Congress is dangerous in the extreme. What is to prevent any political party having control of both Houses of Congress from refusing to seat the opposition and then passing a Joint Resolution to the effect that the Constitution is amended and that it is the duty of the Administrator of the General Services Administration [now the Archivist of the United States] to proclaim the adoption? Would the Supreme Court of the United States still say the problem was political and refuse to determine whether constitutional standards had been met? [Yes - Epperly et. al. v. United States /9].
How can it be conceived in the minds of anyone that a combination of powerful States can by force of arms deny another State a right to have representation in Congress until it has ratified an Amendment which its people oppose? [And by what authority does any States (or combination thereof) claim to declare a sister State to have an invalid government?] The Fourteenth Amendment was adopted by means almost as bad as that suggested above.
"For a more detailed account of how the Fourteenth Amendment was forced upon the Nation, see Articles in 11 S.C.L.Q. 484 and 28 Tul.L.Rev. 22."
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The Reconstruction Acts
Introduction
The Fourteenth Amendment to the Constitution for the United States was questioned before the Courts of the United States in the case of Gordon Epperly et. al. v. United States /10 wherein each of those Courts ruled within un-published Opinions/Judgments that the questions raised were “political questions” to the Courts (citing Coleman v. Miller /11 and United States v. Stahl /12).
Prior to 1939, the Supreme Court for the United States had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the courts, /13 it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision of Coleman v. Miller. /14 This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a Resolution ratifying the proposed child labor Amendment to the Constitution of the effect that it had been adopted by the Kansas Senate.
Four opinions were written in the U.S. Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the Plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement with regard to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process “is ‘political’ in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point.”/15 In an opinion reported as “the opinion of the Court,” but in which it appears that only two Justices joined Chief Justice Hughs who wrote it, it was declared that the writ of mandamus was properly denied, because the question whether a reasonable time had elapsed since submission of the proposal was a nonjusticiable political question, the kinds of considerations entering into deciding being fit for Congress to evaluate, and the question of the effect of a previous rejection upon a ratification was similarly nonjusticiable, because the 1868 Fourteenth Amendment precedent of congressional determination “has been accepted.” /16 But with respect to the contention that the lieutenant governor should not have been permitted to cast the deciding vote in favor of ratification, the Court found itself evenly divided, thus accepting the judgment of the Kansas Supreme Court that the state officer had acted validly. /17 However, the unexplained decision by Chief Justice Hughes and his two concurring Justices that the issue of the lieutenant’ governor’s vote was justiciable indicates at the least that their position was in disagreement with the view of the other four Justices in the majority that all questions surrounding Constitutional Amendments are nonjusticiable. /18
However, Coleman does stand as authority for the proposition that at least some decisions with respect to the proposal and ratification of Constitutional Amendments are exclusively within the purview of Congress or the States, either because they are textually committed or because the Courts lack adequate criteria of determination to pass on them. /19 But to what extent the political question doctrine encompasses the amendment process and what the standards may be to resolve that particular issue remain elusive of answers.
We can conclude from the cases of Epperly et. al. v. United States (supra.) that the United States Supreme Court has made a determination that any constitutional questions regarding the amending of the U.S. Constitution are "political questions" for the Congress or the States to address.
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Historical Background
The historical facts relating to the ratification of the Fourteenth Amendment have been addressed by the Supreme Court for the State of Utah in the case of Dyett v. Turner; (supra.) /20 State v. Phillips; /21 and the legal brief of Judge Lander H. Perez of Louisiana as published in the Congressional Record. /22
It should be noted that the U.S. Supreme Court declared within the case of State of Texas v. White, /23 that a State cannot secede from the Union after being admitted into the Union. The Supreme Court further ruled that the southern States were States of the Union before the Civil War, the southern States were States of the Union during the Civil War and the southern States were States of the Union after the Civil War.
Your attention is also called that at the time the Civil War was declared to be at an end, the southern States were operating under proper civil governments when the present day Thirteenth Amendment was submitted to those States for ratification. /24
The Problem
For the purpose of discussion, we will concentrate on the House Joint Resolution that proposed the Fourteenth Amendment, the Reconstruction Acts of 1867 and the Proclamations of Ratification by Secretary of State, William H. Seward.
Note:
In regard to the Fourteenth Amendment; the Record of the “Congressional Globe” refers to the “Joint Resolution” proposing the Amendment as being H.J.R. 127. The copy of the “Joint Resolution” that was submitted to the States for Ratification was referred to as H.J.R. 48. Hereinafter, we will refer to the “Joint Resolution” as H.J.R. 48.
First:
Pretermitting the ineffectiveness of “H.J.R. 48;” seventeen (17) States (four (4) votes are questionable) out of the then thirty-seven (37) States of the Union rejected the proposed Fourteenth Amendment between the date of its submission to the States by the Secretary of State on June 16, 1866 and March 24, 1868 thereby further nullifying said Resolution and making it impossible for its ratification by the constitutionally required three-fourths of such States as shown by the rejections thereof by the legislatures of the following States:
Texas rejected the Fourteenth Amendment on October 27, 1866 (House Journal 1866, pgs. 577-584 - Senate Journal 1866, p. 471.).
Georgia rejected the Fourteenth Amendment on November 9, 1866 (House Journal 1866, pgs. 61-69 - Senate Journal 1866, pgs. 65-72.).
Florida rejected the Fourteenth Amendment on December 6, 1866 (House Journal 1866, pgs. 75-80, 138, 144, 149-150 - Senate Journal 1866, pgs. 101-103, 111, 114, 133.).
Alabama rejected the Fourteenth Amendment on December 7, 1866 (House Journal 1866. pgs. 208-213 - Senate Journal 1866, pgs. 182-183.).
North Carolina rejected the Fourteenth Amendment on December 14, 1866 (House Journal 1866 - 1867. pgs. 182-185 - Senate Journal 1866-67, pgs. 91-139).
Arkansas rejected the Fourteenth Amendment on December 17, 1866 (House Journal 1866, pp. 288-291 - Senate Journal 1866, p. 262.).
South Carolina rejected the Fourteenth Amendment on December 20, 1866 (House Journal 1866, p. 284 - Senate Journal 1866, p. 230.).
Kentucky rejected the Fourteenth Amendment on January 8, 1867 (House Journal 1867, pgs. 60-65 - Senate Journal 1867, pgs. 62-65.).
Virginia rejected the Fourteenth Amendment on January 9, 1867 (House Journal 1866-67, p. 108 - Senate Journal 1866-67, pgs. 101-103.).
Louisiana rejected the Fourteenth Amendment on February 9, 1867 (Joint Resolution as recorded on page 9 of the Acts of the General Assembly, Second Session, January 28, 1867) (McPherson, "Reconstruction," p. 194; "Annual Encyclopedia," p. 452.).
Delaware rejected the Fourteenth Amendment on February 7, 1867 (House Journal 1867, pgs. 223-226 - Senate Journal 1867, pgs. 169, 175 176, 208.).
Maryland rejected the Fourteenth Amendment on March 23, 1867 (House Journal 1867, pgs. 1139-1141 - Senate Journal 1867, p. 808.).
Mississippi rejected the Fourteenth Amendment on January 31, 1867 (Laws of Mississippi, 1866-1877, p. 734; House Journal 1867, pgs. 201-202 - Senate Journal 1866, p 195-196) (McPherson, "Reconstruction," p. 194.).
Ohio rescinded its Fourteenth Amendment ratification vote on January 15, 1868 (House Journal 1868, pgs. 44-51 - Senate Journal 1868, pgs. 33-39.).
New Jersey rescinded its Fourteenth Amendment ratification vote on March 24, 1868 (Minutes of the Assembly 1868, p. 743 - Senate Journal 1868, p. 356.).
California on March 3rd, 1868, the Assembly, with the Senate concurring, rejected the Fourteenth Amendment (Journal of the Assembly 1867-68, p. 601).
Oregon rejected the Fourteenth Amendment by the Senate on October 6, 1868 and by the House on October 15, 1868 proclaiming the legislature that ratified the Amendment to have been a "defacto" legislature (U.S. House of Representatives, 40th Congress, 3rd session, Mis. Doc. No 12).
There is no question that all of the southern States [which rejected the Fourteenth Amendment] had legal constituted governments; were fully recognized by the federal government and were functioning as member States of the Union at the time of their rejection.
Where a proposed Amendment to the Federal Constitution has been rejected by more than one-forth of the States, and rejections have been duly certified, a State which has rejected the proposed Amendment may not change its position, even if it might change its position while the Amendment is still before the people. /25
Second:
Several “Reconstruction Acts” were passed by Congress after the Civil War was proclaimed by the President of the United States to be at an end. /26 The “Reconstruction Acts” that will be addressed are those that were enacted on March 2, 1867, /27 June 25, 1868, /28 July 19, 1867, /29 March 30, 1870. /30 It is obvious that these “Reconstruction Acts” were enacted into law over the veto of the President for the purpose of coercing the southern States into rescinding their vote of rejection of the ratification of the Fourteenth Amendment:
Reconstruction Act of March 2, 1867: /31
“... and when said State, by a vote of its legislature elected under said constitution (state) , 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, . . .”
The Act of June 25, 1868 /32 to admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to representation in Congress at Section 1:
“That each of the States of (naming them) shall entitled and admitted to representation in Congress as a State of the Union when the legislature of such State shall have duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as the article fourteen, . . .”
The Act of March 30, 1870 /33 admitting the State of Texas to Representation in the Congress of the United States [Preamble]:
“Whereas the people of Texas has framed and adopted a constitution of State government which is republican; and whereas the legislature of Texas elected under said constitution has ratified the fourteenth and fifteenth amendments to the Constitution of the United States; and whereas the performance of these several acts in good faith is a condition precedent to the representation of the State in Congress: . . .”
From these three Acts of Congress, the questions must be asked: “By what authority did the Congress rely upon to compel a State to reverse its negative ratification vote?” And: “By what authority did the Congress rely upon to compel a State to ratify an Amendment to the Constitution for the United States?”
Third:
The Thirty-ninth Congress declared at Section 1 of the Reconstruction Act of March 2, 1867 /34 that:
“. . . That said rebel States shall be divided into military districts and made subject to the military authority of the United States . . .”
and at Section 6 of the same Act:
“. . . any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States . . .”
and at Section 10 of the Reconstruction Act of July 19, 1867: /35
“That the commander of any district named in said act (March 2, 1867) shall have power . . . to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding or exercising, or professing to hold or exercise, any civil or military office or duty in such district under any power, election, appointment or authority derived from, or granted by, or claimed under, any so-called State or the government thereof, or any municipal or other division thereof . . .”
and at Section 10 of that Act:
“That no district commander . . . or any of the officers or appointees acting under them, shall be bound in his action by any opinion of any civil officer of the United States.”
The above Sections of the Reconstruction Acts of March 2, 1867 and July 19, 1867 makes it very clear that the southern States were under military law and were without republican form of governments. The question must be asked: “By what authority did the Thirty-ninth Congress rely upon to impose military law upon those southern States after those States were declared by “Presidential Proclamation” of April 2, 1868 and “Presidential Proclamation” of August 20, 1866 that the insurrection was at an end, and that peace, order, tranquillity and civil authority existed in and throughout the whole of the United States of America?” Keep in mind that the military was originally sent into those States by “Presidential Proclamation” to suppress rebellion within those States, not by any Act of Congress.
Fourth:
As Section 1 of the Reconstruction Act of March 2, 1867, /36 declares that the southern States had no legal governments:
“Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; . . .”
the question must be asked: “When did the southern States have legal governments?” The Congress answered the question within: - "An Act to provide for the more efficient Government of the Rebel States" /37 and within the: - "Act to admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress" /38 and within the: - "Act to admit the State of Texas to Representation in the Congress of the United States" /39 wherein the Congress declared that the southern States were not to be recognized as "States" with lawful civil governments until said States ratified the Fourteenth Amendment. By the mouth of Congress; the purported votes cast for the ratification of the Fourteenth Amendment under the Reconstruction Acts were cast by unlawful governments of those southern States [military districts].
Fifth:
If the southern States had no legal governments, as declared by Congress; additional questions must be asked:
Why did the Congress submit the Resolution proposing the Thirteenth Amendment to the United States Constitution to the southern States for ratification?
Why did the Congress accept the southern States "ratification votes" on the Thirteenth Amendment?
Why did the Congress submit the Resolution proposing the Fourteenth Amendment to the southern States for ratification?
As both Houses of Congress passed Resolutions /40 declaring that the Civil War was not waged in the spirit of oppression nor for purpose of overthrowing or INTERFERING WITH THE RIGHTS OF ESTABLISHED INSTITUTIONS OF THOSE STATES, why did Congress wait until those southern States cast a "negative" ratification vote on the Fourteenth Amendment before declaring the civil governments of those States as being unlawful?
Did the southern States have lawful governments before the enactment of the "Reconstruction Acts?"
When a freely associated compact State of the united States of America is declared to have an unlawful civil government by Congress and is placed under "Military Law" - is that State a "State" as that term is used in U.S. Const., V:1:1?
When a freely associated compact State of the united States of America is placed under "Military Law" by the Congress - do those States have a Republican form of government as they are to be guaranteed under U.S. Const., IV:4:1?
Does Congress have the authority to substitute the Republican form of government of a freely associated compact State of the united States of America with another form of government for the purpose of compelling ratification of an Amendment to the Constitution for the United States?
If Congress has the "textually demonstrable commitment" and thus has the exclusive and plenary powers to declare the southern States to have unlawful civil governments - why did Congress find the need to submit the "Reconstruction Acts" to the President of the United States for his signature, a procedure that is governed by U.S. Const., I:7:2?
Sixth:
With the United States Supreme Court's Dred Scott v. Sanford, /41 ruling that a Negro had no rights under the Constitution for the United States to either obtain rights of citizenship or rights of suffrage; the "Reconstruction Acts" of 1867 fails on the following grounds:
The "Reconstruction Acts" granted the Negroes of the southern States the rights of holding public office of Legislator and thus the U.S. Congress granted the Negro population the status of "citizen" BEFORE the Fourteenth Amendment was proclaimed to be an Amendment to the United States Constitution. /42
The "Reconstruction Acts" granted the Negroes of the southern States the rights of "suffrage" BEFORE the Fifteenth Amendment was proclaimed to be an Amendment to the United States Constitution. /43
[The Fifteenth Amendment is a formal declaration by the Congress of the United States that the suffrage provisions within the Reconstruction Acts of 1867 are unconstitutional].
Seventh:
The "Reconstruction Acts" also fails on the following grounds:
The Congress of the United States granted authority to "Military Districts" of the United States to ratify Amendments to the United States Constitution in violation of U.S. Const., Article V. /44
Denied the southern States representation in Congress in violation of Paragraph Two of Article V of the Articles of Confederation. /45
Denied the people of the southern States the privilege of holding an “Office of Trust” if they were excluded under the provisions of the Fourteenth Amendment BEFORE the Fourteenth Amendment was proclaimed to be an Amendment to the United States Constitution. /46
Denied the people of the southern States the rights of "suffrage" unless they were qualified under the Third Article of the Fourteenth Amendment BEFORE the Fourteenth Amendment was proclaimed to be an Amendment to the United States Constitution. /47
The "Reconstruction Acts" fails as Congress had no Constitutional authority to create governments within a freely associated compact State of the united States of America that consisted of "Aliens." /48
Eighth:
William H. Seward, as Secretary of State, expressed doubt as to whether three-fourths of the required States had ratified the Fourteenth Amendment (as shown by his Proclamation of July 20, 1868. /49) Promptly; on July 21, 1868, a Concurrent Resolution /50 was adopted by the Senate and House of Representatives declaring that three-fourths of the several States of the Union had ratified the Fourteenth Amendment. That Concurrent Resolution; however, was not submitted to the President of the United States for his approval as required by U.S. Const., I:7:3 and it included purported ratifications by the unlawful puppet legislatures of five (5) States (Arkansas, North Carolina, Louisiana, South Carolina, and Alabama) which had previously rejected the Fourteenth Amendment. /51
This Concurrent Resolution assumed to perform the function of the Secretary of State in whom Congress (by Act of April 20, 1818) had vested the function of issuing such Proclamation declaring the ratification of Constitutional Amendments.
The Secretary of State bowed to the action of Congress and issued his Proclamation on July 28, 1868 /52 in which he stated that he was acting under the mandate of the Congressional Act of July 21, 1868:
“Now, therefore, be it known that I, William H. Seward, Secretary of State of the United States, in execution of the aforesaid act, (April 20, 1818) and of the afore-said concurrent resolution of the 21st of July, 1868, and in conformance thereto, do hereby direct the said proposed amendment (Fourteenth Amendment) to the Constitution of the United States to be published in the newspapers authorized to promulgate the laws of the United States, and I do hereby certify that the said proposed amendment has been adopted in the manner hereinbefore mentioned by the States specified in the said concurrent resolution, namely [naming them]; the States thus specified being more than three fourths of the States of the United States. . . . “
In regard to the Concurrent Resolution of July 21, 1868 - By what authority did the Congress rely upon to make a determination as to what States ratified the Fourteenth Amendment?
As the power to ratify Amendments to the Constitution for the United States is with the several States of the Union, by what authority did the Secretary of State, William H. Seward, rely upon to declare that the Concurrent Resolution of July 21, 1868 was an “Official Notice” of ratification?
In regard to the Concurrent Resolution of July 21, 1868 - By what authority did the Congress rely upon to perform the function of the Secretary of State in whom Congress (by Act of April 20, 1818) had vested the function of issuing Proclamations declaring the ratification of Constitutional Amendments?
In regard to the Concurrent Resolution of July 21, 1868 - By what authority did the Congress rely upon to declare that the Secretary of State shall issue forth the Proclamation of Ratification of July 28, 1868 /53 when the Concurrent Resolution of July 21, 1868 was never submitted to the President of the United States for his approbation as required by the U.S. Constitution?
Within the Proclamation of Ratification of July 20, 1868 /54 - U.S. Secretary of State, William H. Seward, expressed reservations as to the legitimacy of the governments of those southern States that were under the military government of the United States and what were his responsibilities in making legal determinations regarding the ratification votes of those States. The question must be asked: “Who has the authority to make legal determinations regarding the ratification of Amendments to the Constitution for the United States?”
The questions presented needs to be answered and without answers, the declared ratification of the Fourteenth Amendment must be found "ultra vires" and void "ab initio."
The federal Courts of Coleman v. United States, /55 United States v. Stahl /56 and Epperly et.al. v. United States /57 have declared that all issues pertaining to amending of the U.S. Constitution are “political questions” for Congress or the States to address. As the Congress of the United States of America on several occasions over the past 100 years -refused- to address the questions presented, the Congress has taken the position that under Article V /58 of the Constitution for the United States of America and Article X /59 of the Bill of Rights, the legislatures of the States have the "textually demonstrable constitutional commitment of the issues." It is THE PEOPLE IN A CONSTITUTIONAL CONVENTION OR THE LEGISLATURES OF THE SEVERAL STATES THAT HAVE THE AUTHORITY TO DETERMINE IF AN AMENDMENT HAS BEEN ADOPTED IN ACCORDANCE TO THE PROVISIONS OF THE CONSTITUTION.
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United States Constitution
The
Fourteenth Amendment
[FICTION OR FACT]
The validity, or should we say invalidity, of the Civil War Amendments is very important to reinstating the inalienable rights of free white Citizens in the United States of America. At every juncture where the government of the United States of America and/or the governments of the several States attempt to usurp inalienable rights, the Civil War Amendments are ultimately claimed to be the authority for such deprivations of rights.
To determine whether the Fourteenth Amendment is fiction or fact, we will proceed to dissect each Section of the Fourteenth Amendment, sentence by sentence. Please remember that the following Authorities reflects the understanding of the Founding Fathers at the time the Constitution for the United States was adopted, and although they may not be "politically" correct today, the Authorities represents the law at the time the Fourteenth Amendment was (purportedly) adopted.
FOURTEENTH AMENDMENT - SECTION ONE
We begin with Section 1 of the Fourteenth Amendment which reads:
"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."
Fourteenth Amendment, Section 1, United States Constitution
The first sentence of Section One provides:
"All persons born or naturalized in the United States, ..."
Fourteenth Amendment, Section One
Notice there is no relation to race and there is no definition of person, other than the "p" in person is not capitalized, indicating the word would not mean a "Natural Person," but a "juristic person" or "artificial person." As the courts have said, the "due process" and "equal protection" Clauses of the Fourteenth Amendment apply to Corporations which are juristic (artificial) persons.
Compare this with Article II, Section 1, Clause 4 of the Constitution for the United States of America:
"No Person except a natural born Citizen, ..."
Notice the "N" in "no", the "P" in "Person" and the "C" in "Citizen." All of the capitalization is on the object to be distinguished as to who is a Natural Person. This is further clarified in Amy v. Smith: /60
"Free negroes and mulattoes are, almost everywhere, considered and treated as a degraded race of people; insomuch so, that, under the constitution and laws of the United States, they can not become citizens of the United States."
Amy v. Smith, 1 Litt. Ky. R. 334.
In light of this, no person would be considered as a United States Citizen or a citizen of the United States; as the Constitution was framed to incorporate the common law, in opposition to international law.
common law - one race governs;
international law - all races govern.
The capitalization of the words "Person" and "Citizen" could mean only one thing, the denoting of only those of one race in compliance with the common law.
"The American colonies brought with them the common, and not the civil law; and each state at the revolution, adopted either more or less of it, and not one of them exploded the principle, that place of birth conferred citizenship."
Amy v. Smith, 1 Litt. Ky. R. 337-38.
Under the common-law (and under American Constitutions), "Citizenship" was dependent upon right of inheritance which can only be passed by lineage (race). This is in accord with the Preamble (Constitution for the United States of America), which states that the Constitution was adopted for the protection of "We The People" and "their posterity," - posterity - being a racial term.
The "p" in "persons" of the Fourteenth Amendment is not referring to those referred to in Article IV, Section 2, Constitution for the United States of America.
"... and subject to the jurisdiction thereof, ..."
Notice the word: "subject." Those that were not of the white race (when the Fourteenth Amendment was proposed) were natural born "subjects.”
"Blacks, whether born or in bondage, if born under the jurisdiction and allegiance of the United States, are natives, and not aliens. They are what the common law terms natural-born subjects ... The better opinion, I should think, was, that Negroes or other slaves, born within and under the allegiance of the United States, are natural-born subjects, but not citizens. Citizens, under our constitution and laws, mean free inhabitants, born within the United States, or naturalized under the law of Congress ..."
Commentaries of American Law, James Kent,
7th Ed., Vol. II, at 275-78.
Thus, we find the meaning and application of the terms: "subject to the jurisdiction."
A United States "Citizen" (that is a common-law Citizen in one of the several States at the adoption of the Constitution for the United States of America) was considered "within" the jurisdiction of the United States. "Citizens" were never subject to the jurisdiction of the United States. Instead, the United States was subject to the jurisdiction of the Citizen, that is, under the common law. [See the tenth Article in Amendment, Constitution for the United States of America].
According to the common law principle (upon which our Constitution was founded), only the race (family) of people forming the sovereignty to adopt the Constitution (We the People) are considered "Citizens." All others born inside the Country and owing allegiance to "We the People" are natural born "Subjects." Under principles of International Law, that is, inter-racial law (See definition in Webster's Dictionary, [1828]), these "Subjects" (who, by special privilege, are licensed to become something or do something normally illegal under the common-law), are said to be "citizens" and "persons."
"But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the government, and the rights of the citizens under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others."
Dred Scott v. Sandford, (1856-1857)
19 How. (60 U.S.) 393,
452, 15 L.Ed. 691.
It is clear that the Fourteenth Amendment could not be referring to the "Citizens" that are known of the white race, but must be referring to those artificial "citizens" of the non-white races
"... are citizens of the United States and of the State wherein they reside ..."
Fourteenth Amendment, Section 1.
This sentence is interesting, as it not only declares that these "persons" (small "p") are "citizens" (small "c") of the United States, but also of the State they choose to reside in:
"No white person born within the limits of the United States, ... or born without those limits, and subsequently naturalized under their laws, owes the status of citizenship to the recent Amendments to the Federal Constitution."
Van Valkenburg v. Brown, (1872) 43 Cal 43, 47.
"Prior to the adoption of this amendment, strictly speaking, there were no citizens of the United States, but only some one of them. Congress had the power 'to establish an uniform rule of naturalization,' but not the power to make a naturalized alien a citizen of any state. But the states generally provided that such persons might, on sufficient residence therein, become citizens thereof, and then the courts held, ab convenienti, rather than otherwise, that they became ipso facto citizens of the United States."
Sharon v. Hill, (1885) 26 F 337, 343.
Notice the words: "some one of them." This refers to citizenship of "some one" of the States. The national government had no power to make citizens of its own and force them upon the States. The States could make anyone they chose to be a citizen of their State, but only those of the white race could be recognized as national citizens under the Preamble to the Constitution for the United States of America and be treated as "Citizens" in any State they entered.
Thus, only white State citizens held the privileges and immunities known to Article IV, Section 2, among the several States, and no State could confer that Constitutional protection on any other race. In consequence thereof, the "also" could not authorize a "non-white" to be an "Officer" of the United States government. These elements were what was referred to as "national citizenship" (prior to the Fourteenth Amendment) to avoid one State (or the States collectively at the national level) from interfering in another State's sovereignty, or the sovereignty "We the People".
The Fourteenth Amendment attempts to reverse this natural common-law order of things by making State citizenship dependent upon national citizenship.
"... By the original constitution, citizenship in the United States was a consequence of citizenship in a state. By this clause [Am 14, Sec 1] this order of things is reversed. Citizenship in the United States is defined; it is made independent of citizenship in a state, and citizenship in a state is a result of citizenship in the United States. So that a person born or naturalized in the United States, and subject to its jurisdiction, is, without reference to state constitutions or laws, entitled to all privileges and immunities secured by the Constitution of the United States to citizens thereof."
U.S. v. Hall, (1871) 26 Fed. Case 79, 81.
"Prior to the adoption of this amendment, strictly speaking, there were no citizens of the United States, but only some one of them. Congress had the power "to establish an uniform rule of naturalization," but not the power to make a naturalized alien a citizen of any state. But the states generally p