I try to keep these posts in holding with that. Not to talk down to anybody or dumb things down so more people can understand them but to weed out all of the extraneous details and get to the basic facts. Let’s face it, we are all busy and have things to do in our lives. Most people reading something on the internet are doing it with the morning’s cup of coffee in hand and looking for something to think about. So in keeping with that idea as a target I try to hold my posts to being a somewhat light hearted, person to person, here we are chugging our liquid ambition while thinking a bit about Political Philosophy.
Last week’s post included the following statement regarding the Fourteenth Amendment. “Which brings us to the next of the unconstitutional amendments, the Fourteenth. And you know what? I’m going to skip it for now. It’s so bad from top to bottom that it deserves a posting of its own. People have written entire books on the subject.” I wrote this in the hopes that I would write something more complete on it this week.
While doing my research this morning I ran across several articles that cover the subject so completely that for a moment I thought the things that I would have to add to them were so few that it would be pointless for me to do so. Well, that’s the thing. Most of the objects of my studies are very long and detailed. I try to write my posts so that they are rather simple and direct, being focused on the big picture. As it turns out, just by focusing on what the Constitution actually says, which is what I do, I have something to write about after all.
As my subtitle suggests, the Fourteenth Amendment is the most horrible case of political corruption and tyranny ever accomplished in the history of the United States. Several times in considering what I would write here my blood reached the boiling point to the degree that I broke out in full sailor language.
If you are interested in the painstaking details of the history of the Fourteenth I invite you to check out these sources of information:
1) A Treatise, authored by Judge Lander H. Perez, Louisiana. This is an actual case where an attempt was made to nullify the Fourteenth Amendment on the basis that it was not legally ratified. If you love to read legal cases (yawn) then this is for you.
2) Senate Joint Resolution No. 1, withdrawing consent to proposed 14th Amendment. This link is a timeline for New Jersey’s process for ratifying the Fourteenth. It starts with it being accepted. When the corruption in the federal government became obvious the New Jersey legislature withdrew their acceptance in a joint resolution. The governor, Marcus L. Ward, vetoed the withdrawal. The legislature, both houses, overrode the veto. This is where it stood as of March 24, 1868, until one hundred thirty four years later, January 24th 2002, the legislature of New Jersey flipped and over turned their decision.
The reasons why New Jersey withdrew their support of the Amendment are listed in this .pdf from their website. It’s a pretty scathing review of the actions of the Amendment and the federal government at the time. Never have seen worse.
3) The Unconstitutionality of the 14th Amendment. This is a rather detailed accounting of events at the time surrounding the adoption of the Fourteenth Amendment. It includes where the documents can be found on all of the States who refused the Fourteenth, the presidential veto of the act and the measures that were taken to illegally force the Southern States into accepting the Amendment. It relies heavily on the findings of Judge L. H. Perez.
There is at the end of the above article the main three points, as follows: “A) New Jersey was disenfranchised in the Senate by having its lawfully elected Senator accepted, and then rejected, and without a 2/3rds vote; B) Oregon’s faulty ratification vote with unlawful state legislators being allowed to cast votes; and the lawfully constituted state legislature then rejecting the Fourteenth, but too late. C) Non-republican [Reconstruction] governments of the southern States imposed by military force and fiat, cannot ratify anything. Either the Fourteenth is legal and the anti-slavery amendment is not, or the anti-slavery amendment is legal and the Fourteenth is not.” And it fully supports all three of these with enough blood and guts details to satisfy most rational arguments. The only objection I would have is that under the Tenth Amendment both the Thirteenth and Fourteenth are unconstitutional.
What’s more it provides a chain of evidence that in the lack of the valid ratification process, President Andrew Johnson, Signed by William H. Seward, Secretary of State, an executive order declared the Amendment as valid. So the Fourteenth Amendment is really not an amendment. It’s an executive order.
Alright then. Those are the other people’s arguments that I have found compelling in constructing my own. My own arguments tend to rely on them somewhat, as long as they are in agreement with what the Constitution actually says. One thing that I always feel compelled to point out is that it doesn’t matter what other people’s opinions are regarding the Constitution. Other people’s opinions are not the supreme law of the land. The Constitution is the supreme law of the land. What it says about itself is far more important than someone’s opinion of it. Even the Supreme Court’s.
So from the Constitution we have Article One, Section Three which says; “The Senate of the United States shall be composed of two Senators from each State.” If a State is a State then within the federal government they have to have two senators to represent them. If each State doesn’t have two senators then they are not a state. If they are not a State they can’t be counted as a vote for ratification of a constitutional amendment.
It is a well known historical fact that the Senate unlawfully removed twenty-eight senators from Congress in order to change the balance of votes towards the acceptance of the Fourteenth Amendment. From the New Jersey resolution: “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.”
Which brings us back to the United States Constitution, Article Five, which says; “…and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” So, if for example Mississippi’s senators were given the boot from the Senate and Mississippi did not agree to it, that would by definition be in violation of Article Five of the Constitution, especially because we are talking about amendments which is want Article Five is all about.
Another important point of today’s subject is the ex post facto law. Ex post facto is from Latin which means “after the fact.” You walk across the road at a specific place. There is no law against it. Someone sees you cross the road at that place and thinks people should not be allowed to cross the road there. They go to Congress and shout, most likely incoherently that, “there ought to be a law!!!” Congress passes a law that says anybody who ever crossed the road at that specific place, past, present or future, is guilty of a crime. You are then put in jail for crossing the road at that specific place, when it was not illegal to do so at the time you did it.
There is no constitutional law that forbids a State from seceding from the Union. There was no constitutional law forbidding a State from seceding from the Union in 1861. In fact, while I have many disagreements with the Supreme Court, especially Salmon P. Chase, there is this one where he seems to have by some cosmic accident gotten it right. “If you bring these leaders to trial, it will condemn the North, for by the Constitution, secession is not rebellion. His [Jefferson Davis] capture was a mistake. His trial will be a greater one. We cannot convict him of treason."—Salmon P. Chase, Chief Justice of the US Supreme Court, 1867.
So there was no law that said the Confederate States couldn’t cross the road at that time. Rightly or wrongly they crossed the road. Several years later Congress said “there ought to be a law!!!” Then along came the Fourteenth Amendment, Sections Two, Three and Four, which include punishments for the States that had seceded…
“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.”
It is very obvious to me that the consideration of ex post facto, as well as the rest of the Constitution with regards to the proper procedures necessary to the passage of an amendment, was the furthest thing from the federal government’s collective minds at the time.
And with that thought I have just noticed my word count for this article has surpassed the two thousand mark which is where I try to make my posts come as close as possible to. We can see that there were some problems in passage as well as violations of other parts of the Constitution in getting the Fourteenth through. Yet I still haven’t gotten close to the part of it that really horrifies me as a limited government kind of guy; Section One.
I’ll just have to save that for next week’s post.
The Amendments: Part One
The Amendments: Part Two
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