The unconstitutional 14th Amendment – Part 3 of 4
Spreading Lincolnian democracy
President Andrew Johnson ended his veto message regarding the Reconstruction Act on July 19, 1867 as follows:
"…[I]n the execution of these laws the constitutional obligation upon the President remains, but the powers to exercise that constitutional duty is effectually taken away. The military commander is, as to the power of appointment, made to take the place of its President, and the General of the Army the place of the Senate; and any attempt on the part of the President to assert his own constitutional power may, under pretence of law, be met by official insubordination. It is to be feared that these military officers, looking to the authority given by these laws rather than to the letter of the Constitution, will recognize no authority but the commander of the district and the General of the army.
"If there were no other objection than this to this proposed legislation, it would be sufficient."
No one can contend that the Reconstruction Acts were ever upheld as being valid and constitutional.
They were brought into question, but the Courts either avoided decision or were prevented by Congress from finally adjudicating upon their constitutionality.
In Mississippi v. President Andrew Johnson, (4 Wall. 475-502), where the suit sought to enjoin the President of the United States from enforcing provisions of the Reconstruction Acts, the U. S. Supreme Court held that the President cannot be enjoined because for the Judicial Department of the government to attempt to enforce the performance of the duties by the President might be justly characterized, in the language of Chief Justice Marshall, as "an absurd and excessive extravagance." The Court further said that if the Court granted the injunction against enforcement of the Reconstruction Acts, and if the President refused obedience, it is needless to observe that the Court is without power to enforce its process.
And now to the Court
In a joint action, the states of Georgia and Mississippi brought suit against the President and the Secretary of War, (6 Wall. 50-78, 154 U.S. 554).
The Court said that:
"The bill then sets forth that the intent and design of the acts of Congress, as apparent on their face and by their terms, are to overthrow and annul this existing state government, and to erect another and different government in its place, unauthorized by the Constitution and in defiance of its guaranties; and that, in furtherance of this intent and design, the defendants, the Secretary of War, the General of the Army, and Major-General Pope, acting under orders of the President, are about setting in motion a portion of the army to take military possession of the state, and threaten to subvert her government and subject her people to military rule; that the state is holding inadequate means to resist the power and force of the Executive Department of the United States; and she therefore insists that such protection can, and ought to be afforded by a decree or order of this court in the premises."
The applications for injunction by these two states to prohibit the Executive Department from carrying out the provisions of the Reconstruction Acts directed to the overthrow of their government, including the dissolution of their state legislatures, were denied on the grounds that the organization of the government into three great departments, the executive, legislative and judicial, carried limitations of the powers of each by the Constitution. This case went the same way as the previous case of Mississippi against President Johnson and was dismissed without adjudication upon the constitutionality of the Reconstruction Acts.
In another case, ex parte William H. McCardle (7 Wall. 506-515), a petition for the writ of habeas corpus for unlawful restraint by military force of a citizen not in the military service of the United States was before the United States Supreme Court. After the case was argued and taken under advisement, and before conference in regard to the decision to be made, Congress passed an emergency Act March 27, 1868, 15 Stat. at L. 44, vetoed by the President and re-passed over his veto, repealing the jurisdiction of the U. S. Supreme Court in such case. Accordingly, the Supreme Court dismissed the appeal without passing upon the constitutionality of the Reconstruction Acts, under which the non-military citizen was held by the military without benefit of writ of habeas corpus in violation of Section 9, Article I of the U.S. Constitution which prohibits the suspension of the writ of habeas corpus.
That Act of Congress placed the Reconstruction acts beyond judicial recourse and avoided tests of constitutionality.
It is recorded that one of the Supreme Court Justices, Grier, protested against the action of the Court as follows:
"This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for legislative interposition to supersede our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say... I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted."
The ten States were organized into military districts under the unconstitutional "Reconstruction Acts," their lawfully constituted legislatures illegally were removed by "military force," and they were replaced by rump, so-called legislatures, seven of which carried out military orders and pretended to ratify the 14th Amendment, as follows:
Arkansas on April 6, 1868;38
North Carolina on July 2, 1868;39
Florida on June 9, 1868;40
Louisiana on July 9, 1868;41
South Carolina on July 9, 1868;42
Alabama on July 13, 1868;43
Georgia on July 21, 1868.44
6. Of the above seven States whose legislatures were removed and replaced by rump, so-called legislatures, six legislatures of the States of Louisiana, Arkansas, South Carolina, Alabama, North Carolina and Georgia had ratified the 13th Amendment, as shown by the Secretary of State’s Proclamation of December 18, 1865, without which six States’ ratifications, the 13th Amendment could not and would not have been ratified because said six States made a total of 27 out of 36 States or exactly three-fourths of the number required by Article V of the Constitution for ratification.
Furthermore, governments of the States of Louisiana and Arkansas had been reestablished under a proclamation issued by President Abraham Lincoln December 8, 1863.45
The government of North Carolina had been reestablished under a proclamation issued by President Andrew Johnson dated May 29, 1865.46
The government of Georgia had been reestablished under a proclamation issued by President Andrew Johnson dated June 17, 1865.47
The government of Alabama had been reestablished under a proclamation issued by President Andrew Johnson dated June 21, 1865.48
The government of South Carolina had been reestablished under a proclamation issued by President Andrew Johnson dated June 30, 1865.49
These three "Reconstruction Acts"50 under which the above State legislatures were illegally removed and unlawful rump or puppet so-called legislatures substituted in a mock effort to ratify the 14th Amendment were unconstitutional, null and void, ab initio, and all acts done thereunder were also null and void, including the purported ratification of the l4th Amendment by said six Southern puppet State legislatures of Arkansas, North Carolina, Louisiana, South Carolina, Alabama and Georgia.
Those Reconstruction Acts of Congress and all acts and things unlawfully done thereunder were in violation of Article IV, Section 4 of the United States Constitution, which required the United States to guarantee every State in the Union a republican form of government. They violated Article I, Section 3, and Article V of the Constitution, which entitled every State in the Union to two Senators, because under provisions of these unlawful acts of Congress, ten States were deprived of having two Senators, or equal suffrage in the Senate.
7. The Secretary of State expressed doubt as to whether three-fourths of the required states had ratified the 14th Amendment, as shown by his proclamation of July 20, 1868.51 Promptly on July 21, 1868, a Joint Resolution52 was adopted by the Senate and House of Representatives declaring that three-fourths of the several States of the Union had ratified the 14th Amendment. That resolution, however, included purported ratifications by the unlawful puppet legislatures of five States, Arkansas, North Carolina, Louisiana, South Carolina and Alabama, which had previously rejected the 14th Amendment by action of their lawfully constituted legislatures, as above shown. This Joint 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 of July 28, 1868,53 in which he stated that he was as acting under authority of the Act of April 20, 1818, but pursuant to said Resolution of July 21, 1868. He listed three-fourths or so of the then 37 states as having ratified the 14th Amendment, including the purported ratification of the unlawful puppet legislatures of the States of Arkansas, North Carolina, Louisiana, South Carolina and Alabama. Without said six unlawful purported ratifications there would have been only 26 states left to ratify out of 37 when a minimum of 28 states was required for ratification by three-fourths of the States of the Union.
The Joint Resolution of Congress and the resulting proclamation by the Secretary of State also included purported ratifications by the States of Ohio and New Jersey, although the proclamation recognized the fact that the legislatures of said states, several months previously, had withdrawn their ratifications and effectively rejected the 14th Amendment in January, 1868, and April, 1868.
Therefore, deducting these two states from the purported ratifications of the 14th Amendment, only 23 State ratifications at most could be claimed; whereas the ratification of 28 States, or three-fourths of 37 States in the Union, were required to ratify the 14th Amendment.
From all of the above documented historic facts, it is inescapable that the 14th Amendment never was validly adopted as an article of the Constitution, that it has no legal effect, and it should be declared by the Courts to be unconstitutional, and therefore null, void and of no effect.
The Constitution strikes the 14th Amendment with nullity. The defenders of the 14th Amendment contend that the U.S. Supreme Court has finally decided upon its validity. Such is not the case.
38. McPherson, Reconstruction, p. 53.
39. House Journal 1868, p. 15, Senate Journal 1868, p. 15.
40. House Journal 1868, p. 9, Senate Journal 1868, p. 8.
41. Senate Journal 1868, p. 21.
42. House Journal 1868, p. 50, Senate Journal 1868, p. 12.
43. Senate Journal, 40th Congress. 2nd Session. p. 725.
44. House Journal, 1868, p. 50.
45. Vol. I, pp. 288-306; Vol. II, pp. 429-448 – “The Federal and State Constitutions,” etc., compiled under Act of Congress on June 30, 1906, Francis Thorpe, Washington Government Printing Office (1906).
46. Same, Thorpe, Vol. V, pp. 2799-2800.
47. Same, Thorpe, Vol. II, pp. 809-822.
48. Same, Thorpe, Vol. I, pp. 116-132.
49. Same, Thorpe, Vol. VI, pp. 3269-3281.
50. 14 Stat. p. 42B, etc. 15 Stat. p. l4, etc.
51. 15 Stat. p. 706.
52. House Journal, 40th Congress, 2nd. Session. p. 1126 etc.
53. 16 Stat. p. 708.