Why is the so-called 14th Amendment unconstitutional?
The method of amending the Constitution for the United States of America is explicitly stated in Article V of that original document. No other method can lawfully be used to accomplish this purpose. The relevant portions of Article V, which applied to the procedure that should have been followed with respect to the so-called 14th Amendment, are:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, … which, … shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified … by Conventions in three fourths of the several States, as the Mode of Ratification … proposed by the Congress."
As you can see, once an Amendment, which has been properly proposed, is sent to the States for ratification, Congress has absolutely no lawful role in the ratification process. Note this fact.
So what actually occurred during the alleged proposal and ratification procedures of the so-called 14th Amendment? The following is a brief summary of what actually happened during June 1865 through July 1868 with respect to the alleged 14th Amendment and related matters.
By June 30, 1865, the Confederate States were all restored by presidential proclamation "to their proper position as States in an indissoluble Union, and particularly, all Citizens thereof had been granted amnesty." (13 Stat. 768 (1865) 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 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 so-called 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 on it.
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.
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.
The alleged proposed 14th Amendment was sent to the Legislatures of the 37 States in the Union for ratification with an announcement by the Secretary of State, William H. Seward, that 28 States would be necessary for ratification. 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 States, with California voting to take no action, which is equivalent to a rejection. Thus, the proposed amendment was defeated. Secretary of State Seward reported the defeat of the proposed 14th Amendment. Nebraska (the 37th State) was added to the Union on March 1, 1867.
Despite the fact that the southern States had helped ratify the Thirteenth Amendment, Congress rejected Seward's report and passed the Reconstruction Act, which provided for 5 military occupation zones of 10 of the 11 southern States. Tennessee was obviously excluded from military occupation because it had voted to ratify the 14th Amendment on July 7, 1866. The Act further disenfranchised practically all white voters in the 10 militarized States, and required new State Constitutions, declared that Senators and Representatives of the occupied States could not be seated in Congress, the 10 States must ratify the proposed 14th Amendment, it must be ratified and become part of the Constitution before the military occupation would end and these States would be allowed to rejoin the Union. All of this was done at the point of a bayonet and was clearly unconstitutional.
Eventually, 7 of the 10 southern States reluctantly ratified the proposed 14th Amendment. But by that time, two more States had rejected the proposed Amendment, Maryland, New Jersey, and Ohio had changed their vote to reject the proposed Amendment. Further, it was determined that the ratification vote in Oregon was accomplished unlawfully and the revote resulted in a rejection.
When all of the votes were counted, there were still not the required 28 ratification votes. On July 20, 1868, Secretary of State Seward wrote a very lengthy certificate that spelled out in great detail what had taken place and again declared that the proposed 14th Amendment had been defeated.
Congress, not satisfied with Seward's proclamation as issued, declared that the States that had originally ratified the Amendment and those that had later ratified it would be counted together. Thus, the next day the Congress passed a concurrent resolution that resolved that the so-called 14th Amendment was part of the Constitution for the United States of America and instructed Secretary of State Seward to duly promulgate it as such. On July 28, 1868, Secretary of State Seward reluctantly certified that the Amendment "has become valid to all intents and purposes as a part of the Constitution of the United States". Remember, Congress has no authority to do any of this.
Without question, the facts presented herein above prove that the so-called 14th Amendment was neither lawfully proposed in the U.S. Senate nor ratified by three fourths of the Legislatures of the States in 1868 as requited by Article V of the Constitution for the United States of America.
"The Constitution strikes with nullity that which does violence to its provisions."
For more information on this subject, read the Article titled "So-called 14th Amendment not lawfully adopted or ratified!", that was printed in the Times News on Saturday, May 26, 2012.