The dubious origin of the fourteenth amendment


FORCED RATIFICATION REQUIRES REEXAMINATION OF PURPORTED ADOPTION OF THE AMENDMENT



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FORCED RATIFICATION REQUIRES REEXAMINATION OF PURPORTED ADOPTION OF THE AMENDMENT

The fact that ratification in the Southern States came finally, as a coerced result, through the legislatures of the puppet governments created by the Reconstruction Act, after rejection of the amendment by the prior State Legislatures, can pose a very serious question in relation to one of the issues upon which the Supreme Court invited discussion on the reargument. This of course refers to the request by the Court for discussion of what understanding or contemplation of the scope of the amendment was had by the state legislatures which ratified it.62

Such an inquiry may be proper as to a legislature which, fee to ratify or reject, determined of its own volition to ratify. But to give effect, as against the Southern States now, to whatever extreme and sweeping notions of the broad scope of the Fourteenth Amendment may have been expressed by the puppet legislators, who used their power under the Reconstruction Act to vote in favor of ratification States really opposed to ratification, would be a perversion of history and a contradiction of plain fact.63

But the attack upon the legality of the coerced ratifications of the Fourteenth Amendment by the Southern States, under the compulsions of the Reconstruction Act, goes beyond the question of whether the puppet governments, which went through the form of voting these enforced ratifications, were authorized to authentically express the “contemplation” or “understanding” of the Southern States as to the scope and operative force of the amendment. The question arises—upon an analysis of the provisions of Article V and upon a study of the history of the evolvement of this Article in the Federal Convention of 1787—whether these coerced ratifications should be decreed null and void, as the product of an usurpative incursion by Congress into an area—the ratification—or—rejection process—from which it is clearly excluded by Article V.

To permit Congress to have a decisive and controlling part in the final decision on ratification of a constitutional amendment proposal, after Hamilton had secured the reluctant assent of the Convention to letting Congress have merely a power to initiate amendment proposals, on his solemn representation that “the people would finally decide,”64 would constitute a clear disregard of the plain intent of the Founding Fathers concerning the meaning and effect of Article V. Beyond this, Congressional coercion, intruding into and upon the ratification process, amounts to a gross breach of faith with the obvious understanding had between Madison and Hamilton when, following Hamilton’s frank avowal that the power of final decision in an amendment proposal should be vested in “the people,” these two great statesmen cooperated in setting up the amendment procedure whereby, on an amendment proposal submitted by Congress to the legislatures of the several states, the people of each state, speaking through its legislature, have the “final decision” on ratification or rejection.65

One who says that such questions are political and not justiciable, must necessarily mean that a political body, actuated by political motives and effectuating political objectives, should have and exercise a final power, not judicially reviewable, to change the plain meaning of a constitutional provision, and to disregard its obvious intent and purpose, as demonstrated by the history of its evolvement.66

The adversary or the skeptic might assert that, after a lapse of more than eighty years, it is too late to question the constitutionality or validity of the coerced ratifications of the Fourteenth Amendment even on substantial and serious grounds. The ready answer is that there is no statute of limitations that will cure a gross violation of the amendment procedure laid down by Article V of the Constitution.

Precedents are not wanting for the successful assertion of constitutional rights which have been flouted or ignored over long periods of time. In Erie Railroad Company v. Tompkins,67 the Court, on a constitutional point, reversed its jurisprudence of more than ninety years standing, dating back to Swift v. Tyson.68 This was done on the expression of the view that a doctrine involving statutory construction would not be re-examined and upset after that lapse of time, but that the true doctrine on the constitutional point, once resolved, must be given effect regardless of lapse of time.69

This principle should apply here. If the coerced and enforced ratifications of the Fourteenth Amendment by the Southern States in 1868, compelled by Congressional duress offending against the Constitution itself, constitute an infraction of the amendment procedure ordained by Article V of the Constitution, these enforced ratifications are just as violative of the provisions of Article V in 1953 as they were in 1868.

Also worthy of note in this connection is the holding70 in 1895 that the levying of an income tax by the Federal Government, without apportioning that tax among the States as a direct tax, violated the taxing-power provisions of the Constitution of the United States—although, thirty years prior to this judicial vindication of what the majority of the Court deemed to be fundamental and true Constitutional provisions, the Federal Government had levied and collected income taxes for several years on a large scale, and had financed a major and successful war of vital consequences to a very considerable extent out of revenues so obtained.



In recent case71 terminating the exclusion of Negroes from restaurants in the District of Columbia, the Court found still operative, and ordered enforced, a statutory enactment dating back to the early 1870’s, which had lain dormant during practically the whole period of time since its enactment, and which had been variously regarded by lower courts in the case as having been repealed by codification or implication in 1877 or in 1901.72 Upon a demonstration now that Article V of the Constitution was violated and flouted by the 1868 coerced ratifications of the Fourteenth Amendment, the true rule for this amendment process, ordained by Article V, is entitled to receive from the judiciary the same respectful consideration and orderly enforcement as was recently accorded the revivified 1873 enactment of the short-lived local legislature of the District of Columbia.

*/*\ This article is a revision and amplification of the material contained in an address delivered by the author at a meeting of the New Orleans Bar Association on September 29, 1953, and published in Louisiana Bar Association Journal, vol. 1, no. 2. The author desires to express his appreciation of the substantial assistance of Mr. Walter J. Wadlington III in the work of revising and amplifying the original material for this publication.

t/t\ Member of the Louisiana Bar, New Orleans; President, Louisiana State Bar Association, 1951—1952; Professor of Civil Law, Tulane University; Member, Board of Advisory Editors, Tulane Law Review.

1Barrows v. Jackson, 346 U.S. 249 (1953); McLaurin V. Oklahoma State Regents, 339 U.S. 1 (1950); Swentt v. Painter, 339 U.S. 629 (1950); Shelly v. kraemer, 334 U.S. 1 (1948); Sipuel v. Board of Regents, 332 U.S. 631 (1948); Fisher v. Llurat, 333 U.S. 147 (1948); Missouri ex. Rel. Gnines v. Canada, 305 U.S. 337 (1938); see also cases of substantially similar import involving carriers in interstate commerce, Henderson v. United States, 339 U.S. 816 (1950); Morgan v. Virginia, 328 U.S. 373; Mitchell v. United States, 313 U.S. 80 (1941); see also cases predicated upon the Fifteenth Amendment, Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944).

2Brown v. Board of Education of Topeka, Briggs v. Elliot, Davis v. County School Board, Bolling v. Sharpe, Gebhart v. Belton, 345 U.S. 972 (1953).

3Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849).

4345 U.S. 972 (1953).

5“1. What evidence is there that the Congress which submitted and the State Legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?

“2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment

“(a) that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or

“(b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force?” 345 U.S. 972 (1953).



6“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, or by Conventions of three fourths thereof, as the one of 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.”

7It is a far cry from the delegated power of determining whether ratification shall be considered by State Legislatures or by State Conventions, to the unmentioned and undelegated power, arrogated unto itself by Congress in 1867, infra p. 31 ff., of commanding sovereign states to ratify an amendment proposal hitherto rejected by them, under the penalty otherwise of continuing denial of all rights of self-government and continuing subjection to military rule. In thus attempting to coerce state action in favor of ratification after the proposal had been submitted by Congress to the state legislatures, Congress arrogated to itself a primary and paramount role in that part of the amending process wherein the Constitution has allocated to Congress no role at all.

8See Thirteenth Resolution of the Virginia Plan, presented by Randolph. 5 Elliot’s Debates 128.

9Id. at 182.

105 id. at 381.

115 id. at 531.

12There is an impressive and significant ideology consonance between the judicial recognition that ratification or rejection of an amendment proposal, by state legislatures or conventions, is “a decisive expression of the people’s will,” Dillon v. Gloss, 256 U.S. 368, 374 (1921), or a voicing of “the will of the people,” Hawke v. Smith, 253 U.S. 221, 226-227 (1920), and this concept of Hamilton that permitting Congress to initiate an amendment proposal would leave to the people the power of final decision on ratification or rejection.

13It is interesting to note that Article V in its final form is quite similar to Article XVI in the Plan of a Federal Constitution submitted by Charles Pinckney early in the sessions of the Convention. 5 Elliot’s Debates 128, 132. However, Pinckney’s plan would have permitted the adoption of an amendment through ratification by the legislatures of two-thirds of the States, whereas the Convention ultimately fixed a more stringent ratification standard.

It is most significant that the Convention had before it Pinckney’s plan for amendment proposals by Congress, and action on ratification thereof by the state legislatures, when Hamilton persuaded the delegates to permit Congress to initiate amendment proposals on this argument that “the people would finally decide in the case.” 5id. At 531.



145 Elliot’s Debates 531, 532.

155 id. at 531.

165 id. at 531, 532.

175 id.at 551.

18The events of 1867 and 1868 confirmed the justification for Mason’s distrust of Congress respecting the amendment procedure. Indeed, those events went even further than Mason’s apprehensions. He was fearful that Congress, given a role in the amendment proposal process, would abuse that role by obstructive practices. In 1867 and 1868 Congress went entirely beyond its constitutional role as a proposer of amendments, and usurped the power to control the action of certain States in the ratification process—an area in which Congress has no constitutional function at all.

195 Elliot’s Debates 552.

2014 Stat. 358 (1866).

21Cong. Globe, 39th Cong., 1st Sess. 3042 (1866).

22Id. at 3149.

23“Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of both Houses concurring) that the following article be proposed to the legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said legislatures, shall be valid as part of the Constitution.”

24U.S. Const. Art.. I, § 5.

25Article V states that “not State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Article I, § 2 provides that “each State shall have at least one Representative...”



26Flack, The Adoption of the Fourteenth Amendment 204 (1908).

27These legislative rejections of this amendment proposal in these ten States were in some instances by a unanimous vote and all other instances by a vote by little short of unanimity. See Flack, op. cit. supra note 26, at 191-204.

28William Kernan Dart, The Louisiana Judicial System, in 1 White and Dart, La. Digest Ann. 50-51 (1917).

291867 Journal of the Louisiana House of Representatives, p. 24.

3014 Stat. 428 (1867).

31The Reconstruction Act, as supplemented by later legislation, a particularly Act of July 19, 1867, 15 Stat. 14, established a system of registration before Boards set up under military auspices, as a predicate for qualifying as voters under the proposed new governments being imposed upon the Southern States. This legislation gave the Registrars powers at least as absolute and arbitrary as those conferred upon such officials by the Boswell Amendment being Amendment NO. 55 to Section 181 of the Constitution of Alabama. In the recent judicial annulment of the Boswell Amendment, as violative of the Fourteenth and Fifteenth Amendments to the constitution of the United States, great stress was laid upon the arbitrary powers which it conferred upon Boards of Registrars in the registration of voters. See Davis v. Schnell, 81 F. Supp. (S.D. Ala.) 872, 877-878, aff’d, 336 U.S. 933 (1949).

32“...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...”

33Cong. Globe, 39th Cong., 2d Sess., Part 3, at 1644 (1867).

34It is elementary that any consideration of an amendment proposal from Congress by a State legislature must involve equal freedom on the part of each State to ratify or reject, as its legislature in its deliberation and discretion may determine. The constitutional right and power of a State legislature to ratify carries with it, by necessary implication, an unquestioned and unfettered right and power to refuse to ratify.

In Dillon v. Gloss, 256 U.S. 368, 374 (1921), the view is expressed that, action by the States, on ratification of a proposed constitutional amendment, through State legislatures as “representative assemblies,” is an “expression of the people’s will.” Accordingly, any effort to coerce or manipulate action by a State legislature, on a constitutional amendment proposal, would be tantamount to tampering with the machinery by which the will of the people is expressed in a matter of grave importance. That is exactly what was done on a vast scale, by the dominant majority in Congress, in bringing about the ostensible ratification of the Fourteenth Amendment.



35Cong. Globe, 39th Cong., 2d Sess., Part 3, at 1729-1732, 1969-1972 (1867).

36Id. at 1733, 1976.

37Some may pretend that the ratifications of the Fourteenth Amendment by the Southern States were not compelled or coerced, since the Reconstruction Act gave those States the option or election either to ratify the amendment and resume their former statehood status, with representation in Congress and power of self-government restored, or else to persist in their rejection of the amendment and to remain under military rule. Any such suggestion can be effectively answered by citing the holding in Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593 (1929), that an exercise of one constitutional right may not lawfully be conditioned upon the surrender of another constitutional right. That opinion speaks of such an ostensible choice as being “no choice, except the choice between the rock and the whirlpool” and “requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion.” These quoted expressions, although from a late case relating to another statute, would describe most aptly the predicament in which the Southern States were placed by the harsh and compulsive provisions of the unconstitutional Reconstruction Act.

This forthright language just quoted contrasts sharply with the unrealistic refusal in White v. Hart, 13 Wall. 646, 649 (1872) to recognize the obvious fact that the new state constitution, adopted by Georgia under the compulsion of the Reconstruction Act, was a product of Congressional “dictation and coercion.” In that opinion, the Court ignored actualities to such an extent as to characterize this new constitution, forced upon that State through reiterated compulsive enactments of Congress, as “a voluntary and valid offering” submitted by the State to Congress. Id. At 648, 649. This decision did not require a direct adjudication upon the constitutionality and validity of the Reconstruction Act, which came into the case only in a collateral manner.



38United States v. Lovett, 328 U.S. 303 (1946).

39Cummings v. Missouri, 4 Wall. 277 (1866); Ex Parte Garland, 4 Wall. 333 (1866).

40This is emphasized by decisions recognizing that conflicts between Federal and State authority bring into operation one of the most important function of the Supreme Court. This high function of the Court was adverted to in the opinion in Luther v. Borden: “The high power has been conferred on this court, of passing judgment upon the acts of the state sovereignties, and the legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the constitution of the United States.” 7 How. 1, 47 (1848).

Other utterances of the court most pertinent to the judicial duty to entertain and decide issues arising when action by a State or the United States is challenged by the other, as an invasion of the constitutional rights and prerogatives of the challenger, are found in Harkrader v. Wadley: “And while it is the duty of this court, in the exercise of its judicial power, to maintain the supremacy of the Constitution and laws of the United States, it is also its duty to guard the States from any encroachment upon their reserved rights by the General Government or the Courts thereof.” 172 U.S. 148, 162 (1898); and in Matter of Heff: “In this Republic there is a dual system of government, National and state. Each within its own domain is supreme, and one of the chief functions of this court is to preserve the balance between them, protecting each in the powers it possesses and preventing any trespass thereon by the other.” 197 U.S. 488, 505 (1905).



414 Wall. 475 (1866).

42Id. at 500, 501.

43This refusal of the Court to entertain an action, seeking to enjoin the President from carrying into execution a law alleged to be unconstitutional, clashes sharply in principle with the established doctrine, going back to an early precedent set by Chief Justice Marshall, Osborn v. Bank of the United States, 9 Wheat. 728, 838-850 (1824), that, even when a sovereign government is not itself for want of the consent to be used, a governmental official may be sued and enjoin upon averment and proper showing of the unconstitutionality of the law under which he purports to act. This is the principle upon which the courts entertain and determine cases involving important constitutional questions, such as the Steel Seizure Cases, Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569, aff’d, 343 U.S. 579 (1952).

It should also be noted that, in Mississippi v. Johnson, 4 Wall. 475 (1966), the defendants against whom the plaintiff sought to proceed included not only the President, but also his subordinates in the prospective enforcement of the Reconstruction Act in the State of Mississippi, particularly General Ord, Military Commander of the district whereof Mississippi was a part. If the Court could have been justified in maintaining its view of the President as a sort of an unsuable “sacred cow,” then General Ord, as the chief subordinate could through whom the President would execute in Mississippi the Act of Congress assailed as unconstitutional, would still have been a proper and logical defendant for testing and determining this constitutional issue under the principle of Osborn v. Bank of the United States, supra. Having as the defendant the subordinate, through whom the chief Executive would perform acts assailed as unconstitutional, would present the identical situation under which the Court acted, by enjoining the steel seizure adjudged to be unconstitutional in Youngstown Sheet & Tube Co. v. Sawyer, supra.



446 Wall. 50 (1867).

45“...we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain acts of Congress, inasmuch as such execution would annul, and totally abolish the existing State government of Georgia, and establish another and different one in its place; in other words, would over throw and destroy the corporate existence of the state by depriving it of all the means and instrumentalities whereby its existence might, and, otherwise would, be maintained.” Id. at 76.

This denial by the Supreme Court of the right of a State to litigate the constitutionality of a Congressional assault upon the validity of its government, and the existence of its sovereignty, exhibits a painful contrast on comparison with later recognitions by the same Court of the right of the same State to sue and litigate, in behalf of its quasi-sovereign rights and interests. Georgia v. Tennessee, 206 U.S. 203, 237 (1907), and, as parens patriac in behalf of the economic and industrial interests of its people, Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 446-451 (1945). Pertinent here also are judicial recognitions of the right of the State to sue for protecting the health, comfort and welfare of its inhabitants against a threatened infraction. See Missouri v. Illinois, 180 U.S. 208, 241 (1901); Pennsylvania v. West Virginia, 262 U.S. 553, 591 592 (1923).



466 Wall. 318 (1867) (motion to dismiss denied), 7 Wall. 506 (1868).

47This decision appears juridically sound. See Brunner v. United States, 343 U.S. 112 (1952). It illustrates, however, the infirmaties in our judicial system whenever a dominant and determined majority in Congress chooses to embark upon a program for sabotaging the power and efficacy of the Federal Judiciary. Our Supreme Court has very little vested constitutional judicial power, and our inferior Federal Courts have none at all.

48There can be no basis for any legitimate and dispassionate doubt as to the jurisdiction of the Supreme Court over Mississippi v. Johnson, 4 Wall. 475 (1866), and Georgia v. Stanton, 6 Wall. 50 (1867), as original cases, in view of the applicable provision of Article III of the Constitution of the United States. The judicial power of the United States extended to each of these cases, as a case “arising under this Constitution, the Laws of the United States...” Art. III, § 2.

Each of these cases came within the original jurisdiction of the Supreme Court as a case “in which a State shall be Party...” Art. III, § 2.

The litigious interest of each of these States, in instituting its suit in a proper tribunal, extended to defending and protecting the validity of its government, and the existence of its sovereignty, against an assertedly unconstitutional assault thereon by Congress. Beyond this, since the proposed Fourteenth Amendment unquestionably would greatly enlarge Federal power, with a corresponding diminution of State power, each of these States also had a direct right and interest in litigating the constitutionality of those provisions of the Reconstruction

Act which sought to coerce and compel ratification of this hitherto rejected amendment proposal.



4915 Stat. 706, 707, 710, 711 (1868).

5015 Stat. 708, 708-710 (1868).

51Harris v. Minister of the Interior, [1952] 2 So. Afr. L. Rep. 428 also reported in [1952] I T.L.R. 1245.

52See Griswold, The “Coloured Vote Case” in South Africa, 65 Harv. L. Rev. 1361 (1952); Griswold, The Demise of the High Court of Parliament in South Africa, 66 Harv. L. Rev. 864 (1953).

536 Wall. 50 (1867).

54U.S. Const. Art. IV, § 4.

55The Federalist, No. 43 (Madison) at 283 (Mod. Lib. Ed. 1941).

Notwithstanding this clear and sound demonstration by Madison that this constitutional guarantee should not and could not serve as a pretext for an alteration in the form of a State government of established and recognized republican character, against the protest and objection of the State, there persists in certain decisions of the Supreme Court the concept that this constitutional provision confers upon Congress, acting upon a “political” subject and hence not subject to judicial review, and undefined power of nebulous character to compel changes in an existing state governmental structure. See Luther v. Borden 7 How. 1, 42 (1848); Pacific Telephone Co. v. Oregon, 223 U.S. 118, 133, 147 (1912); Mountain Lumber Co. v. Washington, 243 U.S. 219, 234 (1917); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 79, 80 (1930); Highlands Farms Dairy v. Agnew, 300 U.S. 608, 612 (1937).

These observations as to the supposed existence of any such “political” power on the part of Congress are necessarily purely obiter, in the sense that none of these cases involved any effort on the part of Congress to exercise any such power upon and against an existing and objecting state governmental structure. Each of these cases involved an unsuccessful plea or contention for judicial action against some exercise of state authority or against some state law, on the argument that the relief sought was required or authorized by the constitutional guarantee of a republican form of government. In each case, the Court declined to so act against the existing state governmental structure or law.

Accordingly, in so far as what was actually at issue and decided is concerned, none of these cases produced a decision which would clash with the view of Madison that the constitutional guarantee of a republican form of government serves as a safeguard protecting, against enforced change by federal action, a state governmental structure established and recognized as republican in character. In so far as these opinions contain discursive observations on a possible unrestrained power in Congress, of a “political” character, to alter an established state governmental structure on the pretext of carrying out the constitutional guarantee of a republican form of government, it should be sufficient to point out that a spurious fallacy does not become sound law merely through being incorporated as obiter in a reported decision of even the highest Court in an important case.

It is appropriate to also mention White v. Texas, 7 Wall. 700 (1869), as a decision which may be asserted to embody a holding that the enactment of the Reconstruction Act was authorized by the constitutional guarantee of a republican form of government. Such an assertion would seem to be very much of an overstatement, since the validity and effect of the Reconstruction Act were not directly at issue, but came into the case only in a collateral and indirect manner. Indeed, the opinion rests the right of Texas to prosecute the suit as much upon the authorization of the suit by the state government antedating the Reconstruction Act as upon such authorization by the state government provisionally set up by the military authorities under the Reconstruction Act. Id. at 731, 732. The opinion expressly disclaims “investigating the legal title of either to the executive office.”

Furthermore, the concept of “an indestructible union... of indestructible states” expressed in this opinion, id. at 725, would seem to be at variance with the devastating impact of the Reconstruction Act upon Texas as a State. Highly significant in this connection are the carefully precise statements by the Court that the case required no pronouncement of “judgment upon the constitutionality of any particular provision of these acts” and no inquiry “into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress.” Id. at 731.

It would seem appropriate to close this discussion of cases, which might be already made in the test that under no conceivable theory could the coerced and compelled ratification of the Fourteenth Amendment be defended as authorized by the constitutional guarantee of a republican form of government, even if some of the other provisions of the Reconstruction Act might derive some support from that constitutional provision.


56“In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.” Id. at 282.

5721 Wall. 162 (1874).

58“The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended.

“The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution.” Id. at 175, 176.



59H.J.R. 1 (June 29, 1868).

60Sen. J. 1 (June 29, 1868).

61Sen. J. 20, 21 (July 9, 1868).

62See note 5 supra.

63In 1877 the people of Louisiana succeeded in reestablishing their own government, and thus rid themselves of the puppet government excrescence which the Reconstruction Act had for a time imposed upon them by coercion from without. The present state government of Louisiana is the direct lineal successor of the “Nicholls Government,” which the people of Louisiana elected, installed and maintained in office in 1877.

The “Nicholls Government” came into office in Louisiana over the bitter opposition of the predecessor puppet government. The latter sought to install the “Packard Government” in official power in Louisiana, and for several months Louisiana had two governments–the puppet “Packard Government” spawned by the Reconstruction Act, and the “Nicholls Government” elected by the people. Upon the withdrawal of military support from it, “the Packard Government disintegrated.” See Henry P. Dart. The History of the Supreme Court of Louisiana, 133 La. XXX, liv, lv (1913). The “Nicholls Government” thus came into power as in actuality a new government–not as a successor and continuation of the “disintegrated” puppet government.

This type of change was characteristic of what occurred in other Southern States, as the puppet governments which had gone through the form of ratifying the Fourteenth Amendment, under the compulsion and coercion of the Reconstruction Act, fell from power one by one and were succeeded by governments of the people.


645 Elliot’s Debates 531.

65Id. at 531-533.

66It may be argued, upon the predicate of language in such decisions as Leser v, Garnett, 258 U.S. 130, 137 (1922), and Coleman v. Miller, 307 U.S. 433, 446-450, 456-460 (1939), that certain questions or issues pertaining to ratification procedure are, by their nature, political and non—justiciable, and that determination thereof by Congress or by some official in the exercise of functions delegated to him by Congress, 1 U.S.C. § 1066, formerly 5 U.S.C. 160, 3 Stat. 439, is conclusive upon the judiciary. The arguments predicated upon this theory have lost some force by the divisions of opinion within the Court on various applications of this theory in Coleman v. Miller.

No such paramount power over any step or event in the ratification phase of a constitutional amendment proposal, after submission of the proposal by Congress to either state legislatures or state conventions has taken place, is conferred upon Congress by either the plain wording of Article V, or the spirit or intent of Article V as shown by the history of its evolvement in the Federal Convention of 1787. There is nowhere in the pertinent sources of Congressional authority deriving from Article V any warrant for a determination by Congress, unreviewable by the judiciary, that Congress has any power at all to coerce and compel rejecting States to change their action to ratification. To set up such an reviewable power in Congress, as to the validity of its own coercive action directed against sovereign States, would be an attempt to create a “High Court of Congress” having judicial functions and powers superior to those of the Supreme Court of the United States itself.

It may be assumed that, when state legislatures are acting on ratification vol non of a submitted constitutional amendment proposal, it is appropriate for Congress or some federal functionary so doing under authority delegated by Congress, to act as “scorekeeper” and to tabulate and announce the result. However, to use an apt illustration borrowed from a favorite outdoor sport, a “scorekeeper” at a baseball game would clearly have no power (inherent or implied) to score a strike out as a base hit. Or to recall to the bat a player who has just struck out and to order the pitcher to continue to pitch to this batter until he does get a base hit.

These simple illustrations of the very limited functions and powers of a “scorekeeper” completely refute any idea that any function or power which Congress might have to statistically record and compile, and to declare the results of action by the States on ratification or rejection of an amendment proposal, could by any stretch of the imagination confer upon Congress any power to influence or compel state action one way or the other on ratification or rejection, or to legalize a coerced and compelled change by a State from rejection to ratification.



Finally, a reference to the several decisions treating as justiciable issues controversies pertaining to various questions arising in the course of the amendment procedure established by Article V, clearly negatives any idea that the question of the validity of the coerced ratifications of the Fourteenth Amendment, compelled by the Reconstruction Act, could be properly classified as a political and non-justiciable issue. See, e.g., Hollingsworth v. Virginia, 3 Dall. 378 (1798); Hawke v. Smith, 253 U.S. 231 (1920); Rhode Island v. Palmer, 253 U.S. 350 (1920); Hawke v. Smith, 253 U.S. 221 (1920); Dillon v. Gloss, 256 U.S. 368 (1921); United States v. Sprague, 282 U.S. 716 (1931).

67304 U.S. 64 (1938).

6816 Pet. 1 (1842).

69“If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so.” Erie Railroad Co. v. Tompkins, 304 U.S. 64, 77, 78 (1938).

70Pollock v. Farmer’s Loan and Trust Co., 158 U.S. 601 (1895), reversing 157 U.S. 429 (1895).

71District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953).

72See id. at 103, 111, 112; District of Columbia v. John R. Thompson Co., 203 F. 2d 579 (1953), reversing in part 81 A. 2d 249 (1951).

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