The dubious origin of the fourteenth amendment


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Article V6 of the Constitution sets forth the procedure for amendment proposals and ratifications. The portion of Article V pertinent to the amendment machinery utilized in this instance reads as follows:

“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 the Legislatures of three fourths of the several States...”

As will be observed, this amending process is a two-step process. Congress takes the first step-submission. The next step-ratification—must be the act of the States—the act of at least three fourths of the States concurring in ratifications passed by their respective legislatures.

When the amendment procedure set forth in Article V of the Constitution is carefully analyzed, it will appear that the States have the primary of major and final function in the amending process, and the role of Congress therein, although substantial and important, is definitely of a secondary and preliminary nature. Indeed, an amendment proposal defeated in Congress may nevertheless be adopted exclusively by state action. This would occur upon the legislatures of two-thirds of the States applying for the calling of a Convention to propose such an amendment, and upon the ratification of that amendment proposal by three-fourths of the States.

Even when the amendment proposal is the product of a two thirds vote of Congress, the final say—so rests entirely with the States. After the initial step of voting the amendment proposal, the only remaining function in the ratification procedure allocated to Congress by the Constitution is a minor one—the function of determining7 whether the States, in voting on ratification, shall act through their respective legislatures, or through Conventions.

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