The dubious origin of the fourteenth amendment


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Relief from the oppressive and unconstitutional features of the Reconstruction Act was sought in vain in the Courts. Three times the Supreme Court found some reason for not deciding these constitutional issues. Unlike the present Court, which was alert to protect three minor government officials against salary-blocking legislation by Congress, interpreted as constituting a bill of attainder against these individuals,38 the Court of 1867-1868 seemed to feel no urge to review the Constitutional merits of the solemn charge of President Johnson that the Reconstruction Act constitution a bill of attainder against nine million people. This is all the more amazing since the two leading precedents on the enforcement of the constitutional prohibition of bills of attainder, cited and followed in United States v. Lovett, were decisions of the Court of 1867-1868.39

The decisions wherein grounds were found for avoiding a ruling on the constitutionally of the Reconstruction Act leave the impression that our highest tribunal failed in these cases to measure up to standard of the judiciary in a constitutional democracy. If the Reconstruction Act was unconstitutional, the people oppressed by it were entitled to protection by the judiciary against such unconstitutional oppression.40

In Mississippi v. Johnson,41 the Court expressed42 definite apprehension that an injunction against the execution of the Reconstruction Act by the President, on the grounds of unconstitutionality, might result in Congressional impeachment of the President for obeying the mandate of the Court.43

In Georgia v. Stanton,44 the Court declined to entertain a suit assailing the constitutionality of the Reconstruction Act, on the ground that the issues raised were political and not justiciable. The opinion frankly describes in the language below the issues as to which the Court held that a State is without any protection in a court of law.45

In Ex Parte McCardle,46 the Court permitted Congress to evade a judicial determination of the constitutionality of the Reconstruction Act, by repealing a statutory provision as to appellate jurisdiction after the appeal had been lodged, and even after the case had been argued and submitted for decision. Again the opinion leaves the impression that the Court preferred not o be obliged to pass on the merits of the constitutional issue.47

As a result of these decisions, enforcement of the Reconstruction Act against the Southern States, helpless to resist military rule without the aid of the judiciary,48 went forward unhampered. Puppet governments were founded in these various States under military auspices. Through these means, the adoption of new state constitutions, conforming to the requirements of Congress, was accomplished. Likewise, one by one, these puppet state governments ratified the Fourteenth Amendment, which their more independent predecessors had rejected. Finally, in July 1868, the ratifications of this amendment by the puppet governments of seven of the ten Southern States, including Louisiana, gave more than the required ratification by three-fourths of the States, and resulted in a Joint Resolution49 adopted by Congress and a Proclamation50 by the Secretary of State, both declaring the Amendment ratified and in force.

It is interesting to speculate upon what might have been the course of events if our Supreme Court of 1867-1868 had met these charges of unconstitutional action in the enactment and enforcement of the Reconstruction Act in the direct manner which characterized the judicial performance of the Supreme Court of the Union of South Africa in the recent “Coloured Vote Case.”51 The Malan Government had enacted certain legislation restricting the rights of colored voters, which clashed with the assertedly “entrenched clauses” of the Constitution for South Africa, and twice that Court upheld the constitution on the merits of the issues and pronounced the unconstitutionality of the offending legislation. For this find judicial work, it has been highly commended.52

When Georgia v. Stanton53 is compared with the recent South African decisions, one cannot escape the impression that the difference between the cases is the difference between meeting and evading (even though the evasion be perhaps unconscious) an issue which ought to be met and decided.

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