II. Joint Resolution Ineffective
Article I, Section 7 provides that not only every bill which shall have been passed by the House of Representatives and the Senate of the United States Congress, but that:
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
The Joint Resolution proposing the 14th Amendment, (14 Statutes at Large, p. 358 etc.) was never presented to the President of the United States for his approval, as President Andrew Johnson stated in his message on June 22, 1866. (Senate Journal, 39th Congress, lst session. p, 563, and House Journal, p. 889)
III. Proposed Amendment Never Ratified by Three-Fourths of the States
1. Pretermitting the ineffectiveness of said resolution, as above, fifteen (15) States out of then thirty-seven (37) States of the Union rejected the proposed 14th Amendment between the date of its submission to the States by the Secretary of State on June 16, 1866 and March 24, 1868, thereby further nullifying said resolution and making it impossible for its ratification by the constitutionally required three-fourths of such States, as shown by the rejections thereof by the Legislatures of the following states:
- Texas rejected the 14th Amendment on October 27, 1866. (House Journal 1866, pp. 578-584; Senate Journal 1866, p. 471)
- Georgia rejected the 14th Amendment on November 9, 1866. (House Journal 1866, p. 68; Senate Journal 1866, p. 72.)
- Florida rejected the 14th Amendment on December 6, 1866. (House Journal 1866, p. 76; Senate Journal 1866, p. 8)
- Alabama rejected the 14th Amendment on December 7, 1866. (House Journal 1866, pp. 210-213; Senate Journal 1866, p. 183)
- North Carolina rejected the 14th Amendment on December 14, 1866. (House Journal 1866-1867, p. 183; Senate Journal 1866-1867, p. 138)
- Arkansas rejected the 14th Amendment on December 17, 1866. (House Journal 1866, pp. 288-291; Senate Journal 1866, p. 262
- South Carolina rejected the 14th Amendment on December 20, 1866. (McPherson, Reconstruction, p. 194; Annual Encyclopedia, p. 452)
- Kentucky rejected the 14th Amendment on January 8, 1867. (House Journal 1867, p. 60; Senate Journal 1867, p. 62)
- Virginia rejected the 14th Amendment on January 9, 1867. (House Journal 1866-1867, p. 108; Senate Journal 1866-1867, p. 101)
- Louisiana rejected the 14th Amendment on February 6, 1867. (McPherson, Reconstruction, p. 194; Annual Encyclopedia, p. 452)
- Delaware rejected the 14th Amendment on February 7, 1867 (House Journal 1867, p. 223; Senate Journal 1867, p. 176)
- Maryland rejected the 14th Amendment on March 23, 1867 (House Journal 1867, p. 1141; Senate Journal 1867, p. 808)
- Mississippi rejected the 14th Amendment on January 31, 1867. (McPherson, Reconstruction, p. 194)
- Ohio rejected the 14th Amendment on January 15, 1868 (House Journal 1868, pp. 44-50; Senate Journal 1868, pp. 33-38.)
- New Jersey rejected the 14th Amendment on March 24, 1868. (Minutes of the Assembly 1868, p. 743; Senate Journal 1868, p. 356)
There was no question that all of the Southern states which rejected the 14th Amendment had legally constituted governments, were fully recognized by the federal government, and were functioning as member states of the Union at the time of their rejection.
President Andrew Johnson, in his Veto message of March 2, 1867, (House Journal, 39th Congress, 2nd Sessn., p. 563 etc.) pointed out:
It is not denied that the States in question have each of them an actual government with all the power, executive, judicial, and legislative, which properly belong to a free State. They are organized like the other States of the Union, and, like them, they make, administer, and execute the laws which concern their domestic affairs.
If further proof were needed that these States were operating under legally constituted governments as member States of the Union, the ratification of the 13th Amendment by December 8, 1865 undoubtedly supplies this official prool If the Southern States were not member States of the Union, the 13th Amendment would not have been submitted to their Legislatures for ratification.
2. The 13th Amendment to the United States Constitution was proposed by Joint Resolution of Congress, (13 Statutes at Large, p. 567) and was approved February 1, 1865 by President Abraham Lincoln, as required by Article I, Section 7 of the United States Constitution. the President’s signature is affixed to the Resolution. The 13th Amendment was ratified by 27 states of he then thirty-six (36) states of the Union, including he Southern States of Virginia, Louisiana, Arkansas, South Carolina, Alabama, North Carolina, and Georgia. This is shown by the Proclamation of the Secretary of State December 18, 1865. (13 Statutes at Large, p. 774.) Without the votes of these seven (7) Southern State Legislatures the 13th Amendment would have failed. There can be no doubt but that the ratification by these seven (7) Southern States of the 13th Amendment again established the fact that their Legislatures and State governments were duly and lawfully constituted and functioning as such under their States Constitutions.
3. Furthermore, on April 2, 1866, President Andrew Johnson issued a proclamation that, “the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida is at an end, and is henceforth to be so regarded.” (Presidential Proclamation No. 153, General Records of theUnited States, G.S.A. National Archives and Records Service.)
On August 20, 1866, President Andrew Johnson issued another proclamation (14 Statutes at Large, p. 814) pointing out the fact that the House of Representatives and Senate had adopted identical Resolutions on July 22nd (House Journal, 37th Congress, lst Sessn., 123 etc.) and July 25th, 1861, (Senate Journal, 37th Congress, lst Sessn., p. 91 etc.) that the Civil War forced by disunionists of the Southern States, was not waged for the purpose of conquest or to overthrow the rights and established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all equality and rights of the several states unimpaired, and that as soon as these objects are accomplished, the war ought to cease.
The President’s proclamation on June 13, 1865, declared the insurrection in the State of Tennessee had been suppressed. (13 Statutes at Large, p. 763.) The President’s proclamation on April 2, 1866, (14 Statutes at Large, p. 811) declared the insurrection in the other Southern States, except Texas, no longer existed. On August 20 1866, (14 Statutes at Large, p. 814) the President proclaimed that the insurrection in the State of Texas had been completely ended, and his proclamation continued:
the insurrection which heretofore existed in the State of Texas is at an end, and is to be henceforth so regarded in that State, as in the other States before named in which the said insurrection was proclaimed to be at an end by the aforesaid proclamation of the second day of April, one-thousand, eight-hundred and sixty-six.
And I do further proclaim that the said insurrection is at an end, and that peace, order, tranquility, and civil authority now exist, in and throughout the whole United States of America.
4. When the State of Louisiana rejected the 14th Amendment on February 6, 1867, [making the 10th State to have rejected the same, or more than one-fourth of the total number of 36 States of the Union (as of that date), and leaving less than three-fourths of the States to possibly ratify the same] the Amendment failed of ratification in fact and in law. It could not have been revived except by a new Joint Resolution of the Senate and House of Representatives in accordance with Constitutional requirement.
5. Faced with the positive failure of ratification of the 14th Amendment, both Houses of Congress passed over the veto of the President three Acts known as Reconstruction Acts, between the dates of March 2 and July 19, 1867, especially the third of said Acts, 15 Stat. p. 14 etc., designed illegally to remove with “Military force” the lawfully constituted State Legislatures of the ten (10) Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana, and Texas. In President Andrew Johnson’s Veto message on the Reconstruction Act of March 2, 1867, (House Journal, 39th Congress, 2nd Sessn. p. 563 etc.) he pointed out these unconstitutionalities:
If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live. That work is his work, and it cannot properly be taken out of his hands. All this legislation proceeds upon the contrary Assumption that the people of each of these States shall have no constitution, except such as may be arbitrarily dictated by Congress, and formed under the restraint of military rule. A plain statement of facts makes this evident.
In all these States there are existing constitutions, framed in the accustomed way by the people. Congress, however, declares that these constitutions are not “loyal and republican,” and requires the people to form them anew. What, then, in the opinion of Congress, is necessary to make the constitution of a State “loyal and republican?” The original act answers the question: It is universal negro suffrage, a question which the federal Constitution leaves exclusively to the States themselves. All this legislative machinery of martial law, military coercion, and political disenfranchisement is avowedly for that purpose and none other. The existing constitutions of the ten States conform to the acknowledged standards of loyalty and republicanism. Indeed, if there are degrees in republican forms of government, their constitutions are more republican now, than when these States — four of which were members of the original thirteen — first became members of the Union.
In President Andrew Johnson’s Veto message on the Reconstruction Act on July 19, 1867, (40th Congress, lst Sessn., House Journal p. 232 etc.) he pointed out various unconstitutionalities as follows:
The veto of the original bill of the 2d of March was based on two distinct grounds, the interference of Congress in matters strictly pertaining to the reserved powers of the States, and the establishment of military tribunals for the trial of citizens in time of peace.
A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by federal officers, who are to perform the very duties of its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal State government by the same federal agency.
****
It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.
During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be distracted. The last act on this subject was passed July 23, 1866, by which every one of these ten States was arranged into districts and circuits.
They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment — seven of which votes were given by seven of these ten States — it was proclaimed to be a part of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to its jurisdiction.
If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State Constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.
As to the other constitutional amendment having reference to suffrage, it happens that these States have not accepted it. The consequence is, that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States. Again, in the machinery of the internal revenue laws, all these States are distracted, not “territories” but as “States.”
So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States.
****
To me these considerations are conclusive of the unconstitutionality of this part of the bill before me, and I earnestly commend their consideration to the deliberate judgement of Congress. (And now to the Court.)
Within a period of less than a year the legislation of Congress has attempted to strip the executive department of the government of some of its essential powers. The Constitution, and the authority provided in it, devolve upon the President the power and duty to see that the laws are faithfully executed. The Constitution, in order to carry out this power gives him the choice of the agents, and makes them subject to his control and supervision. But in 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 pretense 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 adjudication 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 enforced 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.
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 his court in the premises.
The application 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 adjudicating upon the constitutionality of the Reconstruction Acts.
Continued on next page…
