In another case, Ex parte William H. McCardle (7 Wall. 506-515), a petition for the writ of habeas corpus for unlawful restraint by military force of a citizen not in the military service of the United States was before the United States Supreme Court. After the case was argued and taken under advisement, and before conference in regard to the decision to be made, Congress passed an emergency act, (Act of March 27, 1868, 15 Stat. at L. 44), vetoed by the President and repassed over his veto, repealing the jurisdiction of the U.S. Supreme Court in such cases. Accordingly, the Supreme Court dismissed the appeal without passing upon the constitutionality of the reconstruction Acts, under which the non-military citizen was held by the military without benefit of writ of habeas corpus, in violation of Section 9, Article I, of the U.S. Constitution which prohibits the suspension of the writ of habeas corpus.
That Act of Congress placed the Reconstruction Acts beyond judicial recourse and avoided tests of constitutionality.
It is recorded that one of the Supreme Court Justices, Grier, protested against the action of the Court as follows:
This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights, not only of the appellant but millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for Legislative interposition to supersede our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say… I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted.
The ten States were organized into Military Districts under the unconstitutional “Reconstruction Acts,” their lawfully constituted Legislatures illegally were removed by “military force,” and they were replaced by rump, o-call Legislatures, seven of which carried out military orders and pretended to ratify the 14th Amendment, as follows:
- Arkansas on April 6, 1868 (McPherson, Reconstruction, p. 53).
- North Carolina on July 2, 1868 (House Journal 1868, 15; Senate Journal 1868, p. 15).
- Florida on June 9, 1868 (House Journal 1868, p. 9; Senate Journal 1868, p. 8).
- Louisiana on July 9, 1868 (Senate Journal 1868, p. 1).
- South Carolina on July 9, 1868 (House Journal 1868, 50; Senate Journal 1868, p. 12).
- Alabama on July 13, 1868 (Senate Journal, 40th Congress, 2nd Sessn. p. 725).
- Georgia on July 21, 1868 (House Journal 1868, p. 50).
6. Of the above seven (7) States whose Legislatures re removed and replaced by rump, so-call Legislatures, six (6) Legislatures of the States of Louisiana, Arkansas, South Carolina, Alabama, North Carolina, and Georgia had ratified the 13th Amendment, as shown the Secretary of State’s Proclamation of December 8, 1865. Without the six (6) States’ Ratifications, the 13th Amendment could not and would not have been ratified because said six (6) States made a total twenty-seven (27) out of thirty-six (36) States or exactly three-fourths of the states as required by Article V the U.S. Constitution for ratification.
Furthermore, governments of the States of Louisiana and Arkansas had been re-established under a Proclamation issued by President Abraham Lincoln on December 8, 1863. (Vol. I, pp. 288-306; Vol. II, pp. 1429-1448 — “The Federal and State Constitutions,” etc., compiled under Act of Congress on June 30, 1906, Francis Newton Thorpe, Washington Government Printing Office, 906.)
The government of Georgia had been re-established under a Proclamation issued by President Andrew Johnson dated June 17, 1865. (Same, Thorpe, Vol. II, pp. 809-822.)
The government of Alabama had been re-established under a Proclamation issued by President Andrew Johnson dated June 30, 1865. (Same, Thorpe, Vol. VI, pp. 3269-3281.)
The government of South Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated June 30, 1865. (Same, Thorpe, 1. VI, pp. 3269-3281.)
These three “Reconstruction Acts” (14 Statutes at Large, p. 428, etc.; 15 Statues at Large, p. 14, etc.) under which the above State Legislatures were illegally removed and unlawful rump or puppet so-called Legislatures were substituted in a mock effort to ratify the 14th Amendment, were unconstitutional, null and void, ab initio, and all acts done thereunder were also null and void, including the purported ratification of the 14th Amendment by said six (6) Southern puppet State Legislatures of Arkansas, North Carolina, Louisiana, South Carolina, Alabama, and Georgia.
Those Reconstruction Acts of Congress and all acts and things unlawfully done thereunder were in violation of Article IV, Section 4 of the United States Constitution, which required the United States to guarantee every State in the Union a republican form of government. They violated Article I, Section 3, and Article V of the Constitution, which entitled every State in the Union to two Senators, because under provisions of these unlawful Acts of Congress, ten (10) States were deprived of having two Senators, or equal suffrage in the Senate.
7. The Secretary of State expressed doubt as to whether three-fourths of the required states had ratified the 14th Amendment, shown by his Proclamation of July 20, 1868 (15 Statutes at Large, p. 706). Promptly on July 21, 1868 a Joint Resolution (House Journal, 40th Congress, 2nd Sessn. p. 1126 etc.) was adopted by the Senate and House of Representatives declaring that three-fourths of the several States of the Union had ratified the 14th Amendment. That resolution, however, included purported ratifications by the unlawful puppet Legislatures of five (5) States, Arkansas, North Carolina, Louisiana, South Carolina, and Alabama, which had previously rejected the 14th Amendment by action of their lawfully constituted Legislatures, as above shown. This Joint Resolution assumed to perform the function of the Secretary of State in whom Congress, by Act of April 20, 1818, had vested the function of issuing such proclamation declaring the ratification of Constitutional Amendments.
The Secretary of State bowed to the action of Congress and issued his Proclamation of July 28, 1868, (15 Statutes at Large, p. 708) in which he stated that he was acting under authority of the Act of April 20, 1818, but pursuant to said Resolution of July 21, 1868. He listed three-fourths or so of the then thirty-seven (37) states as having ratified the 14th Amendment, including the purported ratification of the unlawful puppet Legislatures of the States of Arkansas, North Carolina, Louisiana, South Carolina, and Alabama. Without said five (5) unlawful purported ratifications there would have been only 25 states left to ratify out of 37 when a minimum of 28 states was required for ratification by three-fourths of the States of the Union.
The Joint resolution of Congress and the resulting Proclamation of the Secretary of State also included purported ratifications by the States of Ohio and New Jersey although the Proclamation recognized the fact that the Legislatures of said states, several months previously, had withdrawn their ratifications and effectively rejected the 14th Amendment in January, 1868, and April, 1868.
Therefore, deducting these two states from the purported ratifications of the 14th Amendment, only 23 State ratifications at most could be claimed; whereas the ratification of 28 States, or three-fourths of 37 States in the Union, were required to ratify the 14th Amendment.
From all of the above documented historic facts, it is inescapable that the 14th Amendment never was validly adopted as an article of the Constitution, that it has no legal effect, and it should be declared by the Courts to be unconstitutional, and therefore null, void, and of no effect.
The Constitution Strikes the 14th Amendment with Nullity
The defenders of the 14th Amendment contended that the U.S. Supreme Court has finally decided upon its validity. Such is not the case.
In what is considered the leading case, Coleman v. Miller, 307 U.S. 448, 59 S. Ct. 972, the U. S. Supreme Court did not uphold the validity of the 14th Amendment.
In that case, the Court brushed aside constitutional questions as though they did not exist. For instance, the Court made the statement that:
The legislatures of Georgia, North Carolina, and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868.
And the Court gave no consideration to the fact that Georgia, North Carolina and South Carolina were three of the original states of the Union with valid and existing constitutions on an equal footing with other original states and those later admitted into the Union.
What constitutional right did Congress have to remove those state governments and their legislatures under unlawful military power set up by the unconstitutional “Reconstruction Acts,” which had for their purpose, the destruction and removal of these legal state governments and the nullification of their Constitutions?
The fact that these three states and seven other Southern States had existing Constitutions, were recognized as states of the Union, again and again; had been divided into judicial districts for holding their district and circuit courts of the United States; had been called upon by Congress to act through their Legislatures upon two Amendments, the 13th and 14th, and by their ratifications had actually made possible the adoption of the 3th Amendment; as well as their state governments having been re-established under Presidential Proclamations, as shown by President Andrew Johnson’s Veto message and proclamations, were all brushed aside by the Court in Coleman by the statement that:
New governments were erected in those States (and in others) under the direction of Congress.
and that these new legislatures ratified the Amendment.
The U.S. Supreme Court overlooked that it previously had held that at no time were these Southern States out of the Union. White v. Hart, 1871, 13 Wall, 646, 654.
In Coleman, the Court did not adjudicate upon the invalidity of the Acts of Congress which set aside those state Constitutions and abolished their state legislatures — the Court simply referred to the fact that their legally constituted legislatures had rejected the 14th Amendment and that the “new legislatures” had ratified the Amendment.
The Court overlooked the fact, too, that the State of Virginia was also one of the original states with its Constitution and Legislature in full operation under its civil government at the time.
The Court also ignored the fact that the other six Southern States, which were given the same treatment by Congress under the unconstitutional “Reconstruction Acts,” all had legal constitutions and a republican form government in each state, as was recognized by Congress by its admission of those states into the Union. The Court certainly must take judicial cognizance of the fact that before a new state is admitted by Congress into the Union, Congress enacts an Enabling Act, to enable the inhabitants of the territory to adopt a Constitution to set up a republican form of government as a condition precedent to the admission of the state into the Union, and upon approval of such Constitution, Congress then passes the Act of Admission of such state.
All this was ignored and brushed aside by the Court in the Coleman case. However, in Coleman the Court inadvertently said this:
Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States had been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.
In Hawke v. Smith, 1920, 253 U.S. 221, 40 S. Ct. 227, the U.S. Supreme Court unmistakably held:
The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution: that power is conferred upon Congress, and is limited to two methods, by auction of the Legislatures of three-fourths of the states, or conventions in a like number of states. Dodge v. Woolsey, 18 How. 331, 348, 15 L. Ed. 401. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.
We submit that in none of the cases, in. which the Court avoided the constitutional issues involved in the composition of the Congress which adopted the Joint Resolution for the 14th Amendment, did the Court pass upon the constitutionality of the Congress which purported to adopt the Joint Resolution for the 14th Amendment, with 80 Representatives and 23 Senators ‘ in effect, forcibly ejected or denied their seats and their votes on the Joint Resolution proposing the Amendment, in order to pass the same by a two-thirds vote, as pointed out in the New Jersey Legislature Resolution on March 27, 1868.
The constitutional requirements set forth in Article V of the Constitution permit Congress to propose amendments only whenever two-thirds of both houses shall deem it necessary. That is, two thirds of both houses then constituted without forcible ejections.
Such a fragmentary Congress also violated the constitutional requirements of Article V that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
There is no such thing as giving life to an amendment illegally proposed or never legally ratified by three-fourths of the states. There is no such thing as amendment by laches; no such thing as amendment by waiver; no such thing as amendment by acquiescence; and no such thing amendment by any other means whatsoever except he means specified in Article V of the Constitution itself.
It does not suffice to say that there have been hundreds of cases decided under the 14th Amendment to supply the constitutional deficiencies in its proposal or ratification as required by Article V. If hundreds of litigants did not question the validity of the 14th Amendment, or questioned the same perfunctorily without submitting documentary proof of the facts of record which made its purported adoption unconstitutional, their failure cannot change the Constitution for the millions in America. The same thing is true of laches; the same thing is true of acquiescence; the same thing is true of ill-considered court decisions.
To ascribe constitutional life to an alleged amendment which never came into being according to specific methods laid down in Article V cannot be done without doing violence to Article V itself. This is true, because the only question open to the courts is whether the alleged 14th Amendment became a part of the Constitution through a method required by Article V. Anything beyond that which a court is called upon to hold in order to validate an amendment, would be equivalent to writing into Article V another mode of amendment which has never been authorized by the people of the United States.
On this point, therefore, the question is, was the 14th Amendment proposed and ratified in accordance with Article V?
In answering this question, it is of no real moment that decisions have been rendered in which the parties did not contest or submit proper evidence, or the Court assumed that there was a 14th Amendment. If a statute never in fact passed by Congress, through some error of administration and printing got into the published reports of the statues, and if under such supposed statute courts had levied punishment upon a number of persons charged under it, and if the error in the published volume was discovered and the fact became known that no such statute had ever passed in Congress, it is unthinkable that the courts would continue to administer punishment in similar cases, on a non existent statute because prior decisions had done so. If that be true as to a statue we need only realize the greater truth when the principle is applied to the solemn question of the contents of the Constitution.
While the defects in the method of proposing and the subsequent method of computing “ratification” is briefed elsewhere, it should be noted that the failure to comply with Article V began with the first action by Congress. The very Congress which proposed the alleged 14th Amendment under the first part of Article V was itself, at that very time, violating the last part as well as the first part of Article V of the Constitution. We shall see how this was done.
There is one, and only one, provision of the Constitution of the United States which is forever immutable which can never be changed or expunged. The Courts cannot alter it; the executives cannot change it; the Congress cannot change it. The States themselves — even all the States, in perfect concert, cannot amend it in any manner whatsoever, whether they act through conventions called for the purpose or through their legislatures. Not even the unanimous vote of every voter in the United States could amend this provision. It is a perpetual fixture in the constitution, so perpetual and so fixed that if the people of the United States desired to change or exclude it, they would be compelled to abolish he Constitution and start afresh.
The unalterable provision is this: “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.”
A state, by its own consent, may waive this right of equal suffrage, but that is the only legal method by which a failure to accord this immutable right of equal suffrage in the Senate can be justified. Certainly not by forrcible ejection and denial by a majority in Congress, as was done for the adoption of the Joint Resolution for he 14th Amendment.
Statements by the Court in the Coleman case that Congress was left in complete control of the mandatory process, and therefore it was a political affair for Congress to decide if an amendment had been ratified, does not square with Article V of the Constitution which shows no intention to leave Congress in charge of deciding whether there has been a ratification. Even a constitutionally recognized Congress is given but one volition in Article V, that is, to vote whether to propose an amendment on its own initiative. The remaining steps Congress are mandatory. If two-thirds of both houses hall deem it necessary, Congress shall propose amendments; if the Legislatures of two-thirds of the States make application, Congress shall call a convention. For the Court to give Congress any power beyond that to e found in Article V is to write the new material into article V.
It would be inconceivable that the Congress of the United States could propose, compel submission to, and then give life to an invalid amendment by resolving that its effort had succeeded, regardless of compliance with he positive provisions of Article V.
It should need no further citations to sustain the reposition that neither the Joint Resolution proposing he 14th Amendment nor its ratification by the required three-fourths of the States in the Union were in compliance with the requirements of Article V of the Constitution. When the mandatory provisions of the Constitution e violated, the Constitution itself strikes with nullity the Act that did violence to its provisions. Thus, the Constitution strikes with nullity the purported 14th Amendment.
The Courts, bound by oath to support the Constitution, should review all the evidence herein submitted and easure the facts proving violations of the mandatory revisions of the Constitution with Article V, and finally ender judgment declaring said purported Amendment ever to have been adopted as required by the Constitution. The Constitution makes it the sworn duty of the judges to uphold the Constitution which strikes with nullity the 14th Amendment.
And, as Chief Justice Marshall pointed out for a unanimous Court in Marbury v. Madison (1 Cranch 136 179):
The framers of the Constitution contemplated the instrument as a rule for the government of courts, as well as of the legislature.
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that constitution forms no rule for his government?
If such be the real state of things, that is worse than solemn mockery. To prescribe, or take this oath, becomes equally a crime.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions * * * * courts, as well as other departments, are bound by that instrument.
The federal courts actually refuse to hear argument on the invalidity of the 14th Amendment, even when the issue is presented squarely by the pleadings and the evidence as above.
Only an aroused public sentiment in favor of preserving the Constitution and our institutions and freedoms under constitutional government, and the future security of our country, will break the political barrier which now prevents judicial consideration of the unconstitutionality of the 14th Amendment.
Point-a-La-hache, La.
L. H. Perez
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