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Bush, Florida and 14th Amendment

Having long favored Gov. George W. Bush for president of the United States, we were pleased that the unfortunate election impasse in Florida was finally settled in his favor.

It came following a ruling by the Supreme Court of the United States. But it is ironic that part of the court's decision leading to Gov. Bush's victory was based on an "alleged" amendment of the Constitution of the United States that has never been legally ratified!

It's a complex story, one that legal authorities prefer to ignore. But it is a very significant one.

Beginning with President Lincoln

It goes all the way back to President Abraham Lincoln and the events that followed his assassination.

The Confederate states seceded from the Union with the contention that they had joined the United States by peaceful sovereign decision and thus had the right to separate from it by peaceful sovereign decision.

President Lincoln disagreed. He fought the War Between the States with the contention that the Union could not be dissolved -- and that the Confederate states never left the Union.

The Confederacy was defeated, with Mr. Lincoln's position being ratified by force.

During the war, on Jan. 1, 1863, Mr. Lincoln issued the Emancipation Proclamation "to free the slaves." But it did not apply nationwide -- only to the portions of the Confederate states that were not then actually under Union control.

The 13th Amendment

To give real legal effect to the abolition of slavery throughout the whole nation after the war, the 13th Amendment of the Constitution was proposed. It was ratified by three-fourths of the states, including former Confederate states.

That, of course, underlined Mr. Lincoln's contention that "the erring sisters" had never departed from the Union.

"Reconstruction"

But after Mr. Lincoln's assassination, "Radical Republicans" in Congress discarded his conciliatory policies to impose a harsh "Reconstruction" on the South. (That is what brought about the politically Democratic "Solid South" that did not materially erode so far as presidential politics were concerned until 1948.)

The Radical Republican Reconstruction program demanded of the South, among other things, ratification of the proposed 14th Amendment.

It includes a very important principle that today is widely applauded: "equal protection of the laws."

That principle was asserted in November 2000 as the basis for part of the Supreme Court's decision in the recent Florida election case.

14th never legally ratified

But the 14th Amendment was not legally ratified -- and has not been ratified to this day!

The Southern states, which were considered to be "in" the United States to adopt the 13th Amendment, refused to ratify the 14th Amendment. That prompted the Radical Republicans to declare that they were "out" of the Union -- until they did ratify!

(There was another important issue: The Constitution says no state can be formed from the territory of another without the permission of the original state. During the War Between the States, West Virginia was formed from Virginia, which had seceded. But if Virginia had never "left," as Mr. Lincoln contended, the establishment of West Virginia -- with the power to cast state votes -- was unconstitutional.)

Army of occupation

When 10 Southern states rejected the 14th Amendment, they were subjected to an army of occupation and considered to be "out" of the union. Ratification of the 14th Amendment was required to get back "in." But how could ratification by states that were "out" have any legal effect "in" the Union? And if the states were "in," they had a right not to ratify.

In some cases, unrepresentative Reconstruction legislatures managed "ratification" only by force.

In Tennessee

In the case of Tennessee, legislators opposing ratification absented themselves from the Legislature to deny a quorum that was required to take action. So the Reconstruction administration chased down and arrested two opposing representatives, locked them in a room near the state House of Representatives chamber in Nashville -- and listed them as "present" on the legislative roll call to create "quorum." Only then did Tennessee "ratify."

Even with chicanery such as this, ratification by 28 of the 37 states was required to give the 14th Amendment constitutional legitimacy.

While Southern states objected, two Northern states -- New Jersey and Ohio -- that had previously ratified the 14th Amendment rescinded their approval in protest against the high-handed "ratification" process. They did so before there was any federal proclamation claiming ratification had been accomplished. If they had the power to ratify, didn't they have the power to rescind ratification before three-fourths of the states had approved?

Oregon also withdrew its ratification -- but only after the U.S. secretary of state had declared in 1868 (though without legal justification) that ratification had taken place. But since three-fourths of the states had not voluntarily ratified, why shouldn't Oregon's withdrawal of ratification be valid?

The 14th amendment did not achieve voluntary ratification by 28 states then, and has not been ratified by three-fourths of the states since. But despite the clear history of the illegitimacy of the 14th Amendment, it has been treated legally as though it were legitimate, with the effect of law.

In Florida, year 2000

With the principle of "equal protection of the laws" being a good one, however, the U.S. Supreme Court in November 2000 used it as part of the majority (5-4) reasoning that led to the victory of President-elect Bush.

As noted commentator Paul Harvey would say, "That's the rest of the story" -- but it's really only part of it.

 
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