Excerpt from the Ruling of the Utah Supreme Court
It is necessary to review the historical background to understand how the Fourteenth Amendment came to be a part of our Federal Constitution.
General Lee had surrendered his army on April 9, 1865, and General Johnston surrendered his 17 days later. Within a period of less than six weeks thereafter, not one Confederate soldier was bearing arms. By June 30, 1865, the Confederate states were all restored by presidential proclamation to their proper positions as states in an indissoluble union, and practically all citizens thereof had been granted amnesty. Immediately thereafter each of the seceding states functioned as regular states in the Union with both state and federal courts in full operation.
President Lincoln had declared the freedom of the slaves as a war measure, but when the war ended, the effect of the proclamation was ended, and so it was necessary to propose and to ratify the Thirteenth Amendment in order to insure the freedom of the slaves.
The 11 southern states having taken their rightful and necessary place in the indestructible Union proceeded to determine whether to ratify or reject the proposed Thirteenth Amendment. In order to become a part of the Constitution, it was necessary that the proposed amendment be ratified by 27 of the 36 states. Among those 27 states ratifying the Thirteenth Amendment were 10 from the South, to wit, Louisiana, Tennessee, Arkansas, South Carolina, Alabama, North Carolina, Georgia, Mississippi, Florida, and Texas.
When the 39th Congress assembled on December 5, 1865, the senators and representatives from the 25 northern states voted to deny seats in both houses of Congress to anyone elected from the 11 southern states. The full complement of senators from the 36 states of the Union was 72, and the full membership in the House was 240. Since it requires only a majority vote (Article I, Section 5, Constitution of the United States) to refuse a seat in Congress, only the 50 senators and 182 congressmen from the North were seated. All of the 22 senators and 58 representatives from the southern states were denied seats.
Joint Resolution No. 48 proposing the Fourteenth Amendment was a matter of great concern to the Congress and to the people of the Nation. In order to have this proposed amendment submitted to the 36 states for ratification, it was necessary that two thirds of each house concur. A count of noses showed that only 33 senators were favorable to the measure, and 33 was a far cry from two thirds of 72 and lacked one of being two thirds of the 50 seated senators.
While it requires only a majority of votes to refuse a seat to a senator, it requires a two thirds majority to unseat a member once he is seated. (Article 1, Section 5, Constitution of the United States) One John P. Stockton was seated on December 5, 1865, as one of the senators from New Jersey. He was outspoken in his opposition to Joint Resolution No. 48 proposing the Fourteenth Amendment. The leadership in the Senate not having control of two thirds of the seated senators voted to refuse to seat Mr. Stockton upon the ground that he had received only a plurality and not a majority of the votes of the New Jersey legislature. It was the law of New Jersey and several other states that a plurality vote was sufficient for election. Besides, the Senator had already been seated. Nevertheless, his seat was refused, and the 33 favorable votes thus became the required two thirds of the 49 members of the Senate.
In the House of Representatives it would require 122 votes to be two thirds of the 182 members seated. Only 120 voted for the proposed amendment, but because there were 30 abstentions it was declared to have been passed by a two thirds vote of the House.
