Abuses in Amending the Constitution

Amending the Constitution

 The Framers didn’t claim to be infallible and knew that the Constitution might need to have some changes or additions made for some circumstances that perhaps they had not considered.  They therefore made provisions for just such an eventuality. A constitution needs to give an element of stability to any nation.  A constitution is the people’s protection from the abuses of government-including abuses in the amendment process itself.  The Framers made the Constitution difficult to change so that every fad that came along would not generate a new method of organizing government.   In other words a super majority of each house of the legislative branch as well as a super majority of the states need to concur with the proposed changes.  The following instructions are found in Article V of the Constitution describing the amendment process.

Article V

 The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

 An Example of Abuse

 The system can however be abused.  The methods used in forcing the adoption of the 14th Amendment is a very flagrant example of this abuse.  In a case before the Utah State Supreme Court, Dyett v. Turner, in 1968, the justices point out this abuse of the amendment process.

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.

             Whether it requires two thirds of the full membership of both houses to propose an amendment to the Constitution or only two thirds of those seated or two thirds of those voting is a question which it would seem could only be determined by the United states Supreme Court.  However, it is perhaps not so important for the reason that the amendment is only proposed by Congress.  It must be ratified by three fourths of the states in the Union before it becomes a part of the Constitution.  The method of securing the passage through Congress is set out above, as it throws some light on the means used to obtain ratification by the states thereafter.

             Nebraska had been admitted to the Union, and so the Secretary of State in transmitting the proposed amendment announced that ratification by 28 states would be needed before the amendment would become part of the Constitution, since there were at the time 37 states in the Union.  A rejection by 10 states would thus defeat the proposal.

            By March 17, 1867, the proposed amendment had been ratified by 17 states and rejected by 10, with California voting to take no action thereon, which was equivalent to rejection.  Thus the proposal was defeated.

             One of the ratifying states, Oregon, had ratified by a membership wherein two legislators were subsequently held not to be duly elected, and after the contest the duly elected members of the legislature of Oregon rejected the proposed amendment.  However, this rejection came after the amendment was declared passed.

             Despite the fact that the southern states had been functioning peacefully for two years and had been counted to secure ratification of the Thirteenth Amendment, Congress passed the Reconstruction Act, which provided for the military occupation of 10 of the 11 southern states.  It excluded Tennessee from military occupation, and one must suspect it was because Tennessee had ratified the Fourteenth Amendment on July 7, 1866.  The Act further disfranchised practically all white voters and provided that no senator or congressman from the occupied states could be seated in Congress until a new constitution was adopted by each state which would be approved by Congress, and further provided that each of the 10 states must ratify the proposed Fourteenth Amendment, and the Fourteenth Amendment must become a part of the Constitution of the United States before the military occupancy would cease and the states be allowed seats in Congress.

             By the time the Reconstruction Act had been declared to be the law, three more states had ratified the proposed Fourteenth Amendment, and two – Louisiana and Delaware – had rejected it.  Then Maryland withdrew its prior ratification and rejected the proposed Fourteenth Amendment.  Ohio followed suit and withdrew its prior ratification, as also did New Jersey.  California, which earlier had voted not to pass upon the proposal, now voted to reject the amendment.  Thus 16 of the 37 states had rejected the proposed amendment.

             By spurious, nonrepresentative governments seven of the southern states which had theretofore rejected the proposed amendment under the duress of military occupation and of being denied representation in Congress did attempt to ratify the proposed Fourteenth Amendment.  The Secretary of State on July 20, 1868, issued his proclamation wherein he stated that it was his duty under the law to cause amendments to be published and certified as a part of the Constitution when he received official notice that they had been adopted pursuant to the Constitution.  Thereafter his certificate contained the following language:

             And whereas neither the act just quoted from, nor any other law, expressly or by conclusive implication, authorizes the Secretary of State to determine and decide doubtful questions as to the authenticity of the organization of State legislatures, or as to the power of any State legislature to recall a previous act or resolution of ratification of any amendment proposed to the Constitution;

             And whereas it appears from official documents on file in this Department that the amendment to the Constitution of the United States, proposed as aforesaid, has been ratified by the legislatures of the States of [naming 23, including New Jersey, Ohio, and Oregon];

             And whereas it further appears from documents on file in this Department that the amendment to the Constitution of the United States, proposed as aforesaid, has also been ratified by newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama;

             And whereas it further appears from official documents on file in this Department that the legislatures of two of the States first above enumerated, to wit, Ohio and New Jersey, have since passed resolutions respectively withdrawing the consent of each of said States to the aforesaid amendment; and whereas it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual for withdrawing the consent of the said two States, or of either of them, to the aforesaid amendment;

             And whereas the whole number of States in the United States is thirty-seven, to wit: [naming them];

             And whereas the twenty-three States first hereinbefore named, whose legislatures have ratified the said proposed amendment, and the six States next thereafter named, as having ratified the said proposed amendment by newly constituted and established legislative bodies, together constitute three fourths of the whole number of States in the United States;

             Now, therefore, be it known that I, WILLIAM H. SEWARD, Secretary of State of the United States, by virtue and in pursuant of the second section of the act of Congress, approved the twentieth of April, eighteen hundred and eighteen, hereinbefore cited, do hereby certify that if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid amendment are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of those States, which purport to withdraw the consent of said States from such ratification, then the aforesaid amendment has been ratified in the manner hereinbefore mentioned and so has become valid, to all intents and purposes, as a part of the Constitution  of the United States.

             Congress was not satisfied with the proclamation as issued an on the next day passed a concurrent resolution wherein it was resolved “that said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.”  Thereupon, William H. Seward, the Secretary of State, after setting forth the concurrent resolution of both houses of Congress, then certified that the “amendment has become valid to all intents and purposes as a part of the Constitution of the United States.”

            The Constitution of the United States is silent as to who should decide whether a proposed amendment has or has not been passed according to formal provisions of Article V of the Constitution.  The Supreme Court of the United States is the ultimate authority on the meaning of the Constitution and has never hesitated in a proper case to declare an act of Congress unconstitutional – except when the act purported to amend the Constitution.  The duty of the Secretary of State was ministerial, to wit, to count and determine when three fourths of the states had ratified the proposed amendment.  He could not determine that a state once having rejected a proposed amendment could thereafter approve it, nor could he determine that a state once having ratified that proposal could thereafter reject it.  The court and not Congress should determine such matters.  Consistency would seem to require that a vote once cast would be final or would not be final, whether the first vote was for ratification or rejection.

             In order to have 27 states ratify the Fourteenth Amendment, it was necessary to count those states which had first rejected and then under the duress of military occupation had ratified, and then also to count those states which initially ratified but subsequently rejected the proposal.

            To leave such a dishonest counting to a fractional part of Congress is dangerous in the extreme.  What is to prevent any political party having control of both houses of Congress from refusing to seat the opposition and then without more passing a joint resolution to the effect that the Constitution is amended and that it is the duty of the Administrator of the General Services Administration to proclaim the adoption?  Would the Supreme Court of the United States still say the problem was political and refuse to determine whether constitutional standards had been met?

             How can it be conceived in the minds of anyone that a combination of powerful states can by force of arms deny another state a right to have representation in Congress until it has ratified an amendment which its people oppose?  The Fourteenth Amendment was adopted by means almost as bad as that suggested above.