Constitutional FAQ Answer #119 – The U.S. Constitution Online – USConstitution.net

Constitutional FAQ Answer #119

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Q119. “‘Lost Cause’ revisionists claim that the
Fourteenth Amendment was a hatchet-job,
illegally passed, and, therefore, quite unconstitutional. Can you help me
answer this charge?”

A. Lots of people, for whatever reason (Lost Cause
supporters or not) think that the 14th was illegally passed. The surest answer
to the charge is that the amendment could have been challenged any time since
1868, and was not. The admitted blackmail that the United States exerted on the
former Confederate states to ratify the 14th may have been questionable, but it
is undeniable that the states all ratified it. There is also nothing in the
Constitution that says that states or the federal government cannot exert
pressure on another state to ratify an amendment. Again, the tactics may have
been questionable in several cases, but not unconstitutional.

One argument is that some states rescinded ratification after they ratified
and before full ratification. This has been the subject of some debate, but
there has been a general constitutional argument that once a state ratifies an
amendment, it cannot be unratified. Some focus on Ohio and New Jersey, which
rescinded prior to July 9, 1868, the official date of ratification. However,
Alabama, Georgia, and Virginia all ratified within a few months — even if
these rescissions counted, which is debatable, the ratifications by Alabama and
Georgia would have been enough to meet the requirement. The latest, then, the
amendment could have been seen as ratified is July 21, 1868 instead of July 9,

Of course, at the time, the rescissions of the Ohio and New Jersey were
noted, and rejected as invalid. The Secretary of State and Congress of the
time listed both as having ratified and were included in the list of ratifying
states. Now, these facts may not bolster your argument, but they do give you
information that the other side will probably try to use. The other key point
to note is that the Supreme Court has had, literally, hundreds of opportunities
since 1868 to rule that the 14th is not a valid amendment but, indeed, it has
used the 14th to greatly expand the protections of the people from government
intrusion on civil rights.

Last Modified: 1 Feb 2011

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