Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (23 page)

Legal Latinisms

Habeas corpus: Latin for "you have the
body." The primary function of a writ of
habeas corpus is to release someone from
unlawful imprisonment. It directs the person holding a prisoner to either justify the
detention to a court or release him.

As the amendment wended its way toward "ratification," three northern states that had ratified it rescinded their ratifications. In the South,
every state except Tennessee at first voted not to ratify, then changed their
votes under congressional threat. Only Mississippi held out.

In Tennessee, when opponents of the Fourteenth Amendment
absented themselves from the state house-in order to deny proponents
a quorum-two absent members were arrested. They secured a court
order that they be released pursuant to a writ of habeas corpus, but the
House ignored the writ, held them in a cloakroom, overruled the House
Speaker's decision that they were not present, and voted to ratify the
amendment.

In Oregon, the Republicans had a clear majority in the Senate but only
a narrow one in the state's House of Representatives. Two Republican representatives whose elections had been challenged were seated, and they
accounted for the margin of ratification. Their seats were later awarded
to Democrats, and ratification was rescinded.

By the time the first southern states took up the matter, five northern
states had "ratified." Texas led the way among southern states: the Texas
Senate voted no by twenty-seven to one, and the House joined in by seventy to five. Two weeks later, Georgia's Senate voted no unanimously; its
House had only two aye votes. Florida, Arkansas, and the Carolinas
joined in by similar-or even greater-margins. (In Florida, both houses
were unanimous in rejecting the amendment.)

California's governor refused to call a special session to consider the
matter. Virginia, Alabama, Mississippi, Louisiana, Kentucky, and
Delaware all added their votes to the nay column. Maryland followed
next. Ohio and New Jersey would soon rescind their ratifications.

In March 1867, Congress used the Reconstruction Act to extort ratification of the Fourteenth Amendment. State ratification of the Fourteenth
Amendment, Congress declared, must precede readmission of the states
to the Union; until that had been achieved, there were "no legal state governments" in the South. Oddly, this pronouncement applied even to the
six former Confederate states whose votes had counted toward ratification of the Thirteenth Amendment. It also overturned Lincoln's entire
rationale for the war-that the southern states had never actually
seceded, because they could not do so. Congress now said that they had
seceded, which meant that the "civil war" had really been a war of conquest against a foreign country (the Confederacy), and Congress could
now set the terms by which the Confederacy's states could be forcibly
returned to the Union.

Meanwhile, in Ex parte Milligan (1866), the Supreme Court greatly
restricted the ability of the executive branch to enforce its will in
wartime. Lambdin P. Milligan had been charged with conspiring to seize
federal munitions and to free Confederate prisoners. Justice David Davis,
for the unanimous Court, said that the Constitution was not suspended
in wartime, but applied "equally in time of war and peace." Thus trials
before military commissions such as Milligan had received in Indianawell behind Union lines, well away from the war zone-fell afoul of the
Constitution's requirements that suspects be indicted before trial and that
they be tried publicly before juries so long as civilian courts were functioning.

The relevance of this decision to the ratification of the Fourteenth
Amendment lies in its recognition that the chief executive is not empowered by the Constitution to extort whatever he wants from the citizenry
or the states. Just calling a state a military district (as the southern states
were designated by the federal government) did not give Republicans
carte blanche to dub the Constitution "amended." President Johnson, for
his part, called Congress's action-forcing southern approval of the Fourteenth Amendment by putting congressional representation at riskan unconstitutional bill of attainder (declaring someone guilty without a
trial) against the nine million people living in the southern states. It was
more than that. As Wisconsin senator James Doolittle put it, "The people
of the South have rejected the constitutional amendment," so the North
would "march upon them and force them to
adopt it at the point of the bayonet." They
would remain under military dictatorship,
Doolittle said, "until they do adopt it."

Milligan asked the Supreme Court to
block Congress's political blackmail, and the
Court replied that before any court issued a
ruling, "the rights in danger... must be
rights of persons or property, not merely
political rights, which do not belong to the
jurisdiction of a court."

And so the Fourteenth Amendment was
"ratified." As Forrest McDonald puts it,
"Despairing of stopping the congressional juggernaut, ruled by military
commanders who removed governors and judges at will, and swept by
rumors that Congress intended to confiscate and redistribute their property (as some Radicals indeed did), the southern states began to capitulate."

Arkansas voted to ratify the amendment by April 6, 1868-although it
still had not been recognized by Congress as having a valid government
under the 1867 act. Next came Florida, which decided, in its own words,
"as dictated by the Acts of Congress as conditions precedent to admission," to ratify on June 9. Congress recognized that the Florida legislature
had ratified the amendment with language different from the congressionally proposed version. But when it noticed that New York, Pennsylvania,
Michigan, and Wisconsin had done the same, Congress decided to accept Florida's ratification as valid and ignore the sometimes marked differences among the versions the states had approved!

The South Was Right

The southern states had every right to
secede in 1860-1861. In fact, Virginia,
Maryland, and Rhode Island had ratified
the Constitution on the explicit understanding that they could withdraw
from it.

Congress next decided, on June 25, 1868, that the remaining southern
states would be entitled to statehood once they ratified the amendment.
But, of course, only a state can ratify an amendment. Soon enough, North
Carolina, South Carolina, Louisiana, and Alabama had "ratified." Secretary of State William H. Seward then proclaimed that the amendment had
been ratified.

Thus, the Fourteenth Amendment was never constitutionally proposed to the states by Congress and never constitutionally ratified by the
states, and yet today it stands (after the Constitution's structural provisions) as the most significant part of the American legal system. As we
will see, when Americans think of, for example, their First Amendment
rights, the supposed rights they have in mind are almost always actually
their Fourteenth Amendment Due Process Clause rights-rights that
come from an unratified amendment.

A case concerning the constitutionality of the Republican rump Congress's Reconstruction methods made its way to the Supreme Court in
1869. That case, Ex parte McCardle, arose from the military arrest of a
Vicksburg, Mississippi, newspaper editor. William McCardle had dared
criticize the Reconstruction Acts as unconstitutional, which was not
allowed in occupied Mississippi. He requested a writ of habeas corpus of
a federal court in Mississippi, which rejected his request, so he turned to
the Supreme Court. Congress, fearing that its unconstitutional treatment
of the South might well be struck down, at least in this particular, passed
a law removing the Supreme Court's power to hear such appeals.

On the same day, in Texas v. White, the Court declared that the Constitution "looks to an indestructible Union, composed of indestructible
states," and ruled that in fact Texas had never seceded, and that Texans
had been wrong to think otherwise. The ruling was five to three, with the
majority decision issued by Chief Justice Salmon P. Chase, a former Lincoln cabinet member (who arguably should have recused himself)
whose logic was less than convincing. Its constitutional basis was in Article IV's statement that "the United States shall guarantee to every State
in this Union a Republican Form of Government." Allegedly this proved
that the Constitution supposed "an indestructible Union." The Latin
phrase for such decisions is ipse dixit: asserted but not proved. Chase's
decision nevertheless had the force of law.

The following year, the states ratified the
Fifteenth Amendment, which eliminated
restrictions of the right to vote based on
"race, color, or previous condition of servitude." One little-noticed but important
aspect of the Fifteenth Amendment is that it
effectively overturned Section 2 of the Fourteenth Amendment. That section penalized
states by reducing their congressional representation if they denied people the right to
vote. The Fourteenth Amendment, then, did not ban all discrimination,
a distinction that will be important later.

The Court's first pass at interpreting the Fourteenth Amendment came
in the Slaughterhouse Cases of 1873. The issue before the Court was the
extent to which the Fourteenth Amendment had remade American federalism; its decision was "not much."

The appellants in the case were white butchers from the area around
New Orleans, Louisiana. As Ronald M. Labbe and Jonathan Lurie make
clear in The Slaughterhouse Cases: Regulation, Reconstruction, and the
Fourteenth Amendment, the Court faced a stark choice: bring virtually
every area of state lawmaking under the supervision of federal courts, or
not. The justices decided not to.

The butchers claimed that a state law confining butchering to one location in the New Orleans region affected them in four negative ways:

Legal Latinisms

De facto: Latin for "in fact, indeed, actually." Used to characterize something or
someone present in fact, but illegal or
illegitimate.

1. It created an involuntary servitude in violation of the Thirteenth Amendment.

2. It deprived them of "privileges or immunities of citizens of
the United States" in violation of Section 1 of the Fourteenth
Amendment.

3. It denied them the equal protection of the laws in violation of
Section 1 of the Fourteenth Amendment.

4. It deprived them of property without due process of law
despite Section 1 of the Fourteenth Amendment.

The Court easily rejected the idea that the butchers' plight resembled
slavery, so the state law itself did not violate the Thirteenth Amendment.
But when it came to allegedly violating the butchers' "privileges or
immunities of citizens of the United States," the Court noted that the
Fourteenth Amendment retained a distinction between state and federal
citizenship, and thus deduced that not all rights enjoyed by Americans
were rights they had as citizens of the United States; some areas of law
were still provinces of the several states. The Court recognized that to call
a right "federal" would mean that the power of the federal courts over the
states would expand. Surprisingly, the Court limited its supervisory
power.