Secessionist No. 5

The Illegitimacy of the 14th Amendment

Some federalist and anti-secessionist will acquiesce to the logic and reasonableness of secession and independence movements in theory. They will tell you that the point is moot as it pertains to the nature of the United States government as that question was neatly answered not only by the failure of Southern forces to retain independence in the 1860’s but ultimately by the passage of the 14th Amendment.

The first point is frivolous. No matter of principle has ever been settled on the battlefield. Might does not make right. Might simply proves that might wins. It is the ugliest form or democratic expression; we have more so we get to have our way.

The 14th Amendment is a different case entirely. Taken at face value this amendment would seem to rob much of the steam from the idea of States’ Rights. Specifically, section 1 establishes United States citizens for the first time. Hitherto citizenship rested solely in the body of the states. The very act of stripping the states of their citizens and placing restrictions on the states as to their treatment of the new class of citizenry created under this act seem to remove from the people the power to express their will through the sovereignty of their state of citizenship.

The 14th Amendment changed the very face and nature of the Federal government. History lessons seldom term the enactment of this amendment as a transition from one form of government to another but that is exactly what occurred. The premise of the central government now having citizens in the various states and expanded power to manage and govern those citizens created a very different form of government. The enactment of the 14th Amendment was, in fact, the final act in the death of the old Constitutional Republic and the birth or a new form of government. No longer did states retain the authority for self-rule on items specifically reserved to them in the Constitution. No longer were the desires and wishes of the states considered relevant. Individuals became the property of the federal government. Soon the idea of direct taxation, forced federal military service and a myriad of other encroachments appear.

In very real terms the War Between the States was a rebellion. It was a successful rebellion and resulted in a new form of government coming to power. Our history books teach that the Confederacy was rebellious against Constitutional principles. It was, in fact, the reconstructionist that succeeded in laying to rest the old Constitutional principles and the old Republic and replacing it with a strong federal government of their liking. The forces of the Federal Union and their masters in the Republican-held Congress and White House were the revolutionaries.  The enactment of the 14th Amendment was the mechanism that gave teeth and power to this new government.

While federalist may wave the 14th Amendment and shout that this is the end of secession we hold up that document and proclaim it to be the primary justification for secession. It is on its face a bad amendment that contradicts the very principles of States Rights and checks on the power of the Federal government that were so carefully crafted into the Constitution. If this amendment were ratified in the ways and means properly set aside in the Constitution we would disagree with it and wish to see it amended. However, this amendment was not ratified; it was enacted contrary to all proper principles. It is in fact illegitimate.

When this amendment was proposed there were thirty-seven states in the Union. This was of course during reconstruction and the thirteen states of the Confederacy were for all practical purposes not part of the Union. To avoid the indelicate position of declaring these states outside the Union when a war had just been fought to declare it impossible for them to leave the amendment was sent to all thirty-seven states. (What a peculiar position for the Republicans to find themselves in.  If the states could leave the Union then they could not vote on the Amendment.  If they could not leave the Union then they could vote and would vote not to ratify it.  That is what one might rightly call a conundrum.)

In 1866 the state's answer on the amendment was received in Washington. Of the twenty-eight states needed to ratify twenty-two voted for and thirteen voted against. The amendment was thus rejected according to the guidelines set forth in the Constitution. Ah yes, but this did not fit well with the notion of reshaping the Federal Union held by the Republicans.  The answer, kick the Congressional delegates from the dissenting states out of Congress.

Dissatisfied with this outcome the Congress; composed solely of representatives from the states that supported the amendment, declared that the thirteen Southern states that comprised the Confederacy were outside of the Union. It is ironic that by legislative fiat the Congress accomplished what the Lincoln administration declared illegal just five years before. By ejecting the thirteen Southern states from the Union, the amendment was easily able to be ratified by the remaining states. Six-hundred thousand Americans died fighting over the issue of whether a state could leave the Union.  In the name of political expediency a radical congress settled the issue squarely, a state could leave the Union.

Easily ratified is probably too strong of a term. After Congress’ action to eject the South from the Union Ohio, New Jersey and Oregon rescinded their ratifications of the amendment.

The South was faced with an impossible choice at this juncture. After being denied the right to leave the Union on their own volition the Federal Congress had ejected them and required acceptance of the new Constitution as a prerequisite for reentry. Faced with the option of perpetual occupation and the hope for partial autonomy each of the states eventually accepted the Constitution that was forced upon them, complete with the loss of their citizens.

Under such circumstances where is the consent of the governed? Where is the contract between the government and the people? Where is the de jure government?  How can this be legal? The 14th Amendment created a very different Federal government with greatly expanded powers, this is a de facto government.  It exists outside of law.
Clearly, the amendment was never legally ratified; rather it was enacted and then forced upon an occupied people. Coercion and democracy do not make good bedfellows.

The issue of the illegitimacy of the 14th Amendment is not one of North versus South. This is an issue of Constitutional principles and the legitimacy of government to govern. It is an issue that goes to the very heart of a government under the law. The methods used to enact this amendment and the tactics of extortion used to force the acceptance of states and people opposed to it are pages torn directly from the history of any empire. The (il)legitimacy of the entire federal government rests on this action.

This is not a government of the people nor has it lived up to the original compact that gave it birth. The illegal and illegitimate enactment of the 14th Amendment is justification number one for secession and the establishment of a form of government of the people, under law and respectful of the sovereignty of the various states.

Recedite, plebes! Gero rem imperialem
El Cid

The Calhoun Institute