Dan Smoot was a leading patriot, author, and constitutional scholar of the 1950s, 1960s and early 1970s.
Listening to the Dan Smoot Report when I was in high school was my first major source of information about honest history, economics and an Americanist perspective of the Constitution which has guided my thoughts through the years.
Here is a sample of the Dan Smoot Report as introduced by patriot G. Edward Griffin. It is about 1.5 hours long. ⇒
The Following commentary appeared on Barefoot's World:
The following is a treatise on the unconstitutionality of the Fourteenth Amendment, based upon the most comprehensive research and documentation of every angle in the unlawful procedures involved in its purported adoption.
This work was done, and is offered with a realization that the federal courts are not ready to give consideration to the subject, because the U. S. Supreme Court and inferior courts have used the the 14th Amendment to enlarge upon their ungranted powers without limit or reserve.
Socialist organized and directed violent mass demonstrations and armed rebellion in the nation's capital and in many American cities are extorting from Congress more and more radical legislation. These "laws" threaten basic personal freedom, private property rights and encroach upon and destroy more and more the constitutional right of self-government by the people on state and local levels. Executive orders extend toward further federal control of every aspect of life in the Nation, either by shutting off federal funds to those who will not subscribe to their forced dictums or by court injunctive orders to the same effect.
There lies the greatest danger to our country's future: so that the end result in the next or succeeding generation can only be a deteriorated industrial empire and a weakened national defense, which must result in abject surrender to our mortal enemy,-- world-wide Socialism and Totalitarianism. That is the ultimate end of the subversive use of the unconstitutional 14th Amendment.
It is hoped that this treatise, exposing the absolute unconstitutionality of the l4th amendment, will be given sufficient general circulation and publicity to awaken a "consensus" of public sentiment to reach the seats of power in Washington, D. C., so that ultimately the stamp of unconstitutionality may be placed upon the 14th amendment, and constitutional government and national sanity once more may prevail.
Cites and References:
Senate, 84th Con. 1st Session., Vol. 101, pp. 7119 to 7124;
Senate, 86th Con., 2nd Session., Vol. 106, pp. 4036 to 4038;
Senate, 89th Con., 1st Session., Vol. III, pp. 10669 to 10671.
The purported 14th Amendment to the United States Constitution is and should be held to be ineffective, invalid, null, void and unconstitutional for the following reasons:
1. The Joint Resolution proposing said amendment was not submitted to or adopted by a Constitutional Congress per Article I, Section 3, and Article V of the U. S. Constitution.
2. The Joint Resolution was not submitted to the President for his approval as required by Article I, Section 7 of the U. S. Constitution.
3. The proposed 14th Amendment was rejected by more than one-fourth of all the States then in the Union, and it was never ratified by three-fourths of all the States in the Union as required by Article V of the U. S. Constitution.
THE UNCONSTlTUTIONAL CONGRESS
The U. S. Constitution provides:
Article I, Section 3. "The Senate of the United States shall be composed of two Senators from each State"
Article V provides: "No State, without its consent, shall be deprived of its equal suffrage in the Senate."
The fact that 28 Senators had been unlawfully excluded from the U. S. Senate, in order to secure a two-thirds vote for adoption of the Joint Resolution proposing the 14th Amendment is shown by Resolutions of protest adopted by the following State Legislatures:
The New Jersey Legislature by Resolution of March 27, 1868, protested as follows:
"The said proposed amendment not having yet received the assent the three-fourths of the states, which is necessary to make it valid, the natural and constitutional right of this state to withdraw its assent is undeniable ".
"That it being necessary by the constitution that every amendment to the same should be proposed by two-thirds of both houses of congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven states of the union, upon the pretence that there were no such states in the Union: but, finding that two-thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States senate, and without any pretext or justification, other than the possession of the power, without the right, and in palpable violation of the constitution, ejected a member of their own body, representing this state, and thus practically denied to New Jersey its equal suffrage in the senate, and thereby nominally secured the vote of two-thirds of the said houses." [Cite 1]
The Alabama Legislature protested against being deprived of representation in the Senate of the U. S. Congress. [Cite 2]
The Texas Legislature by Resolution on October 15, 1866, protested as follows:
"The amendment to the Constitution proposed by this joint resolution as article XIV is presented to the Legislature of Texas for its action thereon, under Article V of that Constitution. This article V, providing the mode of making amendments to that instrument, contemplates the participation by all the States through their representatives in Congress, in proposing amendments. As representatives from nearly one-third of the States were excluded from the Congress proposing the amendments, the constitutional requirement was not complied with; it was violated in letter and in spirit; and the proposing of these amendments to States which were excluded from all participation in their initiation in Congress, is a nullity." [Cite 3]
The Arkansas Legislature, by Resolution on December 17, 1866, protested as follows:
"The Constitution authorized two-thirds of both houses of Congress to propose amendments; and, as eleven States mere excluded from deliberation and decision upon the one now submitted, the conclusion is inevitable that it is not proposed by legal authority, but in palpable violation of the Constitution." [Cite 4]
The Georgia Legislature, by Resolution on November 9, 1866, protested as follows:
"Since the reorganization of the State government, Georgia has elected Senators and Representatives. So has every other State. They have been arbitrarily refused admission to their seats, not on the ground that the qualifications of the members elected did not conform to the fourth paragraph, second section, first article of the Constitution, but because their right of representation was denied by a portion of the States having equal but not greater rights than themselves. They have in fact been forcibly excluded; and, inasmuch as all legislative power granted by the States to the Congress is defined, and this power of exclusion is not among the powers expressly or by implication, the assemblage, at the capitol, of representatives from a portion of the States, to the exclusion of the representatives of another portion, cannot be a constitutional Congress, when the representation of each State forms an integral part of the whole.
This amendment is tendered to Georgia for ratification, under that power in the Constitution which authorizes two-thirds of the Congress to propose amendments. We have endeavored to establish that Georgia had a right, in the first place, as a part of the Congress, to act upon the question, 'Shall these amendments be proposed?' Every other excluded State had the same right.
The first constitutional privilege has been arbitrarily denied.
Had these amendments been submitted to a constitutional Congress, they never would have been proposed to the States. Two-thirds of the whole Congress never would have proposed to eleven States voluntarily to reduce their political power in the Union, and at the same time, disfranchise the larger portion of the intellect, integrity and patriotism of eleven co-equal States." [Cite 5]
The Florida Legislature, by Resolution of December 5, 1866, protested as follows:
"Let this alteration be made in the organic system and some new and more startling demands may or may not be required by the predominant party previous to allotting the ten States now unlawfully and unconstitutionally deprived of their right of representation to enter the Halls of the National Legislature. Their right to representation is guaranteed by the Constitution of this country and there is no act, not even that of rebellion, can deprive them of its exercise." [Cite 6]
The South Carolina Legislature by Resolution of November 27, 1866, protested as follows:
"Eleven of the Southern States, including South Carolina, are deprived of their representation in Congress. Although their Senators and Representatives have been duly elected and have presented themselves for the purpose of taking their seats, their credentials have, in most instances, been laid upon the table without being read, or have been referred to a committee, who have failed to make any report on the subject. In short, Congress has refused to exercise its Constitutional functions, and decide either upon the election, the return, or the qualification of these selected by the States and people to represent us. Some of the Senators and Representatives from the Southern States were prepared to take the test oath, but even these have been persistently ignored, and kept out of the seats to which they were entitled under the Constitution and laws.
Hence this amendment has not been proposed by 'two-thirds of both Houses' of a legally constituted Congress, and is not, Constitutionally or legitimately, before a single Legislature for ratification." [Cite 7]
The North Carolina Legislature protested by Resolution of December 6, 1866 as follows:
"The Federal Constitution declares, in substance, that Congress shall consist of a House of Representatives, composed of members apportioned among the respective States in the ratio of their population, and of a Senate, composed of two members from each State. And in the Article which concerns Amendments, it is expressly provided that 'no State, without its consent, shall be deprived of its equal suffrage in the Senate.' The contemplated Amendment was not proposed to the States by a Congress thus constituted. At the time of its adoption, the eleven seceding States were deprived of representation both in the Senate and House, although they all, except the State of Texas, had Senators and Representatives duly elected and claiming their privileges under the Constitution. In consequence of this, these States had no voice on the important question of proposing the Amendment. Had they been allowed to give their votes, the proposition would doubtless have failed to command the required two-thirds majority.
If the votes of these States are necessary to a valid ratification of the Amendment, they were equally necessary on the question of proposing it to the States; for it would be difficult, in the opinion of the Committee, to show by what process in logic, men of intelligence could arrive at a different conclusion." [Cite 8]
JOlNT RESOLUTlON INEFFECTIVE
Article I, Section 7 of the United States Constitution provides that not only every bill which shall have been passed by the House of Representatives and the Senate of the United States Congress, but that:
"Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." [Art I, Sect. 7]
The Joint Resolution proposing the 14th Amendment [Cite 9] was never presented to the President of the United States for his approval, as President Andrew Johnson stated in his message on June 22, 1866. [Cite 10]
Therefore, the Joint Resolution did not take effect.
PROPOSED AMENDMENT NEVER RATlFIED BY THREE-FOURTHS OF THE STATES
1. Pretermitting the ineffectiveness of said resolution, as above, fifteen (15) States out of the then thirty-seven (37) States of the Union rejected the proposed 14th Amendment between the date of its submission to the States by the Secretary of State on June 16, 1866 and March 24, 1868, thereby further nullifying said resolution and making it impossible for its ratification by the constitutionally required three-fourths of such States, as shown by the rejections thereof by the Legislatures of the following states:
Texas rejected the 14th Amendment on Oct. 27, 1866. [Cite 11]
Georgia rejected the 14th Amendment on Nov. 9, 1866. [Cite 12]
Florida rejected the 14th Amendment on Dec. 6, 1866. [Cite 13]
Alabama rejected the 14th Amendment on Dec. 7, 1866. [Cite 14]
North Carolina rejected the 14th Amendment on Dec. 14, 1866. [Cite 15]
Arkansas rejected the 14th Amendment on Dec. 17, 1866. [Cite 16]
South Carolina rejected the 14th Amendment on Dec. 20, 1866. [Cite 17]
Kentucky rejected the 14th Amendment on Jan. 8, 1867. [Cite 18]
Virginia rejected the 14th Amendment on Jan. 9, 1867. [Cite 19]
Louisiana rejected the 14th Amendment on Feb. 6, 1867. [Cite 20]
Delaware rejected the 14th Amendment on Feb. 7, 1867. [Cite 21]
Maryland rejected the l4th amendment on Mar. 23, 1867. [Cite 22]
Mississippi rejected the 14th Amendment on Jan. 31, 1867. [Cite 23]
Ohio rejected the 14th amendment on Jan. 16, 1868. [Cite 24]
New Jersey rejected the 14th Amendment on Mar. 24, 1868. [Cite 25]
There was no question that all of the Southern states which rejected the 14th Amendment had legally constituted governments, were fully recognized by the federal government, and were functioning as member states of the Union at the time of their rejection.
President Andrew Johnson, in his Veto message of March 2, 1867, [Cite 26] pointed out that:
"It is not denied that the States in question have each of them an actual government with all the powers, executive, judicial and legislative, which properly belong to a free State. They are organized like the other States of the Union, and, like them they make, administer, and execute the laws which concern their domestic affairs."
If further proof were needed that these States were operating under legally constituted governments as member States in the Union. the ratification of the 13th Amendment by December 8, 1865 undoubtedly supplies this official proof. If the Southern States were not member States of the Union, the 13th amendment would not have been submitted to their Legislatures for ratification.
2. The 13th Amendment to the United States Constitution was proposed by Joint Resolution of Congress [Cite 27] and was approved February 1, 1865 by President Abraham Lincoln, as required by Article I, Section 7 of the United States Constitution. The President's signature is affixed to the Resolution.
The 13th Amendment was ratified by 27 states of the then 36 states of the Union, including the Southern States of Virginia, Louisiana, Arkansas, South Carolina, Alabama, North Carolina and Georgia. This is shown by the Proclamation of the Secretary of State December 18, 1865. [Cite 28] Without the votes of these 7 Southern State Legislatures the 13th Amendment would have failed. There can be no doubt but that the ratification by these 7 Southern States of the 13th Amendment again established the fact that their Legislatures and State governments were duly and lawfully constituted and functioning as such under their State Constitutions.
3. Furthermore, on April 2, 1866, President Andrew Johnson issued a proclamation that,
"the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi and Florida is at an end, and is henceforth to be so regarded." [Cite 29]
On August 20, 1866, President Andrew Johnson issued another proclamation [Cite 30] pointing out the fact that the House of Representatives and Senate had adopted identical Resolutions on July 22nd [Cite 31] and July 26th, 1861, [Cite 32] that the Civil War forced by disunionists of the Southern States, was not waged for the purpose of conquest or to overthrow the rights and established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all equality and rights of the several states unimpaired, and that as soon as these objects ere accomplished, the war ought to cease. The President's proclamation on June 13, 1866, declared the insurrection in the State of Tennessee had been suppressed. [Cite 33] The President's proclamation on April 2, 1866, [Cite 34] declared the insurrection in the other Southern States, except Texas, no longer existed. On August 20, 1866, [Cite 35] the President proclaimed that the insurrection in the State of Texas had been completely ended; and his proclamation continued:
"the insurrection which heretofore existed in the State of Texas is at an end, and is to be henceforth so regarded in that State, as in the other States before named in which the said insurrection was proclaimed to be at an end by the aforesaid proclamation of the second day of April, one thousand, eight hundred and sixty-six.
And I do further proclaim that the said insurrection is at an end, and that peace, order, tranquillity, and civil authority now exist, in and throughout the whole of the United States of America."
4. When the State of Louisiana rejected the 14th Amendment on February 6, 1867, making the 10th state to have rejected the same, or more than one-fourth of the total number of 36 states of the Union as of that date, thus leaving less than three-fourths of the states possibly to ratify the same, the Amendment failed of ratification in fact and in law, and it could not have been revived except by a new Joint Resolution of the Senate and House of Representatives in accordance with Constitutional requirement.
5. Faced with the positive failure of ratification of the 14th Amendment, both Houses of Congress passed over the veto of the President three Acts known as Reconstruction Acts, between the dates of March 2 and July 19, 1867, especially the third of said Acts, 15 Stat. p. 14 etc., designed illegally to remove with "Military force" the lawfully constituted State Legislatures of the 10 Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana and Texas. In President Andrew Johnson's Veto message on the Reconstruction Act of March 2, 1867, [Cite 36] he pointed out these unconstitutionalities:
"If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live. That work is his work, and it cannot properly be taken out of his hands. All this legislation proceeds upon the contrary Assumption that the people of each of these States shall have no constitution, except such as may be arbitrarily dictated by Congress, and formed under the restraint of military rule. A plain statement of facts makes this evident.
In all these States there are existing constitutions, framed in the accustomed way by the people. Congress, however, declares that these constitutions are not 'loyal and republican,' and requires the people to form them anew. What, then, in the opinion of Congress, is necessary to make the constitution of a State 'loyal and republican?' The original act answers the question: 'It is universal negro suffrage, a question which the federal Constitution leaves exclusively to the States themselves. All this legislative machinery of martial law, military coercion, and political disfranchisement is avowedly for that purpose and none other. The existing constitutions of the ten States conform to the acknowledged standards of loyalty and republicanism. Indeed, if there are degrees in republican forms of government, their constitutions are more republican now, than when these States - four of which were members of the original thirteen - first became members of the Union."
In President Andrew Johnson's Veto message on the Reconstruction Act on July 19, 1867, he pointed out various unconstitutionalities as follows:
"The veto of the original bill of the 2d of March was based on two distinct grounds, the interference of Congress in matters strictly appertaining to the reserved powers of the States, and the establishment of military tribunals for the trial of citizens in time of peace.
A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by federal officers, who are to perform the very duties on its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal State government by the same federal agency.
It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.
During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have peen divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be districted. The last act on this subject was passed July 28, 1866, by which every one of these ten States was arranged into districts and circuits.
They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment - seven of which votes were given by seven of these ten States - it was proclaimed to be apart of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.
As to the other constitutional amendment having reference to suffrage, it happens that these States have not accepted it. The consequence is, that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States.
Again, in the machinery of the internal revenue laws, all these States are districted, not as 'Territories,' but as 'States.'
So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States.
To me these considerations are conclusive of the unconstitutionality of this part of the bill now before me, and I earnestly commend their consideration to the deliberate judgment of Congress.
Within a period less than a year the legislation of Congress has attempted to strip the executive department of the government of some of its essential powers. The Constitution, and the oath provided in it, devolve upon the President the power and duty to see that the laws are faithfully executed. The Constitution, in order to carry out this power, gives him the choice of the agents, and makes them subject to his control and supervision. But in the execution of these laws the constitutional obligation upon the President remains, but the powers to exercise that constitutional duty is effectually taken away. The military commander is, as to the power of appointment, made to take the place of its President, and the General of the Army the place of the Senate; and any attempt on the part of the President to assert his own constitutional power may, under pretence of law, be met by official insubordination. It is to be feared that these military officers, looking to the authority given by these laws rather than to the letter of the Constitution, will recognize no authority but the commander of the district and the General of the army.
If there were no other objection than this to this proposed legislation, it would be sufficient."
No one can contend that the Reconstruction Acts were ever upheld as being valid and constitutional.
They were brought into question, but the Courts either avoided decision or were prevented by Congress from finally adjudicating upon their constitutionality.
In Mississippi v. President Andrew Johnson, (4 Wall. 475-502), where the suit sought to enjoin the President of the United States from enforcing provisions of the Reconstruction Acts, the U. S. Supreme Court held that the President cannot be enjoined because for the Judicial Department of the government to attempt to enforce the performance of the duties by the President might be justly characterized, in the language of Chief Justice Marshall, as "an absurd and excessive extravagance." The Court further said that if the Court granted the injunction against enforcement of the Reconstruction Acts, and if the President refused obedience, it is needless to observe that the Court is without power to enforce its process.
AND NOW TO THE COURT.
In a joint action, the states of Georgia and Mississippi brought suit against the President and the Secretary of War, (6 Wall. 50-78, 154 U.S. 554).
The Court said that:
"The bill then sets forth that the intent and design of the acts of Congress, as apparent on their face and by their terms, are to overthrow and annul this existing state government, and to erect another and different government in its place, unauthorized by the Constitution and in defiance of its guaranties; and that, in furtherance of this intent and design, the defendants, the Secretary of War, the General of the Army, and Major-General Pope, acting under orders of the President, are about setting in motion a portion of the army to take military possession of the state, and threaten to subvert her government and subject her people to military rule; that the state is holding inadequate means to resist the power and force of the Executive Department of the United States; and she therefore insists that such protection can, and ought to be afforded by a decree or order of his court in the premises."
The applications for injunction by these two states to prohibit the Executive Department from carrying out the provisions of the Reconstruction Acts directed to the overthrow of their government, including the dissolution of their state legislatures, were denied on the grounds that the organization of the government into three great departments, the executive, legislative and judicial, carried limitations of the powers of each by the Constitution. This case went the same way as the previous case of Mississippi against President Johnson and was dismissed without adjudication upon the constitutionality of the Reconstruction Acts.
In another case, ex parte William H. McCardle (7 Wall. 506-515), a petition for the writ of habeas corpus for unlawful restraint by military force of a citizen not in the military service of the United States was before the United States Supreme Court. After the case was argued and taken under advisement, and before conference in regard to the decision to be made, Congress passed an emergency Act, (Act March 27, 1868, 15 Stat. at L. 44), vetoed by the President and re-passed over his veto, repealing the jurisdiction of the U. S. Supreme Court in such case. Accordingly, the Supreme Court dismissed the appeal without passing upon the constitutionality of the ReconstructionActs, under which the non-military citizen was held by the military without benefit of writ of habeas corpus, in violation of Section 9, Article I of the U. S. Constitution which prohibits the suspension of the writ of habeas corpus.
That Act of Congress placed the Reconstruction acts beyond judicial recourse and avoided tests of constitutionality.
It is recorded that one of the Supreme Court Justices, Grier, protested against the action of the Court as follows:
"This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights, not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for legislative interposition to supersede our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say... I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted."
The ten States were organized into Military Districts under the unconstitutional "Reconstruction Acts," their lawfully constituted Legislatures illegally were removed by "military force," and they were replaced by rump, so-called Legislatures, seven of which carried out military orders and pretended to ratify the 14th Amendment, as follows:
Arkansas on April 6, 1868; [Cite 38]
North Carolina on July 2, 1868; [Cite 39]
Florida on June 9, 1868; [Cite 40]
Louisiana on July 9, 1868; [Cite 41]
South Carolina on July 9, 1868; [Cite 42]
Alabama on July 13, 1868; [Cite 43]
Georgia on July 21, 1868. [Cite 44]
6. Of the above 7 States whose Legislatures were removed and replaced by rump, so-called Legislatures, six (6) Legislatures of the States of Louisiana, Arkansas, South Carolina, Alabama, North Carolina and Georgia had ratified the 13th amendment, as shown by the Secretary of State's Proclamation of December 18, 1865, without which 6 States' ratifications, the 13th Amendment could not and would not have been ratified because said 6 States made a total of 27 out of 36 States or exactly three-fourths of the number required by Article V of the Constitution for ratification.
Furthermore, governments of the States of Louisiana and Arkansas had been re-established under a Proclamation issued by President Abraham Lincoln December 8, 1863. [Cite 45]
The government of North Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated May 29, 1865. [Cite 46]
The government of Georgia had been re-established under a proclamation issued by President Andrew Johnson dated June 17, 1865. [Cite 47]
The government of Alabama had been re-established under a Proclamation issued by President Andrew Johnson dated June 21, 1865. [Cite 48]
The government of South Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated June 30, 1865. [Cite 49]
These three "Reconstruction Acts" [Cite 50] under which the above State legislatures were illegally removed and unlawful rump or puppet so-called Legislatures were substituted in a mock effort to ratify the 14th amendment, were unconstitutional, null and void, ab initio, and all acts done thereunder were also null and void, including the purported ratification of the l4th Amendment by said 6 Southern puppet State Legislatures of Arkansas, North Carolina, Louisiana, South Carolina, Alabama and Georgia.
Those Reconstruction Acts of Congress and all acts and thing unlawfully done thereunder were in violation of Article IV, Section 4 of the United States Constitution, which required the United States to guarantee every State in the Union a republican form of government. They violated article I, Section 3, and article V of the Constitution, which entitled every State in the Union to two Senators, because under provisions of these unlawful acts of Congress, 10 States were deprived of having two Senators, or equal suffrage in the Senate.
7. The Secretary of State expressed doubt as to whether three-fourths of the required states had ratified the 14th Amendment, as shown by his Proclamation of July 20, 1868. [Cite 51] Promptly on July 21, 1868, a Joint Resolution [Cite 52] was adopted by the Senate and House of Representatives declaring that three-fourths of the several States of the Union had ratified the 14th Amendment. That resolution, however, included purported ratifications by the unlawful puppet Legislatures of 5 States, Arkansas, North Carolina, Louisiana, South Carolina and Alabama, which had previously rejected the 14th Amendment by action of their )awful)y constituted Legislatures, as above shown. This Joint Resolution assumed to perform the function of the Secretary of State in whom Congress, by Act of April 20, 1818, had vested the function of issuing such proclamation declaring the ratification of Constitutional Amendments.
The Secretary of State bowed to the action of Congress and issued his Proclamation of July 28, 1868, [Cite 53] in which he stated that he was as acting under authority of the Act of April 20, 1818, but pursuant to said Resolution of July 21, 1868. He listed three-fourths or so of the then 37 states as having ratified the 14th Amendment, including the purported ratification of the unlawful puppet Legislatures of the States of Arkansas, North Carolina, Louisiana, South Carolina and Alabama. Without said 6 unlawful purported ratifications there would have been only 26 states left to ratify out of 37 when a minimum of 28 states was required for ratification by three-fourths of the States of the Union.
The Joint Resolution of Congress and the resulting Proclamation of the Secretary of State also included purported ratifications by the States of Ohio and New Jersey, although the Proclamation recognized the fact that the Legislatures of said states, several months previously, had withdrawn their ratifications and effectively rejected the 14th Amendment in January, 1868, and April, 1868.
Therefore, deducting these two states from the purported ratifications of the 14th amendment, only 23 State ratifications at most could be claimed; whereas the ratification of 28 States, or three-fourths of 37 States in the Union, were required to ratify the 14th Amendment.
From all of the above documented historic facts, it is inescapable that the 14th Amendment never was validly adopted as an article of the Constitution, that it has no legal effect, and it should be declared by the Courts to be unconstitutional, and therefore null, void and of no effect.
THE CONSTlTUTION STRIKES THE 14TH AMENDMENT WITH NULLITY
The defenders of the 14th Amendment contend that the U. S. Supreme Court has finally decided upon its validity. Such is not the case.
In what is considered the leading case, Coleman v. Miller, 507 U. S. 448, 59 S. Ct. 972, the U. S. Supreme Court did not uphold the validity of the 14th Amendment.
In that case, the Court brushed aside constitutional questions as though they did not exist. For instance, the Court made the statement that:
"The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868."
And the Court gave no consideration to the fact that Georgia, North Carolina and South Carolina were three of the original states of the Union with valid and existing constitutions on an equal footing with the other original states and those later admitted into the Union.
What constitutional right did Congress have to remove those state governments and their legislatures under unlawful military power set up by the unconstitutional "Reconstruction Acts," which had for their purpose, the destruction and removal of these legal state governments and the nullification of their Constitutions?
The fact that these three states and seven other Southern States had existing Constitutions, were recognized as states of the Union, again and again; had been divided into judicial districts for holding their district and circuit courts of the United States; had been called upon by Congress to act through their legislatures upon two Amendments, the 13th and 14th, and by their ratifications had actually made possible the adoption of the 13th Amendment; as well as their state governments having been re-established under Presidential Proclamations, as shown by President Andrew Johnson's Veto message and proclamations, were all brushed aside by the Court in COLEMAN by the statement that:
"New governments were erected in those States (and in others) under the direction of Congress." and that these new legislatures ratified the Amendment.
The U. S. Supreme Court overlooked that it previously had held that at no time were these Southern States out of the Union. White v. Hart, 1871, 13 Wall. 646, 654.
In COLEMAN, the Court did not adjudicate upon the invalidity of the Acts of Congress which set aside those state Constitutions and abolished their state legislatures,- the Court simply referred to the fact that their legally constituted legislatures had rejected the 14th Amendment and that the "new legislatures" had ratified the Amendment.
The Court overlooked the fact, too, that the State of Virginia was also one of the original states with its Constitution and Legislature in full operation under its civil government at the time.
The Court also ignored the fact that the other six Southern States, which were given the same treatment by Congress under the unconstitutional "Reconstruction Acts", all had legal constitutions and a republican form of government in each state, as was recognized by Congress by its admission of those states into the Union. The Court certainly must take judicial cognizance of the fact that before a new state is admitted by Congress into the Union, Congress enacts an Enabling Act, to enable the inhabitants of the territory to adopt a Constitution to set up a republican form of government as a condition precedent to the admission of the state into the Union, and upon approval of such Constitution, Congress then passes the Act of Admission of such state.
All this was ignored and brushed aside by the Court in the COLEMAN case. However, in COLEMAN the Court inadvertently said this:
"Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States."
In Hawse v. Smith, 1920, 253 U. S. 221, 40 S. Ct. 227, the U. S. Supreme Court unmistakably held:
"The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three-fourths of the states, or conventions in a like number of states. Dodge v. Woolsey. 18 How. 331, 348, 15 L. Ed. 401. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed."
We submit that in none of the cases, in which the Court avoided the constitutional issues involved in the composition of the Congress which adopted the Joint Resolution for the 14th Amendment, did the Court pass upon the constitutionality of the Congress which purported to adopt the Joint Resolution for the 14th Amendment, with 80 Representatives and 23 Senators, in effect, forcibly ejected or denied their seats and their votes on the Joint Resolution proposing the Amendment, in order to pass the same by a two-thirds vote, as pointed out in the New Jersey Legislature Resolution on March 27, 1868.
The constitutional requirements set forth in Article V of the Constitution permit the Congress to propose amendments only whenever two-thirds of both houses shall deem it necessary,- that is, two-thirds of both houses as then constituted without forcible ejections.
Such a fragmentary Congress also violated the constitutional requirements of Article V that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
There is no such thing as giving life to an amendment illegally proposed or never legally ratified by three-fourths of the states. There is no such thing as amendment by laches; no such thing as amendment by waiver; no such thing as amendment by acquiescence; and no such thing as amendment by any other means whatsoever except the means specified in Article V of the Constitution itself.
It does not suffice to say that there have been hundreds of cases decided under the 14th Amendment to supply the constitutional difficiencies in its proposal or ratification as required by Article V. If hundreds of litigants did not question the validity of the 14th Amendment, or questioned the same perfunctorily without submitting documentary proof of the facts of record which made its purported adoption unconstitutional, their failure cannot change the Constitution for the millions in America. The same thing is true of laches; the same thing is true of acquiescence; the same thing is true of ill considered court decisions.
To ascribe constitutional life to an alleged amendment which never came into being according to specific methods laid down in Article V cannot be done without doing violence to Article V itself. This is true,because the only question open to the courts is whether the alleged 14th Amendment became a part of the Constitution through a method required by Article V. Anything beyond that which a court is called upon to hold in order to validate an amendment, would be equivalent to writing into Article V another mode of amendment which has never been authorized by the people of the United States.
On this point, therefore, the question is, was the 14th Amendment proposed and ratified in accordance with Article V?
In answering this question, it is of no real moment that decisions have been rendered in which the parties did not contest or submit proper evidence, or the Court assumed that there was a 14th Amendment. If a statute never in fact passed by Congress, through some error of administration and printing got into the published reports of the statutes, and if under such supposed statute courts had levied punishment upon a number of persons charged under it, and if the error in the published volume was discovered and the fact became known that no such statute had ever passed in Congress, it is unthinkable that the Courts would continue to administer punishment in similar cases, on a non-existent statute because prior decisions had done so. If that be true as to a statute we need only realize the greater truth when the principle is applied to the solemn question of the contents of the Constitution.
While the defects in the method of proposing and the subsequent method of computing "ratification" is briefed elsewhere, it should be noted that the failure to comply with Article V began with the first action by Congress. The very Congress which proposed the alleged 14th amendment under the first part of Article V was itself, at that very time, violating the last part as well as the first part of Article V of the Constitution. We shall see how this was done.
There is one, and only one, provision of the Constitution of the United States which is forever immutable - which can never be changed or expunged. The Courts cannot alter it; the executives cannot change it; the Congress cannot change it; the State themselves - even all the States in perfect concert - cannot amend it in any manner whatsoever, whether they act through conventions called for the purpose or through their legislatures. Not even the unanimous vote of every voter in the United States could amend this provision. It is a perpetual fixture in the Constitution, so perpetual and so fixed that if the people of the United States desired to change or exclude it, they would be compelled to abolish the Constitution and start afresh.
The unalterable provision is this . . . "that no State, without its consent, shall be deprived of its equal suffrage in the Senate."
A state, by its own consent, may waive this right of equal suffrage, but that is the only legal method by which a failure to accord this immutable right of equal suffrage in the Senate can be justified. Certainly not by forcible ejection and denial by a majority in Congress, as was done for the adoption of the Joint Resolution for the 14th Amendment.
Statements by the Court in the COLEMAN case that Congress was left in complete control of the mandatory process, and therefore it was a political affair for Congress to decide if an amendment had been ratified, does not square with Article V of the Constitution which shows no intention to leave Congress in charge of deciding whether there has been a ratification. Even a constitutionally recognized Congress is given but one volition in article V, that is, to vote whether to propose an Amendment on its own initiative. The remaining steps by Congress are mandatory. If two-thirds of both houses shall deem it necessary, Congress shall propose amendments; if the Legislatures of two-thirds of the States make application, Congress shall call a convention. For the Court to give Congress any power beyond that to be found in Article V is to write the new material into Article V.
It would be inconceivable that the Congress of the United States could propose, compel submission to, and then give life to an invalid amendment by resolving that its effort had succeeded,- regardless of compliance with the positive provisions of Article V.
It should need no further citations to sustain the proposition that neither the Joint Resolution proposing the 14th amendment nor its ratification by the required three-fourths of the States in the Union were in compliance with the requirements of Article V of the Constitution.
When the mandatory provisions of the Constitution are violated, the Constitution itself strikes with nullity the Act that did violence to its provisions. Thus, the Constitution strikes with nullity the purported 14th Amendment.
The Courts, bound by oath to support the Constitution, should review all of the evidence herein submitted and measure the facts proving violations of the mandatory provisions of the Constitution with Article V, and finally render judgment declaring said purported amendment never to have been adopted as required by the Constitution.
The Constitution makes it the sworn duty of the judges to uphold the Constitution which strikes with nullity the 14th Amendment.
And, as Chief Justice Marshall pointed out for a unanimous Court in Marbury v. Madison (1 Cranch 136 at 179):
"The framers of the constitution contemplated the instrument as a rule for the government of courts, as well as of the legislature."
"Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government?"
"If such be the real state of things, that is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."
"Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, courts, as well as other departments, are bound by that instrument."
The federal courts actually refuse to hear argument on the invalidity of the 14th Amendment, even when the issue is presented squarely by the pleadings and the evidence as above.
Only an aroused public sentiment in favor of preserving the Constitution and our institutions and freedoms under constitutional government, and the future security of our country, will break the political barrier which now prevents judicial consideration of the unconstitutionality of the 14th Amendment.
Cites and References:
1. New Jersey Acts, March 27, 1868.
2. Alabama House Journal 1868, pp. 210-213.
3. Texas House Journal, 1866, p. 577.
4. Arkansas House Journal, 1866, p. 287.
5. Georgia House Journal, November 9, 1866, pp. 66-67.
6. Florida House Journal, 1866, p. 76.
7. South Carolina House Journal, 1868, pp. 33 and 34.
8. North Carolina Senate Journal, 1866-67, pp. 92 and 93.
9. 14 Stat. 358 etc.
10. Senate Journal, 39th Congress, 1st Session. p. 563, House Journal p. 889.
11. House Journal 1868, pp. 578-584 -- Senate Journal 1866, p. 471.
12. House Journal 1866, p. 68 -- Senate Journal 1886, p. 72
13. House Journal 1866, p. 76 -- Senate Journal 1866, p. 8.
14. House Journal l866, pp. 210-213 -- Senate Journal 1866, p. 183.
15. House Journal 1866-1867. p. 183 -- Senate Journal 1866-1867, p. 138.
16. House Journal 1866, pp. 288-291 -- Senate Journal 1866, p. 262.
17. House Journal 1866, p. 284 -- Senate Journal 1866, p. 230.
18. House Journal 1867, p. 60 -- Senate Journal 1867, p. 62.
19. House Journal 1866-1867, p. 108 -- Senate Journal 1866-1867, p. 101.
20. McPherson, Reconstruction, p. 194; Annual Encyclopedia, p. 452.
21. House Journal 1867, p. 223 -- Senate Journal 1867, p. 176.
22. House Journal 1867, p. 1141 -- Senate Journal 1867, p. 808.
23. McPherson, Reconstruction, p. 194.
24. House Journal 1868, pp. 44-50 -- Senate Journal 1868, pp. 33-38.
25. Minutes of the Assembly 1868, p. 743---Senate Journal 1868, p. 356.
26. House Journal, 80th Congress, 2nd Session. p. 563 etc.
27. 13 Stat. p. 567.
28. 18 Stat. p. 774.
29. Presidential Proclamation No. 153, General Record of the United States, G.S.A., National Archives and Records Service. 30 14 Stat. p. 814.
31 House Journal, 37th Congress, 1st Session. p. 123 etc.
32 Senate Journal, 37th Congress, 1st Session. p. 91 etc.
33 13 Stat. p. 763.
34 14 Stat. p. 811.
35 14 Stat. p. 814.
36 House Journal, 39th Congress, 2nd Session. p. 563 etc.
37 40th Congress, 1st Session. House Journal p. 232 etc.
38 McPherson, Reconstruction, p. 53.
39 House Journal 1868, p. 15, Senate Journal 1868, p. 15.
40 House Journal 1868, p. 9, Senate Journal 1868, p. 8.
41 Senate Journal 1868, p. 21.
42 House Journal 1868, p. 50, Senate Journal 1868, p. 12.
43 Senate Journal, 40th Congress. 2nd Session. p. 725.
44 House Journal, 1868, p. 50.
45 Vol. I, pp. 288-306; Vol. II, pp. l429-]448 - "The Federal and State Constitutions," etc., compiled under Act of Congress on June 30, 1906, Francis Newton Thorpe, Washington Government Printing Office (1906).
46 Same, Thorpe, Vol. V, pp. 2799-2800.
47 Same, Thorpe, Vol. II, pp. 809-822.
48 Same, Thorpe, Vol. I, pp. 116-132.
49 Same, Thorpe, Vol. VI, pp. 3269-3281.
50 14 Stat. p. 42B, etc. 15 Stat. p. l4, etc.
51 15 Stat. p. 706.
52 House Journal, 40th Congress, 2nd. Session. p. 1126 etc.
53 16 Stat. p. 708.
The above treatise is taken in part from the research of Judge L. H. Perez.
Further notes and addenda.
It must be noted that the Resolution proposing the twelve sections which comprise the Bill of Rights was not issued to the States with a signature, nor were nos. 11, 12, or the original 13th. The proposed "Corwin" 13th of 1861 legalizing Slavery and acknowledging States rights, signed as approved by Buchanan two days before Lincoln's inauguration, and the Anti-Slavery Amendment, signed by then President Lincoln were the only two signed by presidents. So President Andrew Johnson's argument was probably defective.
It may be helpful to know that the 14th amendment proclamations of July 20, 1868, cite 51, and July 28, 1868, cite 53, were issued as Presidential Executive Orders.
Presidential Executive Order No. 6 **, issued July 20, 1868. Ratification of the 14th Amendment certified as valid, provided the consent of Ohio and New Jersey be deemed as remaining in force despite subsequent withdrawal. **Signed by William H. Seward, Secretary of State. Has the form of a proclamation.
Presidential Executive Order No. 7 **, issued July 28, 1868. 14th Amendment certified as in effect and ordered published. **Signed by William H. Seward, Secretary of State.
From Presidential Executive Order Title List -- Presidential Executive Orders, 2 vols. (N.Y.: Books, Inc., 1944 Copyright by Mayor of N.Y. 1944), vol. 1, pp. 1-2.
In this light the 14th (amendment), which has perplexed many, is an Executive Order, not an (Article) of Amendment to the Constitution of the united States of America, albeit a statute and so remains an Executive Order.
What really counts are these points:
A) New Jersey was disenfranchised in the Senate by having its lawfully elected Senator accepted, and then rejected, and without a 2/3rds vote;
B) Oregon's faulty ratification vote with unlawful state legislators being allowed to cast votes; and the lawfully constituted state legislature then rejecting the Fourteenth, but too late.
C) Non-republican [Reconstruction] governments of the southern States imposed by military force and fiat, cannot ratify anything. Either the Fourteenth is legal and the anti-slavery amendment is not, or the anti-slavery amendment is legal and the Fourteenth is not.