- Joined
- Jan 12, 2016
- Location
- South Carolina
It would seem so.
https://www.law.ua.edu/pubs/lrarticles/Volume 53/Issue 2/Bryant.pdf
1. Southern States representatives not allowed to be seated in Congress. This may or may not be as problematic as it seems, as discussed below:
When Southern senators and representatives began arriving in Washington to take their place in the Thirty-Ninth Congress, which convened on December 4, 1865, they were confronted with two opposing legal signals. The Secretary of State's proclamation that the Thirteenth Amendment had been ratified seemed to suggest the recognition of the validity of the Southern governments. ' Congress, however, had no intention of making such recognition. When the Thirty-Ninth Congress convened, Republicans refused to seat any Southern representatives, and would later declare, "no legal State governments . . . exist in the rebel states." The Southern states were refused representation in Congress throughout the entire period in which the Fourteenth Amendment was proposed and ratified.
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Regardless of this, however, if the Southern states were still in the Union, and with legitimate governments, which the ratification of the Thirteenth Amendment suggests, then they were entitled to sixty-one representatives and twenty-two senators.
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It is here, then; where the first problem with the proposal of the Fourteenth Amendment arises. If the Southern governments were legitimate enough to ratify the Thirteenth Amendment, how is it they could be denied representation in Congress?
The two possiblities were the qualification clause, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members" and the clause guaranteeing each state a Republican form of government, with the argument being that since Southern states had not guaranteed the freedmen a right to vote, the argument went, their governments did not qualify. However...
No Southern government had granted blacks the right to vote, and some radicals in Congress argued that "republican government required not merely that blacks be free but that they be enfranchised." This argument was hard for many Republicans to accept." For one reason, only six Northern states had granted blacks the right to vote by 1865, and during the period where Southern states were excluded, seven Northern states defeated proposals for black suffrage in popular referenda. The best they could do was to point out that in the South one half to one-third of the eligible male voters were disenfranchised, while in the North, only a minuscule portion of male voters were excluded.
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Even if one agrees with the reasonable argument that the South's governments were so unrepublican that the Guarantee Clause could allow Congress to exclude Southern representation and still propose the Fourteenth Amendment in accordance with Article V, there still remains one unavoidable problem. For while that argument potentially saves the proposition that the Fourteenth Amendment was constitutionally proposed, it necessarily admits that the Thirteenth Amendment was never ratified. How could an unrepublican and thus unrecognized government's vote count towards the ratification of the Thirteenth Amendment?
The second problem is 2) the illegal expulsion of John. P. Stockton of New Jersey.
One other matter clouds the proposal of the Fourteenth Amendment. Even with the Southern delegations excluded, an initial poll of support for the Amendment in the Senate showed that the Senate was still one vote shy of the required two- thirds. One outspoken opponent of the Amendment was John. P. Stockton of New Jersey. Stockton had taken the oath of office and was formally seated on December 5, 1865, when the Thirty-Ninth Congress convened. While it only takes a majority vote to refuse to seat a congressman, the Constitution requires a two-thirds vote to expel a member who has already been seated. A motion was passed by only a bare majority in the Senate to expel Stockton. Thus, Stockton was unconstitutionally expelled. Only through this bit of chicanery did the Fourteenth Amendment gain its requisite two thirds majority in the Senate."
https://www.law.ua.edu/pubs/lrarticles/Volume 53/Issue 2/Bryant.pdf
1. Southern States representatives not allowed to be seated in Congress. This may or may not be as problematic as it seems, as discussed below:
When Southern senators and representatives began arriving in Washington to take their place in the Thirty-Ninth Congress, which convened on December 4, 1865, they were confronted with two opposing legal signals. The Secretary of State's proclamation that the Thirteenth Amendment had been ratified seemed to suggest the recognition of the validity of the Southern governments. ' Congress, however, had no intention of making such recognition. When the Thirty-Ninth Congress convened, Republicans refused to seat any Southern representatives, and would later declare, "no legal State governments . . . exist in the rebel states." The Southern states were refused representation in Congress throughout the entire period in which the Fourteenth Amendment was proposed and ratified.
------------
Regardless of this, however, if the Southern states were still in the Union, and with legitimate governments, which the ratification of the Thirteenth Amendment suggests, then they were entitled to sixty-one representatives and twenty-two senators.
--------------
It is here, then; where the first problem with the proposal of the Fourteenth Amendment arises. If the Southern governments were legitimate enough to ratify the Thirteenth Amendment, how is it they could be denied representation in Congress?
The two possiblities were the qualification clause, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members" and the clause guaranteeing each state a Republican form of government, with the argument being that since Southern states had not guaranteed the freedmen a right to vote, the argument went, their governments did not qualify. However...
No Southern government had granted blacks the right to vote, and some radicals in Congress argued that "republican government required not merely that blacks be free but that they be enfranchised." This argument was hard for many Republicans to accept." For one reason, only six Northern states had granted blacks the right to vote by 1865, and during the period where Southern states were excluded, seven Northern states defeated proposals for black suffrage in popular referenda. The best they could do was to point out that in the South one half to one-third of the eligible male voters were disenfranchised, while in the North, only a minuscule portion of male voters were excluded.
-------------
Even if one agrees with the reasonable argument that the South's governments were so unrepublican that the Guarantee Clause could allow Congress to exclude Southern representation and still propose the Fourteenth Amendment in accordance with Article V, there still remains one unavoidable problem. For while that argument potentially saves the proposition that the Fourteenth Amendment was constitutionally proposed, it necessarily admits that the Thirteenth Amendment was never ratified. How could an unrepublican and thus unrecognized government's vote count towards the ratification of the Thirteenth Amendment?
The second problem is 2) the illegal expulsion of John. P. Stockton of New Jersey.
One other matter clouds the proposal of the Fourteenth Amendment. Even with the Southern delegations excluded, an initial poll of support for the Amendment in the Senate showed that the Senate was still one vote shy of the required two- thirds. One outspoken opponent of the Amendment was John. P. Stockton of New Jersey. Stockton had taken the oath of office and was formally seated on December 5, 1865, when the Thirty-Ninth Congress convened. While it only takes a majority vote to refuse to seat a congressman, the Constitution requires a two-thirds vote to expel a member who has already been seated. A motion was passed by only a bare majority in the Senate to expel Stockton. Thus, Stockton was unconstitutionally expelled. Only through this bit of chicanery did the Fourteenth Amendment gain its requisite two thirds majority in the Senate."
Bringing the