1. Welcome to the CivilWarTalk, a forum for questions and discussions about the American Civil War! Become a member today for full access to all of our resources, it's fast, simple, and absolutely free!
Dismiss Notice
Join and Become a Patron at CivilWarTalk!
Support this site with a monthly or yearly subscription! Active Patrons get to browse the site Ad free!
START BY JOINING NOW!

The Lawfulness of the Reconstruction Amendments

Discussion in 'Civil War History - Secession and Politics' started by jgoodguy, Jan 20, 2017.

  1. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    Before we get started on the reconstruction amendments 13-15 I will look at the 16th amendment, the Income Tax amendment, because there was real litigation on many of the points raised by modern skeptics about the Reconstruction Amendments. The purpose of this is to show that the nit pickers about amendments, the ones that raise technical and obscure issues with the Constitutionality of amendments never prosper.

    Benson contentions[edit]
    The William J. Benson contention is essentially that the legislatures of various states passed ratifying resolutions in which the quoted text of the Amendment differed from the text proposed by Congress in terms of capitalization, spelling of words, or punctuation marks (e.g. semi-colons instead of commas), and that these differences made the ratification invalid. Benson makes other assertions including claims that one or more states rejected the Amendment and that the state or states were falsely reported as having ratified the Amendment. As explained below, the Benson arguments have been rejected in every court case where they have been raised, and were explicitly ruled to be fraudulent in 2007.

    The bottom line is that trivial objections to amendments are not going to go very far.


    In Baker v. Commissioner, the court stated:

    Petitioner's theory [that Ohio was not a state until 1953 and that the Sixteenth Amendment was not properly ratified] is based on the enactment of Pub. L. 204, ch. 337, 67 Stat. 407 (1953) relating to Ohio's Admission into the Union. As the legislative history of this Act makes clear, its purpose was to settle a burning debate as to the precise date upon which Ohio became one of the United States. S. Rept. No. 720 to accompany H.J. Res. 121 (Pub. L. 204), 82d Cong. 2d Sess. (1953). We have been cited to no authorities which indicate that Ohio became a state later than March 1, 1803, irrespective of Pub. L. 204.[36]
     

  2. (Membership has it privileges! To remove this ad: Register NOW!)
  3. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377

    Introduction to the article We see modern day objections to the Reconstruction amendments 13-15 based on speculative technical assertions. However the amendments have never been successfully challenged. The ratification were different from those before and after, but they have been accepted. The article will investigate in detail the history and politics of the ratification process and that in the end, it was consistent with the Constitutions.

    Key sentence :
    There were no illegal threats, but it does not matter to meet the wording of Article V.

    Key sentence:
    So much for the purity of the Constitution as perceived by many.


     
  4. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    Amending the Constitution is a mix of National vs States Rights powers put into a legal form. The goal of this is to insure that a change to the Constitution has the connect of the governed. A super majority of the governed not unanimous consent as in the Articles of Confederation.


    Twenty-seventh Amendment to the United States Constitution
    Can an amendment represent the people of the current time if if started the process 200 years before?
     
  5. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377

    The ratification of the 3 reconstruction amendments were unusual. However imagine life without them. Former rebels sought to undo the military defeat politically to the determent of the former slaves and political opponents of the resurgent Democrats. States Rights advocates forget that States oppressed people either by slavery or by suppressing opposition to slavery. States were no longer trusted to insure civil rights of their citizens.

    In do so strong arm tactics were performed and State Governments were changed as needed.

    When the political actors agreed to the 13-15th amendments that settled the matter, whatever legal technicalities existed or may have existed.

    1872 Democratic Party Platform - The American Presidency Project
    Republican Party Platform of 1872 - The American Presidency Project


     
  6. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    But someone will always want a revision of history.

    (8) Bruce Ackerman, 2 We the People: Transformations 23-26 (Belknap 1998) (discussing
    similarities and differences between Reconstruction and the New Deal)

    Link P120-122
    The summary is that just like the founding fathers broke the what was to found the nation, the reconstructionists broke the what was to fulfill the founders promise.
    p3.png

    p5.png
    p6.png
     

    Attached Files:

    • p4.png
      p4.png
      File size:
      134.2 KB
      Views:
      41
    Pat Young likes this.
  7. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377
    We will get a look at 2 objections to the reconstruction amendments. The ratifying governments lack authority and the amendments were made under duress. The response is that they do not matter. Bad things happened, but the amendment ratifications were legally effective.
    We the People, Volume 2: Transformations
    By Bruce Ackerman
    P99-100

    Does it matter if the foundations of the greatest constitutional event in US history is sand. Are those who argue that mere details mean something important also argue that the Emancipation and Equality Amendments are not part of the Constitution?

    p1.png p2.png
     
  8. Pat Young

    Pat Young Colonel Forum Host

    Joined:
    Jan 7, 2013
    Messages:
    17,131
    Location:
    Long Island, NY
    I was unaware of this caselaw.
     
    jgoodguy likes this.
  9. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    As the critics have noted, there are many problems in the ratification process for the nit picker and conspiracy theorists to pick at, but in the end it was straight out legal. The naive orthodox, view that Article Five provides a rigid framework within which moderns can explain all valid amendments since the Founding within their worldview and reject others is not exactly true.

     
    Pat Young likes this.
  10. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377

    A bit of history.
    By 1861 the Constitutional Republic of 1789 was gone. What would replace it?
    The Union as Americans had known it had collapsed. The a rump government in VA claimed loyalty to the Union.
    The Constitutional problem of Reconstruction starts in Virginia.
    There is no way that under the 1789 constitutional scheme West Virginia could call itself a State. But in war time, the needs of war, sometimes makes for changes. Who will the Union recognize as the State of VA, the rebels or the loyalists.
     
    Last edited: Jan 22, 2017
  11. atlantis

    atlantis Sergeant

    Joined:
    Nov 12, 2016
    Messages:
    983
    It is not nit picking to insist that the amendment process be conducted properly. This reckless disregard for proper constitutional procedure is another example that the union founded in 1789 was replaced. Washington has replaced London as an arbitrary power, rendering the war for independence a futile endeavor.
     
  12. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    As we will see, the Constitution is not what most folks think it is. Insisting on some proceedure in error does not make it correct no matter how firmly believed
     
  13. atlantis

    atlantis Sergeant

    Joined:
    Nov 12, 2016
    Messages:
    983
    Yet in a court of law a procedural error can get a case thrown out. As a personal matter I support the reconstruction amendments but as for their lawfulness given that the supreme court has a history of reversing previous rulings one never knows what the future may bring.
     
    Andersonh1 likes this.
  14. atlantis

    atlantis Sergeant

    Joined:
    Nov 12, 2016
    Messages:
    983
    Your thread highlights the human factor in supreme court rulings.
     
  15. huskerblitz

    huskerblitz Captain Forum Host

    Joined:
    Jun 8, 2013
    Messages:
    5,170
    Location:
    Nebraska
    Should be interesting, or at least entertaining, to hear what what the Constitution really is then.
     
    Andersonh1 likes this.
  16. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    Hopefully. This will not be the last thread on this issue. Lots of material, some of which I read and find myself walking down the street muttering.
     
  17. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    Lets stick to your original point.
    First we are not the nation of 1789 and there is no way the governance of 1789 could handle modern complexity. Your comment of "Washington has replaced London as an arbitrary power, rendering the war for independence a futile endeavor." simply is meaningless on its own.

    Re"It is not nit picking to insist that the amendment process be conducted properly." It was, but it is complicated.
    Lets say 3/4 of the states calculates to 46.75. Under article 5 is 46 or 47 States needed to ratified? Who decides. The Constitution is silent.

    Lets say 2 States voted to rescind their ratification, what then? The Constitution is silent.

    Who decides what is the valid Government of a State.

    SCOTUS says congress based on Article IV
    Can a State be coerced or bribed into ratification. Again the Constitution is silent.

    What if there is a Constitutional amendment that was controversial and all sides bury the hatchet and agree to it after negotiations and concessions. Again the Constitution is silent.
     
    Last edited: Jan 22, 2017
  18. Pat Young

    Pat Young Colonel Forum Host

    Joined:
    Jan 7, 2013
    Messages:
    17,131
    Location:
    Long Island, NY
    The Constitution of 1789 had demonstrably failed by 1861. Southern Whites saw highlighted that failure by launching a war that killed 650,000 Americans. Recreating the world of 1860 after 1865 seems to have been the object of many former Confederates.

    Because our civic religion treats the "Founding Fathers" as godlike, modern Americans fail to admit the flaws in the Constitution. They also seem to feel that we need only consult what Jefferson, Madison, and Hamilton wrote to understand what the Constitution means, without realizing that the Amendments are part of the Constitution.
     
    StephenColbert27 and jgoodguy like this.
  19. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    IMHO, before the 1860s, States had become tyrants denying many their civil rights. Secession destroyed the Constitutional Republic of the 1789, destroying it beyond repair. Pining for the so called purity of the Constitution of 1789 is pining for slavery and oppression in the name of slavery. Yes the former Confederates wanted to put Humpty Dumpty back together again, but were denied. War changed the fundamental Constitutional relationship.

    It is important to remember the war the Confederates started destroyed the First US republic. That was part and parcel of their plan. What went wrong was their republic failed. The Constitution survived by becoming something new. Yet the process that made it new was part of the plan of the Founding Fathers giving flexibility to the Constitution to change.
     
  20. StephenColbert27

    StephenColbert27 First Sergeant

    Joined:
    Aug 4, 2015
    Messages:
    1,148
    Location:
    Middle of a Corn Field, Somewhere in Illinois
    It's not like any of the actual Founders involved in the creation of the Constitution thought they had produced a perfect document. Most recognized it for what it was: The best that could be done at the time considering the massive number of compromises made in the process of creating it. Washington himself counseled that after a time amendments should be considered to fix whatever flaws might be revealed in the new government's operation. The myth of the infallible Founders and Constitution emerged after the passing of the Revolutionary generation.
     
  21. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    24,040
    Location:
    Pelham, AL
    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377
    Then the West Virginians wanted their own State. Secession works its magic on the Constitution.

    Online Twenty years of Congress : from Lincoln to Garfield : Blaine, James Vol 1 P464-465

    The Constitution doesn't say what do when whole States become occupied by forces opposed to it. However odd, the West Virginia political decision followed the form of the Constitution. Reconstruction will follow the form of the Constitutions in odd ways.
    Mr. Thaddeus Stevens point.
    Rebutted by Mr. Bingham.
    In the lack of guidance by the Constitution, mere men must improvise.
     
    Last edited: Jan 23, 2017

(Membership has it privileges! To remove this ad: Register NOW!)
Loading...

Share This Page


(Membership has it privileges! To remove this ad: Register NOW!)