Where they properly ratified?
| About me: I am a historian and a former member of the Texas Legislature. I have written many papers on the post-Civil War era from 1865 - 1877 that have made their way in high school and college text books. I have also done a lot of research on the implementation of the Constitutional amendments of that period.|
The legality of the mentioned amendments has been in question since their original concept. The Constitution require 2/3rd majority vote by Congress and the states for an amendment to be ratified. These amendments were passed from June 1866 through Feb 1870 by less than the majority of Congress because the South was not allowed to have representation again in Congress until 1876.
Any first year law student is aware of this controversy. History teaches the war was fought over slavery, but in truth it was over Lincoln's insistence that the secession of the Southern states was not legal and no state had that right. The "Once in, always in" concept was touted all throughout the war by Lincoln to justify the killing of fellow citizens. Lincoln insisted it was not a war but a police action to keep the nation in one piece.
If the South was considered still part of the US, then their reps were simply absent from Congress and there was not enough on duty to ratify any new amendments to the Constitution until those reps returned to their seats and voted yes or no. And, don't forget ratification by 2/3rd of all states. Most of the southern states were under martial law (Reconstruction) until 1876 and not allowed to cast their votes on the amendments. The US required all to accept them before being allowed representation again in Congress. This could be considered extortion by the federal government. Texas was the last state to yield to that demand because it considered itself a sovereign nation. Congress had never legally ratified its acceptance since Texas applied for statehood in 1845 for fear of retaliation by Mexico.
If all this is true, why has the Supreme Court never ruled on the issue? In a case where the feds sued Texas for illegally selling US bonds to fund the Civil War, the Supreme court ruled no state had the right to secede and that Texas illegally sold the bonds because it was still part of the US during the war. There have been many suits brought up against the federal government on the legality of the three amendments added to the Constitution, but none have ever reached the Supreme Court for consideration. The top court of the land knows this is a touchy issue. If they rule in favor of keeping the amendments, they justify the South's right to secede and Lincoln's justification for the war inexcusable. If they rule the amendments were not legally ratified, they have to remove them from the Constitution. And no one wants to do that.
Then there is the interpretation of the 14th Amendment we are looking at close today. Does it actually say that if a child is born in the US he/she is automatically a citizen? No. It was designed to define that all freed slaves are US Citizens in an effort to prevent them from being deported back to Africa. Since most slaves at the time were born in the US, many have taken that fact to interpret all people born in the US are citizens. The amendment actually specifies that anyone else not within the jurisdiction are not born citizens unless one parent is an American citizen. The legal word for "jurisdiction" is the governing entity you serve under. If you come from Mexico, that is your legal jurisdiction unless you legally become a US citizen before having a child. Again, this issue has never reached the Supreme court for a clear interpretation and probably never will.
If any president uses his/her Executive Order to alter the 14th Amendment, as has been threatened, a federal judge somewhere will surely declare the act as unconstitutional and the issue will be referred to the Supreme Court. Because the issue of its initial legality will be brought up, it is doubtful the top court will accept the case and allow the lower court ruling to prevail.
So, we will never know the answer to the legality of the 3 amendments adopted during the Civil War. There are laws on the books that say how a state can join the union, but none that say a state can't change its mind and leave. It was tried, a war was fought, and the victor now controls what the history books say and what cases the Supreme Court will look at.