Attacking the 14th Amendment
Born from the ashes of the Civil War, the Fourteenth Amendment expanded notions of citizenship to include African-Americans by providing that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
This Amendment has been part of the United States Constitution since its ratification in 1868. And since then, Confederate sympathizers and other right-wing groups have refused to accept the Amendment's legitimacy.
Calling the Fourteenth Amendment the most "nefarious consequence of the Reconstruction," the neo-Confederate League of the South attacks the validity of the Amendment on the ground that its ratification was fraudulent.
The League claims that the Southern states were coerced into accepting the Amendment, and that without this coercion, there would not have been enough states to ratify the Amendment. Therefore, the argument goes, the passage of the Amendment was illegitimate.
The neo-Confederates raise an interesting point. The process of ratifying the Fourteenth Amendment did involve strong-arm tactics. Southern states were granted re-entry into the Union only on the condition that they ratify the Amendment.
But none of this is surprising. After all, America had just fought the bloodiest war in her history over the issue of slavery, and extending citizenship to newly freed slaves was a vital component of Reconstruction.
The United States Supreme Court long ago said that courts were not to enter the political arena to second-guess the process by which amendments were ratified. "[T]he question of the efficacy of ratifications by state legislatures ... should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment." Coleman v. Miller, 307 U.S. 433, 450 (1939).
"The nonjusticiability of a political question is primarily a function of the separation of powers," a cornerstone of our entire system of government. Baker v. Carr, 369 U.S. 186, 210 (1962).
The neo-Confederate view that the Fourteenth Amendment is illegitimate is shared by other ideologues in the world of right-wing extremism.
In its inaugural publication in 1985, the Christian Knights of the Ku Klux Klan — soon to be known as the "marchingest" Klan in the nation — wrote in an article decrying school desegregation that "[t]he Fourteenth Amendment was never legally ratified but pronounced 'law' by the 'Radical Reconstruction' Congress in July 1868."
More recently, the same theme has been popularized by the antigovernment — and fundamentally white supremacist — "Freemen."
According to the Freemen, the "original" or "organic" Constitution was written for and gave inalienable rights to white men, whom they call "organic sovereigns."
The illegitimate Fourteenth Amendment, the Freemen argued, created "Fourteenth Amendment citizens," consisting of African-Americans, who do not have inalienable rights but only the limited statutory civil rights that Congress granted them.
The "Fourteenth Amendment citizens" are subject to federal law because their very citizenship emanates from the rights granted by the federal government, whereas the "organic sovereigns" are not subject to federal law.
Not surprisingly, the courts have not been impressed by such legal gymnastics. Where plaintiffs have claimed they do not have to pay federal taxes as organic sovereigns, the "argument has been consistently and thoroughly rejected by every branch of the government for decades.
Indeed, advancement of such utterly meritless arguments is now the basis for serious sanctions imposed on civil litigants who raise them." United States v. Studley, 783 F.2d 934 (9th Cir. 1986).
The fact that the United States Supreme Court has soundly rejected attacks on the Fourteenth Amendment for more than a century adds to the Amendment's legitimacy. See Leser v. Garnett, 258 U.S. 130 (1922).
Courts adhere to the concept of stare decisis, a doctrine designed to create a secure and certain legal system by requiring courts to "abide by, or adhere to, decided cases." Black's Law Dictionary (6th ed.).
If this doctrine means anything, it means that, after more than a century of Supreme Court acceptance, the validity of the Fourteenth Amendment and its ratification process is no longer subject to challenge.
The Fourteenth Amendment was championed by a victorious government as the result of the Civil War. Questioning the Amendment at this late date is tantamount to fighting the war all over again. Having lost on the battlefield, it is no surprise that those who question the Amendment's legitimacy have lost in the courts.