98 Pages Posted: 30 Aug 2013 Last revised: 10 Sep 2017
Date Written: August 28, 2013
The Fourteenth Amendment is rightly regarded as the jewel of our Constitution. No clear consensus has ever emerged, however, on exactly why it is a legitimate part of our Constitution. The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises problems for the Fourteenth Amendment’s compliance with both of Article V’s requirements for constitutional amendments. Republicans (a) proposed the Amendment by two-thirds of each house in 1866 only by excluding Southern representatives, and (b) ratified the Amendment by three-fourths of the states only by demanding ratification in 1867 as the price of readmission.
Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these two problems: the nationalization, formalization, democratization, and intergeneralization of We the People, respectively. Ackerman hails Reconstruction as the death of the federally-structured Article V process; Harrison views it as the formally-lawful evasion of Article V’s intended restriction; Amar views it as the imposition of more democratic political norms in the name of republican government; Colby views it as only legitimate if taken to include later acts like Brown and Roe.
This Article and a companion defend a view they all consider but too-briefly reject. The “loyal denominator” view holds that the disloyal South’s powers under Articles I and V (and II and IV) — including the power to be part of the Article V denominator — were suspended upon secession and remained suspended until the Union’s military victory was sufficiently secure in the view of Congress that a state of peace could be restored. Given a loyal Article V denominator, the Fourteenth Amendment became law on February 12, 1867. We should therefore understand the text as the expression of meaning uttered by the loyal North, not as jointly uttered by the loyal North and the defeated South.
This Article sets out the issues regarding Fourteenth Amendment legitimacy, explains how a loyal denominator can resolve them, and canvasses expressions of the theory during Reconstruction. A companion article defends loyal denominatorism on the merits — based on linguistic theory, the law of war, and the separation of war power — and considers implications.
Keywords: Fourteenth Amendment, Loyal Denominatorism, Bruce Ackerman, John Harrison, Akhil Amar, Thomas Colby, February 12, 1867, Reconstruction Act of 1867, Article V, Reconstruction
Suggested Citation: Suggested Citation
Green, Christopher R., The South Tried to Secede, and You’ll Never Guess What Happened Next: Loyal Denominatorism and the Fourteenth Amendment (August 28, 2013). Louisiana Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2317471 or http://dx.doi.org/10.2139/ssrn.2317471
By Jack Balkin