Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications
39 Pages Posted: 19 Jan 2017 Last revised: 26 Jan 2018
Date Written: January 17, 2017
This Article and a companion defend a revisionist explanation for the Fourteenth Amendment’s legitimacy. The legitimacy of both the Amendment’s proposal and ratification are imperiled by the exclusion of Southern states from Congress between 1865 and 1868: the exclusion was essential for the Amendment’s two-thirds supermajorities in the House and Senate, and the demand that the South ratify before being represented was essential for the Amendment’s three-fourths supermajority among the states. Congress justified the exclusion of Southern representatives by the suspension of Southern states’ “political relations in the Union” during the war; such suspensions continued until Congress restored them. As the companion paper makes clear, a great many Republicans and other observers applied the same theory to Article V. The right to say no to an amendment — that is, the right to be included in the denominator from which a three-fourths ratification vote was calculated — was restored at the same time as other “political relations in the Union.” On this theory, the Fourteenth Amendment became law on February 12, 1867, when Pennsylvania ratified, bringing ratifications to twenty of the twenty-six represented in Congress.
While its companion explains at great length the historical prevalence of Article V loyal denominatorism during Reconstruction, this Article defends the loyal Article V denominator on the merits and explains several important implications.
The loyal-denominator intellectual cocktail has four parts: one part linguistics, two parts law of war, and one part separation of war power, each ingredient subject to surprisingly little real controversy. (a) The linguistic ingredient is tacit quantifier domain restriction. Language users always presuppose some domain of application for their words, almost always both non-universal and tacit. The presupposition that states with power in the Union are not engaged in war against the Union is quite similar in kind to the sorts of presupposition discussed by all careful thinkers about language (ancient, contemporaneous with the Founding, modern, or anywhere in between). (b) The first law-of-war ingredient applies this linguistic theory to war. Agreements that make a “tacit supposition of peace,” as Vattel put it, are suspended during a war between the contracting parties or constituent parts. (c) The second law-of-war ingredient concerns the end of war, or jus post bellum: victorious parties in armed conflict may demand not only formal external surrender, but reliable submission, from their opponents. (d) Finally, Congress’s power to “declare War,” i.e., the power to declare that a state of war exists, obviously includes the power to delay the establishment of a condition of peace by declaring that a state of war still exists. The Tennessee Readmission Act of 1866 and Reconstruction Act of 1867 made very clear that Congress did not yet regard the South to be in a state of peace. Congress was not required to spell out the application to Article V.
The adoption of this view is important for several reasons. (a) First, in line with the first Federalist Paper’s vision of our constitutional-adoption process, it allows us to see the Fourteenth Amendment as the genuine result of federally-structured “reflection and choice” at the time of Reconstruction rather than “accident and force.” If we limit the Article V “We the People” to loyal states, we need neither nationalize it, like Ackerman, nor make it intergenerational, like Colby, nor allow it to be subject to coercion, like Harrison and Amar. (b) Second, recognizing the centrality of jus post bellum issues to the legitimacy of the Amendment at the time of its very adoption can help us better understand the failure to follow through on enforcement of the Amendment in the South. The Fourteenth Amendment was and is the object of the South’s submission, not a joint expression of the unimpaired “equal sovereignty” of all states. (c) Third, we see the importance of context to the inference of tacit restrictions for interpretation, something originalists and textualists have recently been accused of neglecting. (d) Fourth, to the extent that, like McDonald v. Chicago, we think rights prevalent at the time of adoption are critical, the North in 1867, not the nation in 1868, should control us, and the regional skew to state-constitutional gun rights during Reconstruction undermines McDonald’s claim to consensus.
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