about the universe forum commander Shop Now Commanders Circle
Product List FAQs home Links Contact Us

Friday, January 11, 2008


Steve Cole observes: The United States was originally a relatively weak central government created by 13 sovereign nations for their mutual convenience (to run the post office, military, and passport office). The 14th Amendment changed that, making it a strong central government. You didn't know that? A little constitutional history might shed some light.

When England granted us independence, it did not do so to the United States, but to each of the 13 colonies, making them each a separate sovereign nation. England had no legal right to create one country out of 13, and left that to the 13 to figure that out for themselves, assuming they would form a single country but kind of hoping maybe they would not. The very weak Articles of Confederation (used during the Revolution and for a few years afterwards) were unworkable, as the resulting "nation" was more a grab bag than a united whole. It just didn't work.

The Constitutional Convention changed that, creating one of the greatest documents produced by human civilization. It's also pretty vague and muddled in its original form. While every attempt to include language about a strong central government or a perpetual union was rejected, the resulting document was pretty much everything to everybody. Those who wanted a strong central government (mostly in the North) thought that they had obviously obtained it. Those who wanted a weak central government (mostly in the South) thought they, just as obviously, got the limited central government they wanted.

The states did not surrender their sovereignty to the Union; they delegated a strictly limited set of duties and authorities: run the Post Office, run the Army (any real combat force would be composed mostly of state militia which the governors might or might not provide depending on what they thought of the war in question), run the Navy, collect import-export duties (for all practical purposes the only income for the Feds), regulate interstate trade, conduct foreign policy (but declaring war and making treaties was reserved to the states represented in Congress), and enforce the limited number of Federal laws it would take to do all of that. So far, so good.

After the Civil War, the North (which had total control over the legislature since it decided which Southerners got to sit in it, if any) decided that the original Constitution had been too weak. (Just personally, I agree with them.) They came up with the 14th Amendment (which, just personally, I support). This did a whole bunch of stuff. For one thing, it changed people from being citizens of the 37 individual states to being citizens of the United States, a concept that (technically) had not previously existed. It gave the Federal courts the right to review and change state laws. It banned anyone who fought or worked for the Confederacy from voting or holding office. (This was actually illegal, since Article 1 Section 9 prohibits ex-post-facto laws. On the other hand, it seems pretty obvious even without the 14th Amendment that "rebellion" has an action with consequences, but there was nothing in the Constitution which said: "If you take part in a rebellion, you lose your right to vote or hold office." Clearly, this should have been in the original; an oversight, I'm sure. This consequence of rebellion was added by the 14th Amendment, in a way that technically could not be applied to the Confederacy, but only to subsequent rebellions.) Basically, the 14th Amendment transferred a ton of power from the states to the Feds. It converted the nation from a Federal Union of separate states to a unified nation with 37 sub-regional administrative districts. Worse, it put the Feds (not the states) in charge of deciding if the Feds had taken too much power away from the states. (Look what THAT led to over the next 140 years.)

The Amendment was submitted for ratification. Southern legislatures (full of Confederates) had already ratified the 13th Amendment (ending slavery), but rejected the 14th. (So, the Civil War was fought over what: slavery or states rights? But I digress.) When it was all over, 22 states voted yes (it took 28 to pass), 12 voted no, and 3 didn't vote. (One of them, Mississippi, voted "no" but the letter did not get to Washington on time. Remember that part about running the Post Office? But I digress.)

The Northern-controlled Congress would not have this. (Of course, they had not been all that upset when Lincoln ignored the Constitution and jailed 50,000 American citizens without trial or access to the courts. I wonder, were these Southern sympathizers sent to Guantanamo?) They quickly declared that the Southern legislatures which had been legitimate enough to ratify the 13th Amendment were illegitimate and had no right to even vote on the 14th Amendment. (Did that invalidate their ratification of the 13th Amendment? Apparently not, but I digress.) Congress then declared that the Southern states were no longer legitimate states with their own governments (it put them under martial law). This amounted to kicking out of the Union the very states that had been told at gunpoint that they could not leave, but (again) I digress. Congress further said that the Southern states could not have their own local governments back until they ratified the 14th Amendment (which Amendment, by the way, illegally disenfranchised the vast majority of the voters of those states by creating a penalty after the crime had been committed). Forcing a state to ratify an amendment is obviously (not to mention, actually) illegal and the ratification by the 11 ex-Confederate states were and still are invalid and void, but they still counted and the 14th Amendment changed the Constitution forever (even if it actually didn't since the 14th Amendment actually never passed, but I digress). Three Northern states, seeing what was going on, rescinded their ratification of the 14th Amendment (most of the data I provide above about what was really in the 14th Amendment comes from New Jersey's rather firmly-worded resolution rescinding their ratification) but Congress said states had no right to change their mind (a matter that is still in some dispute and has come up in some later amendment debates). Thus, the 14th Amendment became part of the Constitution despite being rejected by 16 of the 37 states and approved by 19. I must not have paid attention in Engineering School as I didn't know that 19-to-16 was a three-fourths majority. I learn something new every day.

And, since that time, the power has continued to steadily shift to the Federal government, which has yet to say "we have too much power". Maybe that's a good thing. Maybe some of the states would misbehave if they had more power (making it hard for minorities to vote). Decide for yourself if that is a good or bad thing.

But if you ever wondered if the Founding Fathers intended to construct the government we now have, the answer is no, they did not, but then, maybe they would have if they had seen the future. I'm not sure if the Constitution of 1860 could have won World War II. It is interesting that the Democrats ran against Lincoln in 1864 demanding that the Constitution which Lincoln had ignored, violated, suspended, and otherwise subverted be put back the way it was before he took off (not changed by the 14th Amendment). But frankly, and this from a guy from Texas, I support what Lincoln did (no matter how illegal). His job was to win the war and clean up the Constitutional mess later.