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The Living Constitution – Reconstruction Acts (part 2)

Reconstruction Acts
“I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution (Art. IV Sec. 2) in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question, and assert those rights by solemn judgment, inflicting upon the offenders such penalties as will compel a decent respect for this guarantee to all the citizens of every State…” –Rep. John Bingham {Cong. Globe, 39th, 1st Sess., 158 (1866) In debate for the Fourteenth Amendment}

The intents of the 14 amendment clearly stated was to extend the jurisdiction of the Supreme Court to hear cases that were formerly excluded from its jurisdiction. The intended extension of jurisdiction to be assigned by the 14 Amendment to the Supreme Court; was the ability to judge the acts of a state; with the Supreme Court having only a limited authority to place fine and penalty. The 14th Amendment was never expected to incorporate the judiciary into the legislative because it would undermine the separation of departments created by other articles in the Constitution.

Article I, Section 7 Clause 2 of the United States Constitution requires that every bill which shall have been passed by Congress, receive the required signature of the President and in this mandated process of creating legislation it must also be subjected to the rule of majority in representation. This process is to maintain that all laws are created by the will and final consent of the people. Not in any article of the Constitution including Article V is there any inclusion to give the court the ability to create legislation but there is a clause in Article 1 Section 8 that opposes Post ex-facto law and reinterpretation of an existing law is a violation of that very exclusion.
“….Even in ordinary times any question of amending the Constitution must be justly regarded as of paramount importance. This importance is at the present time enhanced by the fact that the joint resolution was not submitted by the two houses for the approval of the President, and that, of the thirty-six States which constitute the Union, eleven are excluded from representation in either house of Congress…….a proper appreciation of the letter and spirit of the Constitution, as well as of the interests of national order, harmony, and union, and a due deference for an enlightened public judgment, may at this time well suggest a doubt whether any amendment to the Constitution
ought to be proposed by Congress, and pressed upon the legislatures of the several States for final decision, until after the admission of such loyal senators and representatives of the now unrepresented States as have been or as may hereafter be chosen in conformity with the Constitution and laws of the United States.” (This was President Andrew Johnson message in his debate against the ratification of the Fourteenth Amendment June 22, 1866. The Senate Journal, 39th Congress, 1st Session. P 563, House Journal p. 889.)
The Fourteenth Amendment was then rejected by fifteen (15) states out of the then thirty-six (36) states of the union between the date of its submission to the States by Secretary of State William H. Seward on June 16, 1866. It again failed ratification on March 24, 1868 (note that in 1867 Nebraska had become the 37th state increasing the minimum number of states to ratify). The failure of this proposed amendment to ratified by this deadline required Congress to submit a revision of this proposed amendment an subject it to an entirely new joint resolution by both houses according with the law of Constitution. This did not occur and the original bill introduced in 1863 had been changed in its defining purpose and therefore the original states that voted were disqualified to be counted and applied to the new bill introduced in 1866. This impropriety was never challenged on that basis. The argument brought before the court was founded on the principal that the states that formerly voted desired to withdraw their vote because the states had changed their view of the worth of such an amendment. The courts decision was right but the argument was not.
“Whenever Congress attempts to restrict this right of the majority to rule in the State it will attempt usurpation, and whenever the majority of loyal citizens surrenders that right into the hands of the minority it surrenders the cardinal principle of representative government.” –John A. Bingham, July 20, 1866

Prior to this act of Congress the Thirteenth Amendment was ratified (December 6, 1865) by 27 states of the then 36 states of the Union. Several southern state legislatures did fully participate in the ratification process as it was declared by Abraham Lincoln the Civil War was not a war of conquest. In performance alone the southern states were acknowledge to be valid members of Congress; was it legal for the northern states then to disqualify the same states to then be non-functional? If these same states declared to be illegitimate in 1866 were so, would their exclusion not have rendered the ratification of the Thirteenth Amendment (1865) null and void?
“The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three-fourths of the states, or conventions in a like number of states. (Hawse v. Smith, 1920, 253 U. S. 221, 40 S. Ct. 227)
On April 2, and on August 20, 1866, President Andrew Johnson made proclamations that ended the insurrection of states and cited two prior resolutions made by the remaining Union states which concurred by resolution on July 22nd and July 26th, 1861 that the Civil War forced by the secession of the Southern States, was not waged for the purpose of conquest or to overthrow the rights and established institutions of those states, but to defend and maintain the supremacy of the Constitution and to preserve the Union.

The case of Texas vs. White (April 12, 1869), concluded in decision that Texas (and the rest of the Confederacy) never left the Union during the Civil War, because a state cannot unilaterally secede from the Union (without permission from Congress Article IV Section 3). The Supreme Court further ruled that the southern states were States of the Union before, during, and after the Civil War.

These reconstruction acts were also vetoed by President Andrew Johnson who said, “…it was an invasion by federal authority of the rights of the states; it had no warrant in the Constitution and was contrary to all precedents. It was a stride toward centralization and the concentration of all legislative power in the national government.”

A Supreme Court judge prior to the Civil War did not interpret the text of Constitution, but were simply vassals of the court mastering the technique of jurisprudence (Judicial review) in the application of case argument and intent of Constitution. The actual interpretation of the constitutional text was based upon the writings, essays, and news paper journals (Federalist Papers) of the founders. To change the actual meaning of a law requires an amending law that is specific to how the amendment is to operate to include its limitations. The Supreme Court after the Civil War became a tool to moderate the direction of the United States toward nationalism. We have experienced the transfer and we as a country must evaluate between the two systems – that of original intent – or that of reconstruction that can only end with the amending of the Fourteenth Amendment or to dissolve the current document of Constitution.

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