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The Lawfulness of the Reconstruction Amendments John Harrisont The Lawfulness of the Reconstruction Amendments John Harrisont During Reconstruction the Thirteenth, Fourteenth,and Fifteenth Amendments were added to the Constitution. The circumstances under which the Reconstruction amendments were pro- posed and ratified were extremely unusual,and at the time serious objections were raised to the le- gality of the proceedings. Although for practical purposes that controversy is long over, the amendments' lawfulness remains a naggingproblem. There are two importantlines of objection to the amendments' adoption. One is that some or all of the southern state governments that partici- pated in ratifying them were not legally competent to do so because of the irregularfashion in which those governments had been created. The other objection is that some or all of the southern ratificationswere extorted from the states through unlawful federal threats. This Article reviews the relevant history and discusses legal rationalesunder which the con- stitutional amendments were valid even if there were serious illegalitiesin the creation of the south- ern state governments.According to one such rationale,southern ratificationswere unnecessary be- cause the ex-Confederate states were excluded from the denominatoron which the Article V super- majority is calculated. The Article concludes that this thesis is plausible but ultimately unpersua- sive. Another theory is that the identification of a state's lawful government is a politicalquestion to be decided by the politicalbranches of the national government and ultimately by Congress,and that Congress endorsed the ratifying southern governments,thereby binding all other actors to treat those governments as lawful. The Article reviews the argumentsfor and against this version of the political question doctrine and regards the issue as an open one. Finally,the southern ratifications may have been effective, despite legal defects in the ratifying governments, because those govern- ments had de facto authority and hence were able to bind their states. The legal authority of de facto governments is a familiar principleof internationallaw that has been followed in American constitutionalpractice, and the Article endorses it in this context. Either the politicalquestion or the de facto government thesis must confront the argument that southern ratificationswere invalid be- cause extorted through unlawful federal threats. The Article maintains that it is doubtful whether the ratifications were so extorted, and claims that in any event Article V of the Constitution does not implicitly invalidate ratificationsmade in the face of illegal threats. The conclusion argues that this result, under which constitutionalamendments can be val- idly ratifiedeven when principles of state autonomy are violated, is nevertheless consistent with the purpose of Article V and the constitutionalsystem in general.Certainty as to the text of the Consti- tution is more fundamental than more substantive consideration& Article V of the Constitution seeks to capture, in a bottle made of legal form, the lightning of American popular sovereignty. Its com- pound supermajority rules reflect the compound nature of that sover- eignty.' As Madison explained, Article V is partly federal and partly t Professor of Law and Class of 1966 Research Professor, University of Virginia. The title comes from Charles L. Black, Jr., The Lawfulness of the Segregation Decisions,69 Yale L J 421 (1960). The connection is more than title-deep: Black was right only if the Fourteenth Amend- ment was validly adopted. Demian Jackson, Sarah Erickson, and Daniel Lovejoy provided excel- lent research assistance. 1 Amendments may be proposed by a two-thirds vote in each house of Congress, or by a convention called by Congress on the application of two-thirds of the states. They are then sub- mitted to either the state legislatures or to ratifying conventions in each state, as Congress de- termines. Three-fourths of the legislatures or conventions are required to make a proposed amendment "valid to all Intents and Purposes, as Part of this Constitution." US Const Art V. The University of Chicago Law Review [68:375 national Behind that complexity is the goal of determining whether a proposed change in the basic law has the consent of the governed. Rules and their reasons can lose touch with one another, and Ar- ticle V is no exception to this principle. If the stakes are low such slip- page can produce puzzles that are of little practical importance. The leading example is the Twenty-seventh Amendment, proposed by the First Congress in 1789 and ratified, if ratified, in 1992.' Article V men- tions no time limit; the question with respect to the Amendment is whether Article V is really so formalistic that it permits ratification in the absence of a contemporary consensus that would truly reflect popular consent.' Sometimes the stakes are higher, as they were in the 1860s. Ac- cording to the official documents, Congress proposed and three- fourths of the state legislatures ratified three constitutional amend- ments of considerable importance. The Thirteenth Amendment elimi- nated slavery, the Fourteenth protected the freed slaves' civil rights and sought to curb the political power of the former rebels, and the Fifteenth forbade race discrimination with respect to the franchise. These issues were more important than congressional salaries. During the turmoil of Reconstruction, one major question was whether the Article V process was truly being followed. Much of the country was not represented in the Congress that proposed the Thir- teenth and Fourteenth Amendments. State governments in the South were being made, unmade, and remade through extraordinary proc- esses in which the federal government took the lead. These convul- sions created doubts as to whether the resulting political organizations were truly empowered to speak for their states in ratification. Many of those governments were given strong and possibly unlawful incentives to ratify. The most blatant such threat was the statement in the first Military Reconstruction Act that the ten southern states then ex- cluded from representation in Congress would be restored when they 2 Federalist Number 39 contains Madison's explanation: If we try the Constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly national,nor wholly federal.... Ih requiring more than a majority, and particularly, in computing the proportion by States, not by citizens, it departs from the national,and advances toward the federal character: In rendering the concurrence of less than the whole number of States sufficient, it loses again the federal,and partakes of the nationalcharacter. Federalist 39 (Madison), in Jacob E. Cooke, ed, The Federalist Papers 250, 257 (Wesleyan 1961). 3 See US Const Amend XXVII (Laws varying compensation of senators and representa- tives do not take effect until an election for the House intervenes.). 4 See, for example, William Van Alstyne, What Do You Think About the Twenty-Seventh Amendment?, 10 Const Commen 9, 14-18 (1993) (discussing doubts as to the Amendment's rati- fication). 2001] The Lawfulness of the ReconstructionAmendments had met a series of conditions, including ratification of the Fourteenth Amendment.' Despite the bitterness of Reconstruction, for political purposes the question of the amendments' validity was quickly settled: In 1872 both major parties accepted all three.6 Since then the issue has at- tracted almost no attention for practical or even theoretical purposes American constitutional theorists now have reason to think about this issue because the most prominent of them has made it central to his work. Bruce Ackerman says that twice since the framing, the American people have changed their constitution without using the Article V process. The second time, in the 1930s, they dispensed with the written amendments contemplated by that provision.8 But the first time, in the 1860s, they used a procedure that resembled but was not Article V to produce three authoritative texts that had the appear- ance, but only the appearance, of Article V amendments Hyperfor- malists and hypertextualists, says Ackerman, cannot account for the Thirteenth and Fourteenth Amendments, which became part of the fundamental law through a process inconsistent with the formal rules of Article V's text.' This Article is concerned specifically with two objections to the ratification process. First is the claim that some or all of the southern state legislatures that ratified the Thirteenth and Fourteenth Amend- ments lacked the legal power to act for their states. Second is that 5 See Act of March 2, 1867, ch CLIIL, § 5, 14 Stat 428,429 (enumerating requirements for admission of senators and representatives). 6 See Donald Bruce Johnson, ed, 1 National Party Platforms 41, 46-47 (Illinois 1978) (Democratic and Republican platforms of 1872). 7 The Supreme Court cast a sidelong glance at these problems in Coleman v Miller, 307 US 433, 451-56 (1939) (Kansas), and its companion case, Chandler v Wise, 307 US 474, 477-78 (1939) (Kentucky), which refused to reach the merits of two challenges to state ratification of the proposed Child Labor Amendment. The leading law review articles on this subject are Ferdinand F. Fernandez, The Constitution- ality of the FourteenthAmendment, 39 S Cal L Rev 378, 379, 385 (1966) (defending the ratifica- tion process); Joseph L. Call, The Fourteenth Amendment and Its Skeptical Background, 13
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