REMARKS IN THE SENATE, ON THE RESOLUTIONS OF THE LEGISLATURE OF OHIO
RESCINDING ITS FORMER RESOLUTION IN RATIFICATION OF THE FOURTEENTH
AMENDMENT, JANUARY 31, 1868.
The resolutions from the Legislature of Ohio are so important in
character, and so wholly without precedent, I believe, in our history,
that I think they justify remark even by a Senator who has not the
honor of any special association with that State.
It seems to me very clear that the authors of these resolutions have
accomplished nothing except to exhibit their own blind prejudices. By
the Constitution of the United States, a State may give its assent to
a Constitutional Amendment. There is no provision for any withdrawal
of such assent, when once given. The assent of the State, once given,
is final. A State, I do not hesitate to say, can no more withdraw
such assent than it can withdraw from the Union; and on the latter
proposition I believe there is now a universal accord.
But, happily, Sir, this extraordinary effort of an accidental
Legislature is absolutely impotent. The Amendment in question is
already a part of the Constitution of the United States, and in full
vigor, even without the assent of Ohio. By a report from the Secretary
of State it appears that there is official evidence of the assent of
the Legislatures of Connecticut, New Hampshire, Tennessee, New Jersey,
Oregon, Vermont, New York, Illinois, West Virginia, Kansas, Nevada,
Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania,
Michigan, Massachusetts, and Nebraska,--being twenty in all, without
Ohio. To these now we may add Iowa, which has given its assent very
recently, and also Maine, which has notoriously given its assent,
although I understand it has not been officially communicated to
the Department of State,--making, therefore, twenty-two States,
even without Ohio. Twenty-two States are more than three fourths of
the Loyal States, or, in other words, of those States that at this
moment have Legislatures. The full requirement of the Constitution is
therefore met.
This Amendment was originally proposed by a vote of two thirds of
Congress, composed of the representatives of the Loyal States. It
has now been ratified by the Legislatures of three fourths of the
Loyal States, being the same States which originally proposed it
through their representatives in Congress. The States that are
competent to propose a Constitutional Amendment are competent to adopt
it. Both things have been done. The required majority in Congress
have proposed it; the required majority of States have adopted it.
Therefore, I say, this resolution of the Legislature of Ohio is _brutum
fulmen_,--impotent as words without force. It can have no practical
effect, except to disclose the character of its authors. As such it may
be dismissed to the limbo of things lost on earth.
Mr. Johnson, of Maryland, followed with some remarks, to which
Mr. Sumner replied:--
MR. PRESIDENT,--I wish to remind the Senator from Maryland of the exact
words of the Constitution, which were not, it seems to me, in his
mind when he spoke. An Amendment, when proposed, “shall be valid to
all intents and purposes as part of this Constitution, when ratified
by the Legislatures of three fourths of the several States.” It does
not say, “when ratified by three fourths of the several States,” but
“by the ‘Legislatures’ of three fourths of the several States.” Now,
if there are States without Legislatures, they can have no voice in
the ratification. Apply this practically. Three fourths of the actual
Legislatures of this Union have ratified the proposed Amendment, and
I insist, on the text of the Constitution, and also on the reason
of the case, that such ratification is complete. But I am unwilling
that this argument should stand merely on my words. I introduce here
the authority of the best living text-writer on the jurisprudence
of our country, who has treated this very point in a manner which
leaves no opportunity for reply. I refer to the book of Mr. Bishop
on the Criminal Law, who, in one of his notes,[81] considers whether
the Amendment of the Constitution abolishing Slavery had been at the
time he wrote adopted in a constitutional manner. Of course the very
question which we are now discussing with reference to the Fourteenth
Amendment arises also on the Amendment prohibiting Slavery. They are
both in the same predicament. If the Fourteenth Amendment is not now
a part of the Constitution of the United States, then the Amendment
prohibiting Slavery is not a part of the Constitution of the United
States. They both stand on the same bottom; they were both proposed by
Congress in the same way,--that is, by a vote of two thirds of the
representatives of the Loyal States; and they have both been ratified
by the votes of three fourths of the States having Legislatures. I send
to the Chair the work of Mr. Bishop, and I ask the Secretary to be good
enough to read what I have marked.
The Secretary read the note above cited.