THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE.

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.

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