During Reconstruction the Thirteenth, Fourteenth, and Fifteenth Amendments were added to the Constitution. The circumstances under which the Reconstruction amendments were proposed and ratified were extremely unusual, and at the time serious objections were raised to the legality of the proceedings. The amendments’ lawfulness remain a nagging problem.
There are two important lines of objection to these amendments’ adoption.
One is that some or all of the southern state governments that participated in ratifying them were not legally competent to do so because of the irregular fashion in which those governments had been created.
The other objection is that some or all of the southern ratifications were extorted from the states through unlawful federal threats.
Article V of the Constitution seeks to capture, in the bottle of legal form, the lightning of American popular sovereignty.
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 Article V is no exception to this principle.
If the stakes are low such slippage 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, in 1992. Article V mentions no time limit yet two hundred and four years seems a bit of a stretch since there is the absence of a contemporary consensus that would truly reflect popular consent.
Sometimes the stakes are higher, as they were in the 1860s. According to the official documents, Congress proposed and three-fourths of the state legislatures ratified three constitutional amendments of considerable importance. The Thirteenth Amendment purported to eliminate slavery, the Fourteenth was intended to protect the freed slaves’ civil rights and sought to punish the former rebels, and the Fifteenth forbade race discrimination with respect to males voting.
During the period of Reconstruction, the Article V process was never truly being followed. Much of the country was not represented in the Congress that proposed the Thirteenth and Fourteenth Amendments.
State governments in the South were being made, unmade, and remade through extraordinary and extralegal processes by the federal government creating doubts as to whether the resulting political organizations were truly empowered to speak for their states in ratification.
Many of the Southern State 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 excluded from representation in Congress would be restored when they had met a series of conditions, including ratification of the Fourteenth Amendment. In 1872 both major parties accepted all three albeint at the point of a military bayonet.
The claim that some or all of the southern state legislatures that ratified the Thirteenth and Fourteenth Amendments lacked the legal power to act for their states can be logically made as the legislators seated were not freely elected by the citizens’ of the former secessionist states.
Secondly,those ratifications, even assuming if made by valid state legislatures, were void because they were made under unlawful political pressure from the national government.
The Reconstruction amendments may be considered “legally effective” by common usage but with the discrepancies in following Article V they were, and are, unconstitutional.
The argument that the Reconstruction amendments are “legally effective” is formalistic and poor logically: it does not deny that during Reconstruction Article V was, at best, circumvented and failed to serve its purpose of balancing the federal and national principles.
Moreover, the amendment process included illegal acts by Congress.
Since a contract is a legally binding agreement, once you enter into a contract with another party, you and the other party are both expected to fulfill the terms of the contract. But it’s possible for an otherwise valid contract to be found unenforceable in the eyes of the law.
It’s expected that all parties to a contract have the ability freely agree to exactly what it is they are agreeing to. If it appears that one side did not have this capacity, (as in lawful ability to enter into the contract), the contract may be held unenforceable
Duress, or coercion, will invalidate a contract when someone was threatened into making the agreement. A common example of duress is blackmail.
If one party used excessive pressure against the other during the bargaining process, and that for whatever reason that other party was overly susceptible to the pressure tactics the resulting contract might be found unenforceable on grounds of undue influence.
Unconscionability means that a term in the contract or something inherent in or about the agreement was so shockingly unfair that the contract simply cannot be allowed to stand as;
-whether one side has grossly unequal bargaining power
-whether one side had difficulty understanding the terms of the agreement (due to language or literacy issues, for example), or
-whether the terms themselves were unfair
So, the question remains, based upon the facts that we know, (no matter that they are commonly covered over and ignored), are the Reconstruction amendments Constitutional?
I will simply let my readers decide for themselves but will remind you of a quote often attributed to British Statesman Winston Churchill; “History is written by the victors.”
The really frightening thing about totalitarianism is not that it commits ‘atrocities’ but that it attacks the concept of objective truth; it claims to control the past as well as the future.
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