The self-dubbed “patriot”, “sovereign-citizen”, and “militia” crowds have put forth many hair-brained pseudo-legal theories. They claim that Congress can only has jurisdiction within Wishington DC and the U.S. territories, and therefore they don’t have to pay Federal income tax. They claim that an obscure piece of Federal legislation called the Buck Act makes every Social Security participant into the taxable property of the Federal government, and that if they don’t sign any Social Security forms, they don’t have to pay Federal income tax. They claim that the 16th Amendment was never ratified, and therefore they don’t have to pay Federal income tax. They claim the Internal Revenue Code was never actually passed into law as laid out in the U.S. Code Annotated, and therefore they don’t have to pay Federal income tax. (Are you seeing a pattern here? )
But there’s one claim they make that seems a little less hair-brained than the others: that the 14th Amendment was “ratified” under highly questionable circumstances.
Business Internet, Voice & IT Services Provider - Alaska Communications contains the partial text of the judicial opinion handed down in Dyett v. Turner, 439 P2d 266 (1968), a Utah State Supreme Court case. As you know, in order for a proposed Amendment to be ratified as part of the Constitution, 3/4 of the States have to vote to ratify it. The justice(s) in the Dyett v. Turner decision point out that in order for the 14th Amendment to have been considered “ratified” by the required 3/4 majority of States, Secretary of State William H. Seward had to count all of the following States:[ul][li]Those States that voted “Yes” to its ratification from the beginning[/li][li]Those States that had voted “No” but later switched their vote to “Yes” under Federal garrison[/li][li]Those States that had voted “Yes” but later switched their vote to “No”[/ul]Even to a hardened anti-Sovereign-Citizen-crowd skeptic like myself, this sounds awfully fishy. I mean, sure, the Utah Supreme Court has no power whatsoever to decide Federal issues, and the justices’ opinion about the 14th Amendment is just that: an opinion. But I’ve never seen any counter-arguments to this claim of questionable ratification.[/li]
Have we only been acting as though the 14th Amendment is a real part of the U.S. Constitution, when in fact we’ve been bamboozled all this time?
You betcha, Lib. That damn 14th Amendment has been the source of nothing but repression and tyrrany ever since it was slipped into the Constitution. Now that the gun nuts and tax protestors have stumbled on the truth, I look forward to the inevitable day when state and local governments are once again free to establish state churches, impose cruel and unusual punishments, and eliminate all free speech.
Don’t you think that it might be a little late to start debating the ratification of the 14th Amend.? Don’t you suppose that the Federal Courts might have said something about its validity over the 133 years since its presumed ratification if there were a legitimate problem? Better you should be concerned with the insidious movement to restrict the Amendments operation and scope which has been most recently lead by Judge/Professor Bork.
As far as the Militia Movement is concerned, any effort to vitiate the 14th Amend. will require a connection with reality and level of legal scholarship, which the Movement, under any one of any number of names, has shown no taste for. So far, in my personal experience, there have been claims that the state courts have no legitimate power because they are not recognized by Article Three of the US Constitution, that the Ohio was not properly admitted to the Union because of a procedural error in its admission in 1803, and therefore no State subsequently admitted was validly admitted and as a consequence Ohio and post-Ohio state courts have no authority. This argument goes on that only Federal Courts have appropriate jurisdiction in these supposed States. Since the Post-Ohio States have no legal existence, papers filed with State and county offices have no effect. In order to be valid, for example, a mortgage must be filed with the recorder of deeds in Washington, D.C.
When these arguments have not worked, it has been argued that the State Courts are without power because the US flag in the courtroom has unauthorized yellow fringe. When that hasn’t worked it has been vociferously argued the a debt doesn’t have to be repaid because all the debtor received for his promise to repay with interest was a paper entry in the bank’s books or paper money, and this violates the Mint and Coinage Act of 1792 (or something like that).
If we are going to argue about the 14th Amendment, remember that except for some pretty general guidelines in Article Five, Congress gets to make the rules for amendments to the Constitution. While some may not like the rules that were in effect in 1868, they were in fact the rules.
My guess is that while the Utah court may whine and complain how they like, the fact is the amendment was ratified, and has been accepted into law for quite a few years now.
Sheesh. Reading about this gives one a headache. I doubt seriously that these tax protestors will have anymore of a chance. Sure, it all looks shady and illegal and unethical, but then if we toss the 14th on a techicality, we also make racism/aparthied constutionally legal as well. I doubt seriously that will happen, so I think we’re safe here.
I have just read the web page linked in Tracer’s post. This does not look or read like anything any responsible judge would ever put on the record. The citation looks legit, but I am at home and can’t access a law library that might have it. The web site I do find only goes back 4 or 5 years on Utah decisions and this case was supposedly decided in 1968, some 33 years ago. If some other doper has access to Pacific Reports or Utah reports, would you like to check it?
Quite frankly, the link reads like a written brief or argument by some one who is a whole lot more interested in having his say than receiving a favorable decision. It is not beyond the Sovereign Citizen types to claim that a brief submitted in a case is the court’s decision (after all, that’s what the court should have done). It is also conceivable that the whole thing is just made up. Inquiring minds want to know. Somebody else do the research.
Apparently, they have, in Gordon Epperly et. al. v. United States. I’ve been told that judicial decision (not merely dicta) in the Epperly case said that the validity of the 14th Amendment’s ratification was a “political question”, and not a “judicial question” – hence, the Court didn’t have the power to decide whether it was properly ratified or not.
The Epperly case cites Coleman v. Miller, 307 U.S. 433 (1939), where the U.S. Supreme Court reached the same decision in regard to the **non-**ratification of the proposed Child Labor Amendment (which had been proposed by a 2/3 vote of both houses of Congress in June 1924 but just barely seemed to miss ratification by the States). This, too, was deemed to be a political question not subject to judicial review.
The whole federal guvment is illegal because the declaration of independence was not ratified by the King of England. You should send your taxes to Buckingham Palace.
That’s funny…this gun nut is 100% in favor of the 14th Amendment. It figures strongly into my feeling that the bulk of state-level weapon legislation (concerning both firearms and “other” weapons) is unconstitutional. The 2nd Amemdment guarantees on a federal level my right to arm myself (with arms, not ordnance, of course), and the 14th protects it on a state level. After all, “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
I was referring to the serious gun nuts, Joe, not the run-of-the-mill gun owner. You know, militia types and Y2K survivalist types.
However, to my knowledge, no court has ever used the 14th Amendment to apply the 2nd Amendment against the individual states. It’s actually an interesting point–although most of the bill of rights protections have been found to apply to the states due to the 14th Amendment, those rights have been considered and applied against the states only individually, rather than incorporated en masse. I seem to remember that one or two of them have been affirmatively rejected as applying to the states (the grand jury requirement springs to mind).
I forgot to mention: Epperly also cites U.S. v. Stahl, 792 F.2d 1438 (9th Cir. 1986), a Federal Circuit court case. In Stahl, the Federal Courts declared that the decision as to whether the sixteenth amendment was properly ratified was a political question, not a judicial question, and thus the Courts had no say in the matter.
It seems pretty obvious that the Federal courts have not, and will not, say anything one way or the other as to the validity of the 14th Amendment’s ratification.
Meanwhile, Spavined Gelding wrote:
Since I posted the OP, I’ve managed to find the FULL text of Dyett v. Turner. It’s at http://home.hiwaay.net/~becraft/Dyett.htm. Apparently, the case dealt with a criminal who had to be released because the lower court didn’t explicitly tell him that he was entitled to free legal counsel; the Utah Supreme Court judge who delivered the Opinion for the case thought this was a rather stupid reason to let somebody go. It was in this context that the whole issue of the questionable ratification of the 14th Amendment was presented.
Spavined Gelding wasn’t the only one who thought that quote was pretty whacked-out. I stopped by the law library on the way home yesterday to make sure teh opinion was real, and it was right there in the P.2d reporter. I also did a quick check to see if it had been cited in any other opinions, and it had. The Utah Supreme Court was the only court to cite Dyett, and it did so around ten times in various majority and dissenting opinions up through the late-70s/early-80s. Not much to those cases, other than that it was pretty obvious a few of the judges on the court had, shall we say, a few objections to the Supreme Court’s jurisprudence.
Good Lord, isn’t that a piece of work. One member of the Utah Supreme Court throwing a major temper tantrum, three members concurring in result, i.e., the defendant doesn’t get out of jail on Utah’s order, and one member concurring in result “and reasoning,” whatever that means. It looks as if three Justices quietly disassociated from the Justice Ellett’s diatribe. I suppose that the federal court later granted the prisoner’s application for the great writ.
The somewhat intemperate and unjudicial tone of the opinion is perfectly consistent with the hostility toward the Warren Court in the 1960s. The US Supreme Court made a number of ruling that simply infuriated the more conservative elements in legislatures, police departments, prosecutors’ offices and judges’ chambers. On 14th Amendment grounds the US Supremes said that the States had to provide attorneys for defendants, had to tell the defendant the he could have a lawyer at public expense, could not question a prisoner until the lawyer got there if the prisoner asked for a lawyer, had to stop questioning a prisoner if the prisoner did not want to talk, tell a prisoner that he did not have to answer questions and could not at trial argue that because the defendant did not talk he must be hiding something. The outrage about these decisions was something wonderful to behold. “Impeach Earl Warren” billboards appeared all over. Politicians ran for State and national office on a platform of overturning the Warren Court 14th Amendments. Because the Public Accommodation cases were starting to come in then, there was a political alliance of Southern segregationists, States Righters, and Get-tough-on -crime types. In a fair number of State Courts there was considerable resentment over the Federal Courts dictating how the State must do things. The Utah decision is probably the consequence of all those resentments in a State that has always been a little spooky about the Supremacy Clause.
If there is an irony in this it is that as a more conservative US Supreme Court has emerged, in a number of States, my own included, the State courts have occasionally held that a practice that is permissible under Federal law and the US Constitution is violative of the State Constitution.
So, Justice Ellett was basically folding his arms and pouting, then, it seems.
But what about his allegation that the 14th Amendment wouldn’t have passed unless the votes from States that had originally voted for its ratification, but later changed their votes to be against ratification, were counted as ratifying? Are there any counter-arguments to this anywhere to be found?
If a state can’t take back its vote in favor of ratification after the amendment has passed (which seems obvious to me), why should it ever be able to call a do-over on ratification?
Of course, “once ratified, always ratified” is not the only way to apply Article V, but it is certainly a reasonable interpretation. Besides, to steal the usual conservative argument about the Constiution, it would be improper to read something like a do-over clause into the text when it isn’t there in the first place.
For a pretty decent although dense discussion of the ratification of the 14th Amendment and the other Reconstruction Amendments, 13 (slavery) and 15 (race, color or previous condition of servitude), take a look at Ackerman, Bruce, WE THE PEOPLE, Vol. II, pp 99-115 (Belknap/Harvard Press.1998). The thrust of the discussion is that the political argument in Congress over the status of the Southern States as members of the nation, a new electorate that briefly included Blacks, the conditions placed by a Republican rump Congress on the admission of Southern senators and representatives and the creation of military districts in the former Confederacy, created a situation in which it could be argued with a straight face that the requirements of Article V had been met. It wasn’t pretty and it wasn’t fair play, but, by God, it worked.
Since it happened almost 135 years ago, since the Federal Courts will not consiter the question and since it has become a foundation of our jurisprudence, the validity of the ratification of the 14th Amendment is a closed question, save as a study in political expediency. Contentions that the Amendment is not the law of the land are about as useful as arguments about yellow fringe on the national flag.
However the Supreme Court doesn’t get involved in to when someone rescinds their ratification vote. Some states rescinded their ratifications of the Equal Rights Amendment, but whether or not those recissions mattered never came up.
As for the 14th Amendment, once Secretary of State Seward could see that there were enough states had sent in certificates of ratification, he proclaimed the 14th Amendment passed.
The Constitution works because we all buy into the concept that it is the ultimate legal authority in the U.S. If you start to pick away at it because of technicalities, there won’t be anything left.
After all, who told the Constitutional Convention that only 9 of the 13 states needed to ratify the document to begin with?
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