The most interesting part about this whole discussion (at least for me) is that more mainstream right-wingers haven’t stumbled onto the idea of repealing the 14th Amendment. Big 14 is the primary means through which the Federal government has legislative and regulatory power over state governments and governance. It isn’t the only one (see the commerce and “neccessary and proper” clauses, for instance), but with the continuing move towards strict construction and generalized conservativism on the Supreme Court bench (for instance, Swett v. Painter, in which the Rhenquist court struck down a Federal law applied to the states via the commerce clause- the first such incident in something like 50 years), the 14th is, IMHO, one of the few/only “big stick(s)” that the Federal Government can wield over the states. It is certainly the only avenue under which social change/reform can be nationally enacted within the states- commerce clause legislation that attempts to address social issues, especially after Swett, is a snowball in the firey hell of the Supreme Court, as far as I can tell.
In addition, the 14th serves as the Constitutional device through which Roe vs. Wade, Eisenstat vs. Baird (but not Griswold vs. Connecticut, funnily enough), and basically every privacy and personal autonomy right has been enacted. Crushing the 14th would presumably leave the abortion right sitting like a deer in the headlights, as well as basically guaranteeing that the states could do whatever the hell they wanted to their citizens without Federal intervention. But, I guess you get what you deserve if you live in the South.
Ratified is ratified. No do-overs, or you’re just one of those damn activist liberals reading stuff into the constiution that isn’t there in order to fit your own liberal agenda.
The argument about the ratification of the Reconstruction Amendments does not center on the head count of states that certified approval to the Sec. of State. The argument, such as it is, focuses on the representative nature of the state legislatures in the former Confederate States. Those approvals were given by State legislatures which were operating under rules established by legislatures that had a very limited constituency. Under the rules established during the war as a war measure, only people who had taken an oath of allegiance to the US were permitted to vote and no State government was recognized until 10% of the number of people who voted in the 1860 election had taken the oath. In general the 10% requirement was met by signing up former slaves who under the Emancipation Proclamation were free men. The result of this was a series of Republican dominated rump State legislatures which were elected without the participation of the vast number of White voters. These are the Southern state legislatures that ratified the Reconstruction Amendments. Since the rump legislatures did what the national government and Congress wanted, no one was inclined to ask too many questions.
As far as the southern States that had seceded from the Union are concerned, would they have been counted as “States”? They had seceded and had to be readmitted. Some of them were not readmitted until 1880 or so. So, they were not States of the Union at the time of the passage of the 14th Amendment technically, and the 3/4 of the States requirement would have been reduced pro rata.
The whole question is now moot. Whether the enactment of the 14th Amendment was proper under the Constitution, it has been de facto an amendment.
