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.