W.D.Moore – APSA-03– Slaughter-House – p.2
justices’ decision. They remain to be addressed, one way or another, by practitioners and theorists
of various stripes, not only by federal judges and those interested in studying their decisions.
I. Introduction: Authority, Meaning, and the Fourteenth Amendment
Concerns about the fourteenth amendment’s initial authority have a long and deep pedigree.
Their common roots are in arguments that this “so-called amendment” was procedurally and
substantively invalid from the outset. The claims of procedural invalidity have focused on
irregularities at both the proposing and ratifying stages. Briefly, the 39th Congress that proposed
this amendment in the aftermath of the American Civil War did not include representatives of the
eleven formerly rebellious states. Those states were, however, treated as within the Union for some
purposes -- including ratification, allegedly in pursuance of article V, of the proposed fourteenth
amendment. But after legislatures purporting to represent the Southern states unanimously rejected
this proposal, the Republican-controlled Congress enacted military reconstruction and made
ratification of the amendment by reconstructed state legislatures a condition precedent to those
states’ regaining admission to representation within Congress. Critics of this addition to the text of
the U.S. Constitution did not concede that the congressionally reconstructed legislatures were
valid; and in any event their approval was dismissed as obtained through force and coercion rather
than deliberation and voluntary consent.
2
Paralleling these claims that the fourteenth amendment had not been proposed or approved
in ways satisfying the requirements of article V or principles of republican governance have been
arguments that this “so-called amendment” was also substantively invalid. Most of these
arguments have focused on the scope of the changes purportedly brought about by the text,
particularly across the dimension of federalism. These changes were too sweeping, argued some of
the fourteenth amendment’s critics, for a mere “amendment.” Others argued that the new text was
inconsistent with principles of constitutionalism presumed by the Constitution and upon which it
2
For criticisms of the fourteenth amendment as procedurally invalid, see, e.g., Joseph James, “Is the Fourteenth
Amendment Valid?,” Social Science, vol. 50 (1975), pp. 3-9; Forrest McDonald, “Was the Fourteenth Amendment
Constitutionally Adopted?,” Georgia Journal of Southern Legal History, vol. 1 (1991), pp. 1-20; Walter J. Suthon,
Jr., “The Dubious Origin of the Fourteenth Amendment,” Tulane Law Review, vol. 28 (1953), pp. 22-44.
Convention