W.D.Moore – APSA-03– Slaughter-House – p.3
depended for its authority.
3
The fourteenth amendment’s supporters, not surprisingly, have met these criticisms with
counter-arguments. For example, prominent Republicans defended the exclusion from the 39th
Congress of purported representatives of the Southern states as legitimate in the war’s wake. They,
as with the Johnsonian state legislatures that rejected the proposed fourteenth amendment, were
characterized as not sufficiently “republican” -- based on exclusions from the franchise and
otherwise. Extending this line of reasoning, leaders of Congress argued that the congressionally
reconstructed state legislatures had superior rather than inferior credentials and that their approvals
of the proposed amendment, as with those by other state legislatures, were constitutionally
effective. In any event, the amendment was proposed by two-thirds of the members of both houses
of Congress and was ratified by legislatures representing three-fourths of the states. Thus it was
possible to defend the fourteenth amendment as valid based on article V, interpreted formally.
4
The amendment’s proponents also defended the fourteenth amendment as substantively
legitimate. According to some of its defenders, for example, the fourteenth amendment’s primary
functions included reinforcing the thirteenth amendment and the Civil Rights Act of 1866 by
defining criteria for citizenship and by making explicit limits on the states that already had been
implicit within the constitutional order. While some viewed the fourteenth amendment as “radical”
and defended it as such, others denied that it was so fundamentally transformative.
Notwithstanding these differences, leading Republicans joined one another in claiming that the
changes brought about by the fourteenth amendment were valid based on their congruence with the
U.S. Constitution’s deepest commitments and aspirations, principles of constitutionalism, and
standards of political morality.
5
3
See, e.g., the sources cited by Walter Murphy, “Slaughter-House, Civil Rights, and Limits on Constitutional
Change,” American Journal of Jurisprudence, vol. 12 (1987), pp. 1-22, at p. 9, note 29.
4
See, e.g., Ferdinand F. Fernandez, “The Constitutionality of the Fourteenth Amendment,” Southern California
Law Review, vol. 39 (1966), pp. 378-407; John Harrison, “The Lawfulness of the Reconstruction Amendments,”
University of Chicago Law Review, vol. 68 (2001), pp. 375-462.
5
Republican positions on several of these issues are developed in the Report of the Joint Committee on
Reconstruction, First Session, Thirty-Ninth Congress (Washington: Government Printing Office, 1866). See also
Fernandez (1966); Murphy (1987).
Convention