The odd history of the 14th amendment

Today is the 145th anniversary of the ratification of the 14th amendment.

Unless maybe it wasn’t ratified until the 21st.

Or maybe even the 28th.

It depends on how you count, you see, and on who’s doing the counting.

The amendment was proposed in Congress on the 13th of June 1866,¹ and received by the Department of State on the 16th of June.²

That receipt by the State Department was what triggered the process of sending the amendment to the states for ratification. Like any amendment, it needed three-fourths of the states to ratify it,³ and with 37 states then in the Union, the approval of 28 states was required.

The first to ratify was Connecticut, on 25 June 1866.⁴ And a string of other northern states followed in 1866 and 1867:

And that’s where things sat until early in 1868, when things went wonky.

On the 15th of January, 1868, Ohio changed its mind and rescinded its ratification of the 14th amendment. It was joined in that on-again-off-again vote by New Jersey on the 24th of March 1868. In the meantime, on the 16th of March, Iowa had ratified the amendment.⁶

Arkansas ratified on 6 April, Florida on 9 June, North Carolina on 4 July, and Louisiana and South Carolina on 9 July.⁷

So… as of the 9th of July 1868, 28 states had ratified the 14th amendment. But two had changed their minds. And nobody was entirely sure what that meant. Secretary of State William Seward sent a certification to Congress on the 20th of July in which he took the position that it was “a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual for withdrawing the consent of the said two States, or of either of them, to the … amendment…”⁸

And he then hedged his bets:

I … do hereby certify that if the resolutions of the legislatures of Ohio and New Jersey ratifying the … amendment are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of those States, which purport to withdraw the consent of said States from such ratification, then the … amendment has been ratified…⁹

That’s how today could be the 145th anniversary of the amendment. The 28 states needed would all have ratified it by the 9th of July.

And there are two different ways to think of the 21st of July as the anniversary. First, Congress went ahead on the 21st, in reliance on Seward’s certification, and passed a joint resolution declaring that the amendment had been ratified.¹⁰

And by that date, two more states had ratified the amendment. Alabama ratified the 14th amendment on the 13th of July,¹¹ so that’d make up for Ohio. And Georgia ratified it on the 21st of July,¹² and that’d make up for New Jersey.

So you can count the 21st because that’s when Congress acted, or you can count the 21st because there were 28 states no matter what the story was with Ohio and New Jersey.

But what about the 28th? Well, see, Seward wasn’t so sure about Ohio and New Jersey. So after official word of Georgia’s ratification reached him, he sent Congress another certification on July 28th unconditionally saying the 14th amendment had passed.¹³

So maybe it’s the 28th that’s the anniversary.

But no matter when the anniversary really is, the amendment itself is one of the most far-reaching ever adopted. It provides, in § 1, that:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.¹⁴

And just think of the lovely records that kind of language has led to…

 
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Image: Wikimedia Commons, user Snowfire.