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University of Chicago Law Review

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375

Abstract

During Reconstruction the Thirteenth, Fourteenth, and Fifteenth Amendments were added to the Constitution. The circumstances under which the Reconstruction amendments were proposed and ratified were extremely unusual, and at the time serious objections were raised to the legality of the proceedings. Although for practical purposes that controversy is long over, the amendments' lawfulness remains a nagging problem. There are two important lines of objection to the amendments' adoption. One is that some or all of the southern state governments that participated in ratifying them were not legally competent to do so because of the irregular fashion in which those governments had been created. The other objection is that some or all of the southern ratifications were extorted from the states through unlawful federal threats. This Article reviews the relevant history and discusses legal rationales under which the constitutional amendments were valid even if there were serious illegalities in the creation of the southern state governments. According to one such rationale, southern ratifications were unnecessary because the ex-Confederate states were excluded from the denominator on which the Article V super-majority is calculated. The Article concludes that this thesis is plausible but ultimately unpersuasive. Another theory is that the identification of a state's lawful government is a political question to be decided by the political branches of the national government and ultimately by Congress, and that Congress endorsed the ratifying southern governments, thereby binding all other actors to treat those governments as lawful. The Article reviews the arguments for and against this version of the political question doctrine and regards the issue as an open one. Finally, the southern ratifications may have been effective, despite legal defects in the ratifying governments, because those governments had de facto authority and hence were able to bind their states. The legal authority of de facto governments is a familiar principle of international law that has been followed in American constitutional practice, and the Article endorses it in this context. Either the political question or the de facto government thesis must confront the argument that southern ratifications were invalid because extorted through unlawful federal threats. The Article maintains that it is doubtful whether the ratifications were so extorted, and claims that in any event Article V of the Constitution does not implicitly invalidate ratifications made in the face of illegal threats. The conclusion argues that this result, under which constitutional amendments can be validly ratified even when principles of state autonomy are violated, is nevertheless consistent with the purpose of Article V and the constitutional system in general. Certainty as to the text of the Constitution is more fundamental than more substantive considerations.

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