Last edited Mon Jul 6, 2015, 02:09 AM - Edit history (1)
Ever since the 14th was passed, there have been questions as to the 14th amercement having being validly adopted by 3/4rds of the states. If more then 1/4 of the states had voted to REJECT the amendment, but then some of those states later ratify the amendment (But after other states had withdraw they ratification) does that meet the 3/4 requirement?
The Court has never ruled on the issue for it wants the 14th amendment to be valid, for without it, the Bill of Rights do NOT apply to the States, Corporations are NOT subject to Federal jurisdiction (Through subject to Federal Taxation), i.e. if a Corporation is a person or not, would be reserved to the States, the recent ruling that it is a denial of Due Process to deny Gay people from marrying would be kicked back to the states.
Here is a right wing site that goes into the arguments that the 14th was NEVER properly ratified and it fact was REJECTED by the States:
http://www.barefootsworld.net/14uncon.html
Southern Poverty Law Center points out the argument and dismisses them as a Political argument not a legal argument as to the 14th Amendment:
http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2000/summer/attacking-the-14th-amendment
Corporate America wants the 14th to be a valid amendment, thus a case challenging the ratification has NEVER made it to the Supreme Court. You have to be someone with standing to sue and the money to take the case all the way up to the Supreme Court while preserving your attack that the 14th was NOT properly ratified. That is harder then you may think, most attorneys do NOT attack the 14th for they know both liberals and conservative want the 14th amendment to be valid for without it the Bill of Rights only apply to laws of the Federal Government not the states.
Now, if a person has a claim, he has to be willing to take that claim and attack the 14th amendment in both Federal District Court and a Court of Appeals knowing the attack of passage of the 14th will fail at both levels and hope the Supreme Court will take the case to decide that issue (something I see the Court refusing to do, reviewing the other issue in the appeal instead if it does anything at all).
Remember you have to have standing and as seen in the California Gay Marriage ban case merely opposing something was NOT enough to have standing. Standing means you have something at risk in the litigation and in most cases people prefer to reduce the issue to what is at risk and give up any attack on the passage of the 14th Amendment.
Furthermore most lawyers will assume the Supreme Court will rule in favor of the 14th Amendment for without it most of the power over the states of the present Supreme Court disappears (They retain that power as to the Federal Government, but outside the 14th, there is NOT guarantee of Equal Protection of the law or Due Process). Thus Corporations being persons would be something left up to each state, as would be the present US Rules as to Freedom of Speech and Separation of Church and State (and the recent ruling making it unconstitutional NOT to permit people to own or carry firearms, another decision made under the 14th amendment).
Now, some people will attack the 1964 Civil Rights Acts as unconstitutional but that law was passed under the Federal Right to regulate interstate Commerce. I can see the Court restricting the reach of the 1964 Civil Rights Act, but not its coverage of people or acts.
I bring this up for if he was serious that is the route he would take, but he has decided NOT to do so but to opt instead for an amendment that accepts the passage of the 14th as valid but restricts Federal Government requirements. This is just something to make news on, not any real attempt to change the US Constitution.
Now the cite I give in many ways misapplies Coleman vs Miller, in the court just stated that it was up to the Political wings of the Government to determine ratification:
Thus the political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification.....
We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.
- See more at:
http://caselaw.findlaw.com/us-supreme-court/307/433.html#sthash.dc2S8XjG.dpufI.e. it is up to Congress to determine if an Amendment was properly ratified or not, not the court.
In Colemen the Court ruled it had no power to order Congress NOT to accept a ratification of an amendment that previously been rejected, that Congress has to address that issue first but only after Congress had determined 3/4rds of the States had ratified the amendment (in the proposed amendment in Coleman, 3/4rds of the States NEVER ratified the proposed amendment, it is still out there waiting to be adopted).
Thus the Courts Comments in Coleman's comment is dicta, which can be ignored as Dicta, but then it is indications how the court would decide the case. Now Coleman was decided in 1924, but as I said above, both liberals and conservatives want the 14th amendment and the Dicta in Coleman may be enough for them to hang they votes on, but it is an open question but one I suspect will never be heard outside of academic discussions.
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