I begin my three stage argument by elaborating on Chief Justice Hughes' gesture toward the dark clouds surrounding the ratification of the Fourteenth Amendment. As the Coleman court intimates, ten of the existing state governments of the South, along with three border states, solemnly rejected the Republicans' initiative during the months following its proposal in June, 1866. n97 If the Reconstruction Congress had accepted these rejections, it would have been obliged by the rules of Article Five to conclude that its proposed Amendment was dead. Thirteen rejections is a lot more than the nine then required to invoke the veto formally accorded one-quarter of the states by the rules of Article Five. n98 The Reconstruction Republicans in control of Congress, however, refused to accept this outcome. Instead, they passed a series of Reconstruction Acts that sought [*501] nothing less than to destroy the dissenting governments of the South and to reconstruct them on a basis that would make ratification of the Amendment more likely -- instructing the Union Army to register freed blacks as well as whites in the reconstructed state electorates (note that this was before the Fifteenth Amendment). n99

The obvious question this raises is whether congressional reconstruction could be justified under the clause making the United States a guarantor of the republican form of government in all the states. n100 Even if this difficult problem is solved satisfactorily, it only prepares the way for a truly unresolvable dilemma. The impossible question arises when we see how the Reconstruction Act treated the new black-and-white Southern governments even after they had organized themselves in complete compliance with Congress' demands. Section Five of the first Reconstruction Act denied these new democratically elected states the authority to send senators and representatives to Congress on an equal footing with the other states until they ratified the Fourteenth Amendment! n101 Now there is simply no way that this demand can be reconciled with the rules of Article Five. If these rules mean anything, they deny Congress the authority to bootstrap its amendments to validity by destroying dissenting governments and then denying congressional representation to the new ones until they accept the constitutional initiatives that the preceding governments found unacceptable. Can [*502] it be thought surprising that Secretary Seward's first Proclamation concerning the Fourteenth Amendment expressed doubts about the Amendment's validity when state consent had been procured under ground rules at such variance with those specified by Article Five? n102

As if this were not enough, the formalist should be on notice that the Republican decision to play fast and loose with the rules of Article Five did not begin in 1868. Instead, the chain of "historic precedents" that mark the break with the Federalist rules begins with the Emancipation Proclamation of 1863. n103 For present purposes, I restrict myself to a single additional problem, which I will call the Thirteenth-Fourteenth Amendment Paradox. The problem can be introduced with a single fact: The very governments Congress destroyed in response to their veto of the Fourteenth Amendment played a critical role in the ratification of the Thirteenth Amendment. n104 How, then, could it be that these governments were legitimate enough to validate the Thirteenth but not legitimate when they refused to validate the Fourteenth?

The Paradox deepens when we introduce another fact about the months between February and December 1865 -- the period during which the states were considering whether they would ratify the Thirteenth Amendment. As the first set of post-War governments in the South were considering ratification, they were also selecting Senators and running elections for Representatives to the House. By early December, then, the Southerners were sending two legal signals to Washington: The first consisted of ratifications of the Thirteenth Amendment; the second, senators and representatives to the Thirty-ninth Congress, scheduled to convene on December 4, 1865.

These two communications were treated very differently when they were received in Washington. On December 18, Secretary Seward proclaimed the Thirteenth Amendment valid, explicitly citing the Southern ratifications in his official Proclamation. n105 Two weeks earlier, the Republicans in Congress refused to seat any of the Southern representatives, [*503] and continued to deny the Southern states representation throughout the entire period during which the Fourteenth Amendment was proposed and "ratified." n106 Southern exclusion, moreover, was a necessary political condition for the Republicans to gain the two-thirds vote required by Article Five for the proposal of a constitutional amendment. n107 How, then, can the formalist explain the legitimacy of the proposal of the Fourteenth Amendment by the Rump Republican "Congress" without simultaneously delegitimizing Secretary Seward's Proclamation validating the Thirteenth Amendment?

Let's begin with some numbers. In 1865 there were thirty-six states; eleven were in the Confederacy and by Appomattox, twenty-five states supported the national cause. There were two theories on which an amendment could be ratified. First it could secure either twenty-seven (3/4 of 36) states. Alternatively, it might need only nineteen Union ratifications (3/4 of the 25) on the assumption that the Southern states were out until brought back in. Lincoln believed that excluding the Confederate states from the ratification process ""would be questionable and sure to be persistently questioned'" (p. 148) and in the brief period in which exclusion was viable, even the radical Henry Wilson, who thought it legitimate, eschewed reliance upon the nineteen Northern ratifications.

The Confederacy presented a constitutional dilemma. Once Andrew Johnson started with his vetoes, if the South were admitted to Congress, its representatives could join with Northern Democrats to block any legislation implementing the Thirteenth Amendment and, indeed, any further constitutional change. Yet if the South were excluded as states, no constitutional amendments beyond the Thirteenth could hope to achieve nineteen Northern ratifications. n7

On December 18, 1865, Secretary of State William Seward proclaimed the Thirteenth Amendment had been ratified by the requisite twenty-seven states (including the constitutionally intriguing West Virginia as well as eight from the Confederacy). Yet, two weeks earlier, Republican majorities in the Thirty-Ninth Congress had refused to seat Southern Representatives and Senators. The exclusion included Horace Maynard from eastern Tennessee, even though he had been seated during the Civil War!

[*551] Problem One, therefore, is how a state can ratify an amendment but be denied representation in the national government. Problem One, however, is easy compared to Problem Two. With the South excluded, as it would be throughout the Thirty-Ninth Congress, the Congress by 2/3 votes of its Northern members in both Houses proposed the Fourteenth Amendment. The new amendment could not receive the needed nineteen Northern ratifications. Therefore, to reach the three-fourths mark, some, perhaps all, states of the Confederacy were essential. With the exception of Tennessee (which ratified quickly and was rewarded with its Congressional seats), the Confederate states rejected the Fourteenth Amendment. Congress responded, after an extensive debate, by adopting a policy of military reconstruction. It wiped out the existing Southern governments that had ratified the Thirteenth Amendment and replaced them with new governments, which were informed that they could not have Congressional representation until the Fourteenth Amendment was ratified. Like Andrew Johnson facing conviction on the articles of impeachment, the South,too, switched.

Problem Two requires explanation of how a state can be stripped of Congressional representation unless and until it agrees to a proposed constitutional amendment. Not surprisingly, the text of Article V does not authorize excluding states from Congress unless they assent to proposed amendments. Conversely, Article V textually states "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." One need not be a dimwitted hypertextualist to understand that no representation for the South is not equal representation with the North.

....But no stalemate occurred because the 1866 elections were a spectacular Republican triumph. Republicans carried the House by 144-49, won every Northern legislature, and every contested gubernatorial race. By winning in the states that counted, the Republicans made them the states that were allowed to count. Meanwhile, Johnson clung to his former position and his hope for a different outcome in the 1868 elections....

The same numerical logic that had been operating to exclude the South was driving these events. If Johnson and the Democrats could successfully hold out, they could turn the 1868 elections into a battle over whether to adopt the Fourteenth Amendment (and whether to seat the South without the Fourteenth). In one sense, this was hardly an idle hope: Northern citizens would eventually tire of the constant political battles and some form of normalcy would reassert itself. The question was when. Because it might be 1868, the Republicans wanted the Fourteenth on the books before the elections. ...
Second, after the Senate heard one of the House managers, Ben Butler, argue that Johnson could be convicted not only for actual crimes but also if his actions were "subversive of some fundamental or essential principle of government or highly prejudicial to the public interest," Johnson switched. (p. 227) (emphasis in original) He assured moderate Republicans that he would do nothing to violate the laws or Constitution if acquitted, but more importantly, he ceased his obstruction of Congressional Reconstruction in the South...