Forrest McDonald's 1991 case: a Senate vote one short, rescinded ratifications, military rule. Corporate personhood and Section 4 hinge on the ratification record.
Historian Forrest McDonald argued in a 1991 article in the Georgia Journal of Southern Legal History that the 14th Amendment was never legally ratified. His case is a chain of procedural failures: a Senate vote one member short of two-thirds, a seated senator expelled to close the gap, northern states that took back their ratifications, and southern governments forced to approve under military occupation.
The stakes extend past Reconstruction. The amendment's equal protection clause became the basis for corporate personhood, the doctrine from Santa Clara County v. Southern Pacific Railroad (1886) that lets companies such as Apple assert constitutional rights in federal court. Section 4, the debt clause, declares that the validity of the public debt of the United States "shall not be questioned." That language resurfaced in the 2023 debt-ceiling standoff as a claimed basis for keeping federal bond payments current without a new borrowing cap.
McDonald did not frame his research in market terms. The ratification record he assembled is the argument, and it reaches both doctrines if taken at face value.
McDonald was one of the most distinguished American historians of the postwar generation. We the People, his 1958 study of the Constitution's drafting, made his name, and he remained at the forefront of the profession until his death.
He died in 2016.
The amendment's first wound came in the Senate. Article V requires two-thirds of each chamber to propose an amendment, and the 14th drew 33 votes, one short of the two-thirds required. President Andrew Johnson, in McDonald's summary, questioned the legitimacy of an amendment proposed by a Congress that represented only twenty-five of the thirty-six states, with the seceded South entirely absent.
The numbers behind that vote, McDonald wrote, "mask some chicanery." John P. Stockton of New Jersey, an outspoken opponent of the amendment, had taken the oath of office and been seated when the Thirty-ninth Congress convened on December 5, 1865. When informal polls showed the amendment one vote short, the Radicals moved to unseat him.
They needed a two-thirds vote to expel a seated member under Article I, Section 5, a margin they could not reach. Their workaround was a motion not to seat him, offered against a man already sitting in the chamber.
The motion failed 22-21. Overnight, one senator changed his vote, and the next day the same motion passed. Stockton was out. McDonald called the expulsion unconstitutional, and its purpose explicit: the 33 affirmative votes could not become a two-thirds majority any other way. "Only in that way," he wrote, "did the thirty-three votes for the Fourteenth Amendment become a two thirds majority."
McDonald also dismissed a common objection to the result: the seceded states, absent from Congress, would have voted the amendment down. The objection fails, he wrote, because the Constitution requires approval by two-thirds of the members present.
The ratification process accumulated its own irregularities. Every southern state except Tennessee voted against the amendment at first, despite an implied threat that rejection would block readmission to the Union. They reversed course only after the threat was made explicit. Three northern states that had already ratified later rescinded their votes; McDonald's arithmetic treats the rescissions by New Jersey and Ohio as illegal, and their original ratifications stand. The debates themselves left the required margin unsettled: supporters and opponents disagreed over whether ratification needed three-quarters of the twenty-five remaining states or of the original thirty-six.
Congress answered the southern no-votes with the Reconstruction Act of March 2, 1867, passed over Johnson's veto days before the Thirty-ninth Congress expired, and amended shortly after by the Fortieth Congress. The act declared that "no legal state governments" existed in the ten rebel states that had refused to ratify. It divided the South into five military districts and replaced civilian governments with martial law. New elections gave black men the vote; whites who had taken part in the rebellion or given aid and comfort to the rebels could not vote. The conventions elected under those rules had to write constitutions providing for black suffrage. Majorities of eligible voters had to ratify those constitutions, and Congress had to approve them. Only after governments organized under the new documents ratified the 14th Amendment would Congress end military rule and readmit those states.
McDonald called this the point on which the constitutionality of the amendment's adoption turns. An amendment can be ratified only by a state that is in the Union. Congress, however, would admit no southern state until the amendment had been ratified. He ran the arithmetic on the most generous assumptions available. Grant that the amendment was properly proposed, he wrote. Grant that the ratifications in Tennessee, Oregon, and West Virginia were valid. Grant that New Jersey and Ohio could not legally rescind. Grant even that the Reconstruction Act was constitutional, and that governments formed under it could validly ratify. Even so, as of April 1, 1868, six more states were still required to validate the amendment.
Congress closed the final gap with an act passed June 25, 1868. Its preamble declared that several southern states had "framed constitutions of State government which are republican." Its first section made readmission automatic: each state would be "entitled and admitted to representation in Congress as a State of the Union" the moment it ratified the amendment. McDonald's objection is compact. The southern governments were not states when they ratified, because a state already entitled to representation would have had no need of readmission. Ratification by a non-state, on his reading, is no ratification at all.
He condensed the case into one sentence: "Obviously, however, they were not states at the time they ratified, for if they were, they would already have been 'entitled' to representation."
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