We are having the wrong argument about the 14th Amendment. The debate should not center on birthright citizenship (a ridiculous concept). It should center on whether the amendment itself was ever legitimately ratified. If constitutional government means anything, that question cannot be ignored simply because the amendment became politically entrenched.
After the Civil War, Congress did not propose the 14th Amendment and allow the states to freely decide. Under the Reconstruction Acts of 1867 and 1868, former Confederate states were divided into military districts, placed under federal supervision, required to rewrite their constitutions, and told that ratifying the amendment was a condition for regaining representation in Congress.
This came after a clear rejection. North Carolina rejected the amendment on Dec. 14, 1866. Louisiana rejected it in 1866. South Carolina rejected it on Dec. 20, 1866. These were not close calls or procedural delays. These were direct refusals by sovereign states to adopt the amendment as written.
The states were coerced.
A constitutional amendment is supposed to reflect the voluntary consent of sovereign states. Instead, the federal government conditioned political participation on agreement with a constitutional change drafted in Washington. States were not freely deciding whether to adopt the amendment; they were required to ratify it as the price of restoring their place in the Union.
Defenders of Reconstruction point to the Guarantee Clause, arguing Congress had a duty to ensure republican government in the South. But that justification collapses under its own weight. The same clause meant to protect representative government was used to impose military administration, restructure electorates, and dictate the terms of constitutional change. In practice, “democracy” became federal control backed by force.
The legitimacy problem deepens when you examine who was allowed to participate. Entire classes of political actors were excluded. Former Confederate officials and large portions of the Southern political class were disenfranchised, with Congress later restoring rights to roughly 150,000 individuals through the Amnesty Act of 1872.
Whatever one thinks of those individuals, their exclusion meant the amendment was ratified under conditions that do not resemble ordinary republican self-government. The electorate was reshaped before the vote ever took place.
Then came the rescissions.
For the 14th Amendment to be adopted, 28 of 37 states were required. Ohio and New Jersey ratified and then formally rescinded their ratifications before final proclamation. That should have ended the matter. Instead, Congress ignored those rescissions, and Secretary of State William H. Seward included those states in the final certification anyway.
That decision created a constitutional rule that cannot be squared with democratic legitimacy: A state’s “yes” is binding forever, but a state’s later “no” does not count.
The Constitution is silent on rescissions, but it is not silent on sovereignty. If ratification is an act of state consent under Article V, then a constitutional amendment should reflect the consent of the states at the moment of adoption, not merely the existence of enough historical “yes” votes accumulated at different points in time. A system that counts withdrawn consent as valid consent does not reflect the will of the people.
The same principle applies today. Maryland in 2014 rescinded its ratification of the 1860s Corwin Amendment. Illinois rescinded in 2022. If rescissions do not count, then those states are still bound by their original ratifications, which would imply support for a constitutional amendment protecting slavery. That is an absurd result, and it shows the rule itself is flawed.
The Supreme Court never resolved this contradiction. In Luther v. Borden, the court declared Guarantee Clause questions political, leaving them to Congress. In Coleman v. Miller, it suggested that amendment disputes are also largely political. The judiciary stepped aside, and Reconstruction was settled by power rather than constitutional resolution.
That is the key point: The legitimacy of the 14th Amendment was never definitively adjudicated. It was politically cemented.
If an amendment was adopted through military pressure, conditional representation, exclusion of political actors, and the outright disregard of state rescissions, on what basis do we claim it is constitutionally valid?
The honest answer is not constitutional. The amendment was accepted, applied, and built upon. Over time, it became too central to unwind. But constitutional legitimacy is not supposed to rest on inertia.
The same political power that forced the amendment through — and allowed Seward to certify it after states had already withdrawn their ratifications — shows exactly what happened. This was not constitutional ratification. It was a political decision.
SUPREME COURT PROTECTED BIRTHRIGHT CITIZENSHIP. HERE’S WHAT IT DIDN’T DO
Article V requires approval from three-fourths of the states. That standard was not met. States were placed under federal control and told to ratify as a condition of representation. Political participation was restricted. When Ohio and New Jersey reversed their ratifications, those decisions were ignored. An amendment that does not meet Article V is not law.
The 14th Amendment was not lawfully adopted. It does not become valid because it was accepted later or because courts relied on it. It should not be treated as binding simply because it has been in place for a long time.
Michael DeSantis is a conservative strategist.