Copied from pages 596-598 from the of the UTAH LAW REVIEW (1975: 593) on Dyett v. Turner, 439 P.2d 266 (1968)]. The 14th Amendment is fake. NOTE footnotes copied also so all numbers are there.
Justice Ellett, in his concurring opinion, again 19 noted his belief that the fourteenth amendment is itself a nullity, being illegally ratified and adopted/ and is therefore not capable of being the vehicle by which any provisions of the Bill of Rights are made applicable to the states. Furthermore, in Justice Ellett’s view, the fourteenth amendment due process clause require only that the states provide a procedurally fair system, which he felt the state had satisfied in Phillips:
The dissenting opinion asserts that “The Fourteenth Amendment is a part of the Constitution of the United States.” While this same assertion has been made by the United States Supreme Court, that court has never held that the amendment was legally adopted. I cannot believe that any court, in full possession of its faculties, could honestly hold that the amendment was properly approved and adopted.
But even if it be assumed that Congress, by joint resolution, could compel the then Secretary of State to declare that the amendment had been approved by three fourths of the states of the Union, still there is no question in this case of lack of due process of law. The defendants were tried in a court of competent jurisdiction under rules of state law which applied to all alike. They were given notice of the charge against them and had a fair trial wherein they were afforded the rights to counsel, to be confronted by the witnesses, to testify and to give evidence in their own behalf.20
Whatever the historical merit of the conspiracy theory of the fourteenth amendment,21 the time has long since passed that such a theory can be seriously entertained for purposes of declaring invalid22 a cornerstone of a century’s constitutional law, especially by a state court.23 In some circumstances it is proper to thunder from the bench at judicial trends with which one disagrees,24 and this may be done by an inferior court toward an appellate body as well, as long as the forum recognizes that it is still bound by current and unambiguous case law of the appellate court. Arguably, Justice Ellett was within such a parameter of permissible judicial disagreement when in Dyett v. Turner,25 he stated that:
We have spoken in the hope that the Supreme Court of the United States may retreat from some of its recent decisions affecting the rights of a sovereign state to determine for itself what is proper procedure in its own courts as it affects its own citizens. However, we realize that because of that Court’s superior power, we must pay homage to it even though we disagree with it; and so we now discuss the merits of this case just the same as though the sword of Damocles did not hang over our heads.26
19. Justice Ellett thoroughly explained his theory that the fourteenth amendment is a nullity in Dyett v. Turner, 20 Utah 2d 403, 439 P.2d 266 (1968). In Dyett, the Utah Supreme Court rejected a habeas corpus petition and held that the defendant had “knowingly and intelligently” waived the right to assistance of counsel, which was a right protected under the sixth amendment of the United States Constitution. Justice Ellett challenged the validity of the fourteenth amendment on the following grounds: (1) that the congressional resolution proposing the fourteenth amendment was not properly adopted by two-thirds of the full membership of Congress due to certain irregularities in seating southern senators and representatives, and (2) that the fourteenth amendment was not constitutionally ratified by three-fourths of the states, since many of the southern states ratified the fourteenth amendment “under the duress of military occupation,” (Id. at 412, 439 P.2d at 273) and some of those states which had ratified the fourteenth amendment subsequently retracted their ratification.
Dyett was the first in a line of decisions by Justice Ellett asserting that the fourteenth amendment was invalidly adopted and ratified. E.g., Buhler v. Stone, 533 P.2d 292, 295 (Utah 1975)* (Ellett, J., dissenting) (“I do not think the Fourteenth Amendment to the Federal Constitution gives any rights to anybody.”); State v. Richards, 26 Utah 2d 318, 322, 489 P.2d 422, 425 (1971) (Ellett, J., concurring).
20. 540 P.2d at 941-42 (emphasis in original).
21. Justice Ellett cited the following articles in support of his theory: McElwee, The 14th Amendment to the Constitution of the United States and the Threat that it Poses to Our Democratic Government, 11 S. Cab. L.Q. 484 (1959); Suthon, The Dubious Origin of the Fourteenth Amendment, 28 Tul. L. Rev. 22 (1953). But see note 22 infra.
The mixed motivations of the proponents of the fourteenth amendment are analyzed in Graham, The “Conspiracy Theory” of the Fourteenth Amendment, 47 Yale L.J. 371 (1938).
22. In Coleman v. Miller, 307 U.S. 433 (1939), the Court reviewed the action of the Kansas Legislature in ratifying a proposed child labor amendment to the United States Constitution. On the basis of a thorough analysis of the ratification of the fourteenth amendment, including the disputed ratifications and withdrawals of three states as well as Seward’s proclamation of valid adoption of the amendment, the Court held that the issue of state ratification of a constitutional amendment was not justiciable on the following grounds:
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.
Id. at 450. Thus Justice Ellett’s challenge to the validity of the fourteenth amendment in Phillips presumes to rule on the constitutionality of the fourteenth amendment contrary to the United States Supreme Court’s position in Coleman that the separation of powers mandates that the resolution of the valid ratification of a constitutional amendment is a , political question for Congress, and is not a justiciable controversy. See Leser v. Garnett, 258 U.S. 130,137 (1922) (“As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.”).
23. See notes 75-111 infra and accompanying text.
24. E.g., Cypert v. Washington County School Dist., 24 Utah 2d 419, 422, 473 P.2d 887, 890 (1970) (“Notwithstanding our emphatic disagreement with the majority in the Phoenix case, we realize that it is for the present to be recognized as the law . . . .”).
25. 20 Utah 2d 403, 439 P.2d 266 (1968).
26. Id. at 414-15, 439 P.2d at 274. See note 19 supra