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28 (1872); Magliocca, supra note 33, at 78889. .) as Section One (No state shall . See id. Griffins Case, 11 F. Cas. [81]. See, e.g., Slaughter-House Cases, 83 U.S. (16 Wall.) See Blaine, supra note 3, at 512 (describing the House bill). It is unclear if the North Carolina Legislature selected Vance hoping that Congress would remove his disability or did so as a defiant rejection of the Fourteenth Amendment, though Blaine thought the latter was the truth. .). There are many problems with Chief Justice Chases conclusion, but chief among them was that his position in Griffins Case contradicted his position in the Davis case. Third, the amnesty debate was an early example of the gravitational pull of returning to normal in applying the Fourteenth Amendment on matters of race. 142; Lawtons Case, 18 Op. Fourteenth Amendment Section 3 | Constitution Annotated | Congress.gov There is nothing distinctive about the facts of Griffins Case except that Ceasar Griffin was a Black defendant convicted of a felony (shooting with intent to kill). A through line connects the Section Three relief granted in the 1870s and in the 1970s. [197] Much later came the final twist of history, which was that the final man to receive Section Three relief was the first man who claimed its protectionJefferson Davis. [61]. I vote for it as a safe and sound measure of public policy . The reference in that language to crimes as are now felonies at common law suggests a narrower definition of Section Two of the Fourteenth Amendment that current Supreme Court doctrine, which holds that a state may disenfranchise someone for any felony. See Act of May 22, 1872, ch. See Warren, supra note 6, at 93 . 14, 15 (1867). 36 (1873); Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 141 (2009). Globe, 42d Cong., 2d Sess. . Mark Graber is working on a book about Sections Two, Three, and Four of the Fourteenth Amendment. S.J. 490 (La. This frustration reached its conclusion in the Compromise of 1877, when Union troops were withdrawn from the ex-Confederacy and real federal enforcement of the Fourteenth Amendment on matters of race ended. See, e.g., Priv. [69] In making these claims, Davis took the position that Section Three was self-enforcing in Virginia. [101]. at 95 (argument of Mr. Dana) (stating that [t]he phraseology [of Section Three] is not that of penal or criminal law). at 289899 (1866) (statement of Sen. Johnson). See Cong. [112] Two sections of that statute focused on removing ineligible officials who might be obstructing Black voting. Among those members-elect were many rebel leaders, including Alexander Stephens, the Confederate Vice President, two Confederate Senators, four Confederate Congressmen, and several military officers of the Confederate Army. How could Section Three be self-executing for Jefferson Davis but not self-executing for Black defendants in the same place at the same time? L. Rev. This set the template for all subsequent judicial decisions on the Fourteenth Amendment. See Griffins Case, 11 F. Cas. (It may be said that the former violated an oath, while the latter did not; the latter did not have it in their power to do so. [155]. [121]. I know at the end of the War Between the States there was a sense of forgiveness for those who had been not loyal to our country in the past . [222], Three years later, Jefferson Davis received Section Three relief. [188]. See Lawtons Case, 18 Op. [15] The most important contemporary issue for Section Three, however, was about whether the provision was best read as a new qualification for office or as a punishment, which became an issue in the Jefferson Davis treason case. Cong. Va. 1867); Carlton F. W. Larson, On Treason: A Citizens Guide to the Law 12728 (2020); Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 29499 (2017); C. Ellen Connally, The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis, 42 Akron L. Rev. One important observation about Griffins Case is that the Chief Justice never questioned the validity of the Fourteenth Amendment. Fourteenth Amendment, amendment (1868) to the Constitution of the United States that granted citizenship and equal civil and legal rights to African Americans and slaves who had been emancipated after the American Civil War, including them under the umbrella phrase "all persons born or naturalized in the United States."In all, the amendment comprises five sections, four of which began in . [212] By that point, there were only a few hundred living ex-Confederates who were excluded by the 1872 Act, but further amnesty carried symbolic weight. (forthcoming 2021) (manuscript at 5354), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3749407. 386 (1872) (statement of Sen. Sumner). 41-3, at 72 (1870). [112]. [17]. [165]. All of these state constitutional provisions were subsequently repealed. on Reconstruction, 39th Cong., Report of the Joint Committee on Reconstruction, at x (1st Sess. What is clear is that some ex-Confederates that the Fourteenth Amendment was designed to exclude returned to Congress. Adopted after the Civil War, it bars those who had taken an oath "to support the Constitution of the United States" from holding . [166] But another supported Sumners link between those two issues as a fair deal for the white South: We give you amnesty; you give what you ought never to have withheld, a full communion upon the broad ground of equal rights with your fellow-men.[167] Other Senators were against amnesty and for civil rights, with one stating that [l]et us not say to future generations that these [rebel] men did no wrong . Atty Gen., at 15152. See id. [205] Garland then said that Section Three must be restricted if necessary to prevent an unjust and absurd consequence, which it must be presumed the legislature could not have contemplated.[206] For that point, the Attorney General cited Slaughter-House, where the court refused to adopt the full meaning of certain general words in the first section of the fourteenth amendment in order to avoid an interpretation that would have involved so great a departure from the structure and spirit of our institutions as, in the absence of explicit language, could not be presumed to have been intended.[207] Garland concluded that applying Section Three to someone with a pardon would be productive of an injustice and a disregard of the public faith which nothing short of the most explicit and controlling language should authorize.[208]. [127]. Cong. See Garry Wills, Negro President: Jefferson and the Slave Power 910 (2003); Compare David Brion Davis, The Slave Power Conspiracy and the Paranoid Style (1970) (examining this belief and concluding that no such conspiracy existed), with Leonard L. Richards, The Slave Power: The Free North and Southern Domination, 17801860 (2000) (challenging Daviss conclusions). See, e.g., Cong. See id. 3264 (1872) (statement of Sen. Sumner); see McConnell, supra note 12, at 105558 (describing the procedural background). John Bingham, the lead drafter of Section One of the Fourteenth Amendment, described Section Three to an Ohio crowd during his 1866 reelection campaign and said that the ex-rebel leaders surely have no right to complain if this is all the punishment the American people shall see fit to impose upon them.[47] Senator Lyman Trumbull, though, rejected a penal reading of Section Three: [W]ho ever heard of such a proposition . [103] A third idea from these scholars is that the Chase was concerned that white Southerners would not accept the legitimacy of the Fourteenth Amendment, and so he applied the text to help the ex-Confederate President and not to help freed slaves, as a way of convincing skeptical whites to accept the text.[104]. See Cong. Ratified in the aftermath of the Civil War, Section 3 of the Fourteenth Amendment explicitly disqualifies any person from public office who, having previously taken an oath as a federal or state office holder, engaged in insurrection or rebellion. See Act of Feb. 2, 1872, ch. See United States v. Powell, 27 F. Cas. [176]. See Marjorie Hunter, Citizenship Is Voted For Robert E. Lee, N.Y. Times, July 23, 1975, at 1. And if you do, why strike at the men who, of all others, are most influential and can bring about the end which we all have at heart?[24] The Joint Committees response to this type of claim was: Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war. [161], More important, Sumner explained that there was a logical connection between extending civil rights for Blacks and removing disabilities for whites. 9879 (1975) (statement of Sen. Hart). [44]. art. See supra text accompanying notes 109110. [84] His conclusion was that this view would cause chaos: No sentence, no judgment, no decree, no acknowledgement of a deed, no record of a deed, no sheriffs or commissioners salein short no official actis of the least validity. . [40] But the Constitution says nothing about who can or cannot be a state official. 193, 17 Stat. See A Case Under the Fourteenth Amendment, Richmond Daily Dispatch, June 7, 1871, at 1. In fairness to Congress, the census data on suffrage suffered from reliability issues. who made no secret of their hostility to the government and the people of the United States.[19] The Joint Committee thus recommended the exclusion from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence.[20], The ensuing language of Section Three was introduced in the Senate as a substitute to the Houses proposal. [115]. If there be anything which will put down the disturbances which are said to exist in the southern States it will be the full and perfect restoration to all men of equal rights and privileges.[142] Section Three applied to only white men and did take away a basic right from them, though for obvious cause. [10]. of 1869, art. 947, 104960 (1995). Opinion | Is Trump ineligible to run in 2024? The Supreme Court should After that, the text refers to any office, civil or military, under the United States. One implication of this language is that Senators, Representatives, and electors do not hold an office under the United States. 203 (1870) (statement of Rep. Bingham) (arguing that the Equal Protection Clause was inconsistent in spirit with maintaining Section Three disabilities for most ex-Confederates). 2899 (1866) (statement of Sen Johnson). [206]. [102] Some scholars argue that Chase harbored presidential ambitions and that his actions in the Davis trial are best seen as furthering those goals rather than as applying the law fairly. 203 (1870) (statement of Rep. Bingham). 6 (stating that excluding legislators on the basis of race was illegal, and revolutionary, and is hereby prohibited); id. 1585, 1589 (2012); see also Chernow, supra note 13, at 85657 (explaining that President Grants reputation suffered due in part to corruption charges from pro-southern historians). See Lawtons Case, 18 Op. See Powell v. McCormack, 395 U.S. 486, 520 n.41 (1969) (declining to address the issue); see also U.S. 239 (1871) (statement of Sen Buckingham); see id. Id. [192]. . [158] The Sumner amendment prohibited discrimination on the basis of race by common carriers, innkeepers, theaters, churches, public schools, juries and cemeteries. Globe, 42d Cong., 2d Sess. [130]. [179] But one immediate consequence of amnesty was that suffrage was restored to whites who lived in the four states that disenfranchised men subject to the Section Three exclusion. Full Text of the U.S. Constitution | Constitution Center [201], Nineteen years later, Attorney General Garland issued a Section Three opinion that drastically limited the scope of that provision. See Ulysses S. Grant, Third Annual Message (Dec. 4, 1871), in 9 A Compilation of the Messages and Papers of the Presidents 4096, 4107 (James D. Richardson ed., New York, Bureau of Natl Literature, Inc. 1897); see also 1 National Party Platforms 44 (Donald Bruce Johnson ed., 1978) (quoting the Liberal Republican Platform of 1872, which called for Section Three amnesty). Cong. 14th Amendment Doesn't Bar Trump From Presidency, Alas - Bloomberg The only other application of Section Three was to Representative Victor Berger, a member of the House of Representatives who was excluded from office after criticizing American involvement in World War I. . Id. [48]. See Case of Davis, 7 F. Cas. Ann. [24]. The Guarantee Clause has not been used against a single state official or small group of state officials, though on one occasion Congress gave that issue some consideration. S.C. Const. 153. [101], How, then, can we explain Chief Justice Chases flawed analysis and inconsistency? I am grateful for his research on Section Three, some of which he shared with me. . The President wisely read Northern public opinion with an eye toward the upcoming election, but his position also reflected a shift in attitude about the nature of representation. [126]. Joint Comm. But, on the contrary, does not the experience of the past five years show that just as fast and just in proportion as we have relieved disabilities, just so fast these outrages and murders of loyal citizens have increased?). [224]. See Donald, supra note 12, at 539; McConnell, supra note 12, at 1055; see also 2 Blaine, supra note 3, at 513 ([T]he Democratic leaders were not willing to accept amnesty for their political friends in the South, if at the same time they must take with it the liberation of the colored man from odious personal discriminations.). See First Military Reconstruction Act, ch. [159] [N]ow that it is proposed that we should be generous to those who were engaged in the rebellion, he told the Senate, I insist upon justice to the colored race everywhere throughout this land.[160] In part, Sumner was employing a time-honored tactic of attaching something to a popular bill with the thought that the entire bill would pass. 432 ([T]he disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.). [182]. When the Amnesty Act became law, the President ordered the dismissal of the quo warranto actions brought to enforce Section Three. See id. [123], Meanwhile, the Senate itself enforced Section Three by refusing to seat a member-elect on the ground that he was ineligible. 24344 (1871). [68] He also contended that applying Section Three to him and convicting him of treason would violate the principle of double jeopardy, though he did not say that the Fifth Amendment applied as such to his case. [98] The Chief Justice offered no explanation, and my opinion is that this pair of results is simply illogical and cannot be explained by legal analysis. See Nicoletti, supra note 16, at 18287; Donnally, supra note 16, at 118690. Third, there was an undeniable white perspective to these questions, with scant attention given to Black perspectives on the Civil War. Papers 1111, 1112 (Aug. 5, 1975). (2021). A fair question here is how Congress could remove disabilities before Section Three was ratified, but that can be chalked up as one more anomaly among many with respect to the Fourteenth Amendments proposal and ratification. See Donald, supra note 12, at 539; McConnell, supra note 12, at 1054. Nor did the enforcement provision in Section Five of the Fourteenth Amendment imply that the other sections were not self-executing. One observation is that Congress was expressing a growing pessimism among Northern whites with Reconstruction. Sections 2, 3, and 4 of the 14th Amendment relate to the reintegration of southern states following the Civil War. The case report describes Judge Underwoods actions before reproducing the arguments of the lawyers and Chief Justice Chases opinion. (Let us not, then, attempt to secure tranquility by taking counsel of our enemies, or by making haste to restore them to positions to power.). President Grant took the view that elected representatives were not independent and just registered the views of their constituents: Majorities are sure to elect officers reflecting the views of the majority. As one House member stated: You cannot prevent any idea being represented by keeping out of office any particular man or set of men. See id. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executi. [27]. 23, 94th Cong. [23] Another Senator said that sidelining the old local political establishment would greatly hamper cooperation with the Union: Do you not want to act upon the public opinion of the masses of the South? Third, Section Three vested the authority to grant absolution in Congress rather than in the President. [134] Moreover, the sheer number of personal amnesty requests soon overwhelmed Congress and led to calls for general Section Three amnesty legislation. Nevertheless, there is one reported Section Three criminal case from the federal circuit court in North Carolina,[122] and one newspaper report in Virginia on the dismissal of an ineligible postmaster there. See First Ku Klux Klan Act, 14 ([W]henever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office . [63]. The 14th Amendment was ratified in the wake of the Civil War. . [69]. John Bingham said that there were seventy pending criminal cases across the country as of December 1870 and that he was opposed to granting amnesty to any of those men. The pair also looked at the historical intentions of this section of the 14th Amendment, which barred Confederates after the Civil War from holding office again. See Gerard N. Magliocca, Huey P. Long and the Guarantee Clause, 83 Tul. 7, 21 (C.C.D. 193, 17 Stat. But if, as I believe, the vast majority of the people of those States care little for Jefferson Davis . But Senator Charles Sumner brought the amnesty bill to a halt by proposing a sweeping civil rights amendment that would have barred racial segregation in churches, public schools, and many businesses. In 1868, Judge John Underwood granted writs of habeas corpus to three Black defendants who were tried and sentenced by state judges ineligible to sit because of Section Three. See id. [194]. 1278, 128283 (2011); infra text accompanying notes 141143, 156. State legislators were not included because they presumably did not pose (or seem to pose) the kind of threat to voting rights that executive officials or judges did. . Amdt14.S1.3 Due Process Generally - Constitution Annotated | Congress.gov Thanks to Carlo Andreani, Garrett Epps, Mark Graber, Jill Hasday, Brian Kalt, Kurt Lash, and Myles Lynch for their comments on the draft. See Griffins Case, 11 F. Cas. See, e.g., The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Cruikshank, 92 U.S. 542 (1876). [105]. [140]. This Part parses the text of Section Three and examines its public understanding until the Fourteenth Amendment was ratified. Globe, 42d Cong., 2d Sess. See Blaine, supra note 3, at 531 n.1; id. In Sumners first major speech on the amendment, he stated: Each is the removal of disabilities, and each is to operate largely in the same region of country. ([D]uring the two years [of the Forty-first Congress] thirty-three hundred participators in the rebellionamong them some of the most prominent and influentialwere restored to the full privileges of citizenship . The first thought might be that he simply treated a white defendant (Davis) differently from a Black defendant (Griffin). it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution.[90], The Chief Justice then offered a solution to the practical and legal difficulties he saw in giving Section Three a literal interpretation: Section Three was not self-executing in a federal case. 1165 (2009); Dwight J. Davis, The Legal Travails of Jefferson Davis: A Review and Lessons Learned, 23 J. S. Legal Hist. (stating that otherwise Lawton would have been degraded by the amendment to the condition of disability from which their pardons had raised them). 344 (1869) (stating that the provisions of this resolution shall not apply to persons who by reason of the removal of their disabilities as provided in the fourteenth amendment to the Constitution). [130] The Republican Party platform in 1868 stated: [W]e favor the removal of the disqualifications and restrictions imposed upon the late rebels, in the same measure as the spirit of disloyalty will die out, and as may be consistent with the safety of the loyal people.[131] Until 1872, Congress relied on private bills to remove Section Three disabilities from thousands of individuals. Magliocca, supra note 51, at 164 (explaining that the rift in the Republican Party contributed to John Binghams defeat in his 1872 bid for another term in the House of Representatives). Globe, 39th Cong., 1st Sess. Senator Sumner continued to press his amendment, though, when the Senate reconvened in January 1872. Before the Senate acted, another Black Representative rose to plead for mutual concessions. See Donald, supra note 12, at 54445; McConnell, supra note 12, at 1055. It also applies to Congress's enforcement powers under section 5 of the Amendment. [47]. Blaine, supra note 3, at 513 (stating that no more than 750 men were excluded from the 1872 amnesty, which meant that fewer were alive to take advantage of the 1898 amnesty). at 38299 (Miller, J., dissenting). . 27, 2730 (prohibiting discrimination against Blacks with respect to core common-law rights such as contracts and property ownership). See Ex parte Garland, 71 U.S. (4 Wall.) [202] United States Military officers were excluded from the 1872 amnesty, but Garland ruled that Section Three did not apply to officers who received a presidential pardon. Will, then, the continuance of these disqualifications help to restore order? See State ex rel. Such a theory of the amendment was in direct reversal of the known national sentiment in this regard.[72] The Government added that [p]robably nothing would more surprise the people of the United States more than to learn that, by adopting amendment 14, they had repealed all the penalties against treason, insurrection, or rebellion.[73] Moreover, the United States denied Daviss claim that Section Three was self-enforcing in Virginia. 1866). Jefferson Davis contended in 1868 that Section Three was self-executing and barred his treason prosecution, and Chief Justice Salmon P. Chase agreed with those arguments as a circuit judge presiding over the proceedings in Virginia. In this article, we'll help you understand the ins and outs of this important Constitutional Amendment, including: Answering the question, "What Is the 14th Amendment?" See Cong. [211] Still, the Attorney General was correct in the sense that nobody cared about enforcing Section Three by 1885, and so President Johnsons pardons might as well be treated as controlling. [88] Chase stated that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision [Section Three] which, at once without trial, deprives a whole class of persons of offices held by them.[89] Though the Chief Justice acknowledged that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government . [25]. . art. 1212 (1867) (statement of Rep. Bingham) (retelling the background of the Joint Committee proposal). [67]. [215]. This was part of a broader trend in which the Fourteenth Amendment was cut loose from its moorings and set onto a much different course in the Gilded Age. at 279 (statement of Sen. Kellogg) (The passage of an amnesty bill like the one under consideration will strengthen [Republicans] in the South, if for no other reason [than] because it will take from the Democratic party the strongest argument that they can use against us . But no other constitutional provision was directly referenced and applied by a statute prior to that provisions ratification, which itself makes Section Three special. [143], Robert B. Elliott, one of the first Black men elected to Congress, issued a strong challenge to that premise. 11 F. Cas. Globe, 42d Cong., 1st Sess. at 103 (statement of Rep. Buckley) (Mr. How to use the 14th Amendment's Section Three - The Washington Post 1, 16 Stat. The Court has also construed the Clause to protect substantive due process, holding that there are certain . 14th Amendment, Section 3: Instead of impeachment or 25th Amendment At the same time, though, Griffins Case suggested that the sweeping implications of Section Three might lead to buyers remorse from northern whites. .). [91] The text excluded from certain offices a certain class of persons. The discussion of this amnesty was briefer than what occurred in 1872, but there were echoes of the earlier debate. [63] The Chief Justice concurred with Daviss argument, but just a few months later he held in Griffins Case that Section Three did not apply to a Black criminal defendant in Virginia without enforcement by an Act of Congress. 611, 613 (1869). . [105] The desire to tame new constitutional text reflects a cautious judicial instinct that was reiterated by the Supreme Court in its first Fourteenth Amendment decisionthe Slaughter-House Cases. UNITED STATES CONSTITUTION "No person shall be a Senator or Representative in Congress who, having previously taken an oath as a member of Congress to support the Constitution, shall have [then] engaged in insurrection or rebellion or given aid or comfort to the enemies thereof." 5,815). [213] As the House Judiciary Committee Report supporting the legislation explained: What a glorious spectacle in so short a timethe North and South, once so fiercely divided, reunited. In 1885, Augustus Garland became President Clevelands first Attorney General. [8]. . 36 (1873). Id. at 95 (argument of Mr. Dana) (making a similar point). [108] In both cases, however, there was a concerted effort to limit the Fourteenth Amendment in favor of the principles of the 1787 Constitution, which continued after Slaughter-House.