[112]. 123 Cong. In the end, neither the clenched fist nor the open hand brought justice for all. But this is not a persuasive argument in light of the sweeping arguments by the proponents and opponents of Section Three that did not admit of exceptions for the President or Vice President. [134] Moreover, the sheer number of personal amnesty requests soon overwhelmed Congress and led to calls for general Section Three amnesty legislation. [133]. Griffins Case, 11 F. Cas. at 245 (statement of Sen. Trumbull); see id. [138] Meanwhile, a faction of Liberal Republicans supported amnesty as part of a broader critique of Reconstruction that, in essence, called on President Grant to end his support for the freed slaves and allow ante-bellum elites to regain power in the South. 5,815). Gerard N. Magliocca, an Indiana . 3264 (1872) (statement of Sen. Sumner); see McConnell, supra note 12, at 105558 (describing the procedural background). 140, 143; id. . 433; Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 199207 (2017). 7, 26 (C.C.D. 5,815); Connally, supra note 16, at 119091. at 2324. See generally Peggy Lamson, The Glorious Failure: Black Congressman Robert Brown Elliott and the Reconstruction in South Carolina (1973). . Cong. Members of Congress were excluded because, as we shall see in a moment, each House was fully capable of excluding a member-elect who was ineligible under Section Three. Citizenship, Equal Protection, and Other Rights of Citizens Section III Disqualification from Holding Office: Doctrine and Practice Disqualification Clause Amdt14.S3.1.1 Disqualification Clause Fourteenth Amendment, Section 3: [173]. [56] A decision by Congress to grant Section Three amnesty, hence, would restore voting rights to some ex-Confederates in the South.[57]. Third, there was an undeniable white perspective to these questions, with scant attention given to Black perspectives on the Civil War. 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. . The Presidents reference to criminals is some support for the view that Section Three was a punishment rather than a qualification. See, e.g., Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 Yale L.J. Section Two sets forth a complicated formula that penalizes states for disenfranchising presumptively eligible voters by reducing their representation in the House of Representatives and in the Electoral College in proportion to the disenfranchisement. New Article on Insurrection, Rebellion, and Section Three of the . [51] The First Military Reconstruction Act directed these ten states to draft new constitutions and ordered that nearly all male adult Blacks be allowed to vote in elections for the constitutional conventions. See Cong. 1869) (holding that state judge could not be dismissed as ineligible without a court judgment). . 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. 7, 21 (C.C.D. See Blaine, supra note 3, at 54647. The cases were widely covered by local newspapers. on Reconstruction, supra note 19, at xiii; see also Foner, supra note 15, at 84 (quoting a Republican Congressman who supported Section Three on the grounds that the South needed new officials with some regard for the principles that are contained in the Declaration of Independence). [59] One state readmitted by this Act was Georgia, but in 1869 Georgia was kicked out of Congress for expelling all of its Black legislators and not its white legislators who were ineligible under Section Three. [224]. at xviii; see 2 Blaine, supra note 3, at 190 (It was therefore the general expectation of the people that by some law, either statute or organic, the political privileges of these men, so far as the right to hold office was involved, should be restricted . Amdt14.1Overview of Fourteenth Amendment, . [159]. 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 . [46]. [65]. See MacDonnell, supra note 218, at 12930; cf. [38] Article Two restricts whom state legislatures can name as presidential electors. See A Case Under the Fourteenth Amendment, Richmond Daily Dispatch, June 7, 1871, at 1. [111]. Legal Hist. Section Three of the Fourteenth Amendment responded to that outrage, enacting a sweeping disqualification from state and federal office of those who had, as legislators or officers in the. This principle forbids a construction of the amendment, not clearly required by its terms, which will bring it into conflict or disaccord with the other provisions of the constitution.[86] He then commented that Section Three was the only punitive section in the Fourteenth Amendment, and that in the judgement of some enlightened jurists, its legal effect was to remit all other punishment.[87] Enlightened jurists was code for the Chief Justice himself in the Davis case, as no other judge made such a claim about Section Three. In the wake of that patriotic fervor, legislation was introduced in Congress to remove formally the remaining Section Three disabilities. Globe, 42d Cong., 2d Sess. Globe, 39th Cong., 1st Sess. [210]. [61]. 361, 36167; Act of June 19, 1868, ch. [183]. The same desire to avoid rocking the boat might explain the Chief Justices reading of Section Three in Jefferson Daviss case, where caution counseled against a divisive treason trial. 14th Amendment - Citizenship Rights, Equal Protection, Apportionment 31 Cong. Sumners amendment resulted in a tie vote that was broken by the Vice-President in favor of the civil rights provisions. The amendment was never voted on because Daviss status was still too controversial, and no amnesty was extended at that time. Fourteenth Amendment Equal Protection and Due Process - FindLaw of 1868, art. Griffins Case was probably the first judicial opinion on the Fourteenth Amendment period, as my research discloses no prior published cases. [216] Congresss general amnesty in 1898 ended the debate on the application of Section Three to ex-Confederates until the 1970s. [18] The presence of these unrepentant rebels infuriated most Republicans in Congress. (statement of Rep. Blair) (I would appeal to the Republicans of this House; I would appeal to the colored Representatives here to say why the withholding of this measure today, refusing to remove these disabilities, will remedy the evil of which they speak in the southern States?). Globe, 39th Cong., 1st Sess. [104]. [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. [26] Although there was a paranoid aspect to that view, there was a pragmatic reason to single out the political class once the war was over. [216]. See supra text accompanying notes 109110. For an excellent popular history on Chases background in the antislavery moment, see Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln 10816 (2005). I am uncertain if the online records of Tennessee papers from that period are simply better than for other ex-Confederate States or if Tennessee for some reason was a focal point for Section Three enforcement. 36 (1873). at 879 (statement of Sen. Hendricks) (also making an ex post facto argument). [166]. . In part, this urge may simply reflect an understanding that the text should be read as an anti-classification principle rather than in anti-subordination terms. [151]. Globe, 42d Cong., 2d Sess. [25]. S.C. Const. Id. [137]. [196]. [214]. [182]. Of course, in that context the baseline (as the Black Representatives pointed out) left out significant federal protections for the freed slaves.[193]. . I will hedge a bit though and say only that this was the first major Fourteenth Amendment opinion. I, 3, cl. Second, Virginia at the time was an unreconstructed state (in other words, not yet readmitted to Congress) and so there was no legitimate state government there that could act. [107]. Opinion Column: Two conservative scholars say the case isn't close the Constitution bars Trump from running again According to the draft of a new law review article, Trump is "at the top of the. Section 3 of the 14th Amendment dates back to the Civil War. Ulysses S. Grant, Third Annual Message (Dec. 4, 1871), in 9 Messages, supra note 11, at 4096, 4107. Could Trump be barred under the constitution's 'engaged in insurrection Section Three did not strip anyone of citizenship, though the provision did remove a right of citizenship. It is unclear how many men lost the right to vote in these states or how many of them had their rights restored by the 1872 congressional amnesty. Rec. [174] One possible explanation for that change was that the Liberal Republicans held their convention in May, nominated Horace Greeley, and in their platform demanded the immediate and absolute removal of all disabilities imposed on account of the Rebellion, which was finally subdued seven years ago, believing that universal amnesty will result in complete pacification in all sections of the country.[175] Greeleys political threat to divide Republicans might have spurred the partys members in Congress to do something to take some of the wind out of his sails. [123], Meanwhile, the Senate itself enforced Section Three by refusing to seat a member-elect on the ground that he was ineligible. Finally, the amnesty discussion encapsulated a basic dilemma that followed the American Civil War and that follows any civil war: What is the best way to reunite a divided nation? 1094 (1866) (statement of Rep. Bingham). [144]. Id. After the Amnesty Act of 1872, President Grant called on Congress to remove the disabilities from those who remained excluded from office. See Blaine, supra note 3, at 515 (The colored representatives, who had been slaves, were willing to release their late masters from every form of disability, but the immediate friends of the masters were unwilling to extend the civil rights of the colored man. [37] At the same time, for a legislative pardon Section Three imposed one of the few supermajority requirements in the Constitution. at 2467 (1866) (statement of Rep. Boyer); see id. [202]. [120] Elsewhere in the South, the record on the Administrations enforcement effort is sketchy and merits more research. Bingham estimated that about 20,000 people were still subject to Section Three. [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. Papers 259, 266 (Mar. 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 14th Amendment clarifies issues around U.S. citizenship specifically, who can be a U.S. citizen, additional rights of citizenship, and how citizenship intersects with U.S. law. 153. And Section Three was the part of the Amendment that received sustained attention in Congress when a broad amnesty was enacted in 1872 and Senator Charles Sumner tried (unsuccessful) to add a broad civil rights amendment to the amnesty bill. Section 3: The Senate. THE ANSWER Sign up for the VERIFY Fast Facts daily Newsletter! Cong. 490 (1872) (statement of Sen. Sawyer); id. Res. The Treason Clause defines that crime as levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.[42] Section Three instead uses the phrase given aid or comfort to the enemies thereof. The parallels between the Treason Clause and Section Three shaped the argument that the exclusion from office was a punishment that violated constitutional norms. Though amnesty partly resulted from fatigue in the North with ongoing sectional strife, President Grant and Congress also concluded that Section Three was not helping Reconstruction and could be making matters worse by giving white Southerners an excuse to aid the Ku Klux Klan. A second inescapable thought is that Griffins Case (in combination with Daviss case) heralded a Fourteenth Amendment that would be read more favorably for whites than for Blacks. See Cong. Globe, 42d Cong., 2d Sess. Globe, 42d Cong., 1st Sess. Full Text of the U.S. Constitution | Constitution Center [55]. Judge Underwood is a controversial figure who was viewed by his detractors as corrupt and partisan. See infra text accompanying notes 102104. See id. In this portion of the opinion, the Chief Justice made two speculative claims. Disqualification from Public Office Under the 14th Amendment 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 Eric Foner, The Supreme Court and the History of Reconstructionand Vice-Versa, 112 Colum. 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 . Again, however, this seems fanciful, as there were only a few examples of treason by Americans during that war and none of them were likely to be public officials in the late 1860s. . In other words, Section Three amnesty was a sign of grim things to come.[188]. The Fourteenth Amendment's Due Process Clause guarantees procedural due process, meaning that government actors must follow certain procedures before they may deprive a person of a protected life, liberty, or property interest. [225] President Carter signed that Joint Resolution and explained that Congress officially completes the long process of reconciliation that has reunited our people following the tragic conflict between the States.[226] Our Nation, Carter stated, needs to clear away the guilts and enmities and recriminations of the past, to finally set at rest the divisions that threatened to destroy our Nation and to discredit the great principles on which it was founded.[227] Post-Vietnam divisions were part of the subtext of the Presidents remarks, as he had given broad clemency to that wars draft evaders in 1977.[228]. Now, it is obviously impossible to do this by a simple declaration . at 877 (statement of Sen. Harlan) (I doubt whether rebels who are still opposed to equality of civil rights between themselves and [the] Union men then ought to be relieved from [the] only political disabilities under which they laborthe right to hold office.). 82 (1871) (statement of Rep. Cox) (explaining this point). The Senate first debated whether the amendment was germane before concluding that the answer was yes. at 152. [108]. See Cong. Just to be clear, these arguments were made in late 1868 even though the report lists the date as 1867, which is when the initial indictment was issued against Davis. 607. . When the Legislature refused to comply, the Union Army enforced Congresss mandate by removing the ineligible lawmakers and restoring the Black legislators in what white supremacists called Terrys Purge. See James Ford Rhodes, 6 History of the United States from the Compromise of 1850 to the Final Restoration of Home Rule at the South in 1877, at 28889 (1912). VI, 1. The problem was that an amnesty bill was a special act requiring a two-thirds vote to pass rather than a simple majority. 428, 42830 (1867). They sent against the rebellion a million armed men.[169] Schurz wound up his remarks by repeating the equality argument for Section Three amnesty, arguing that when this is a truly a people of citizens equal in their political rights, it will then be easier to make it also a people of brothers.[170], At the conclusion of this lengthy debate, the Senate deadlocked. [102]. Zebulon Vance was the wartime Governor of North Carolina and was elected by the State Legislature to the Senate in 1871. LII U.S. Constitution Annotated Amendment XIV. [132] According to James G. Blaine, the unwritten rule was that everyone who asked for [amnesty], either through himself or his friends, was freely granted remission of penalty.[133] Using private bills for Section Three exceptions was criticized, though, on the ground there was no principle at work except political favoritism. The number engaged in the late rebellion yet laboring under disabilities is very small, but enough to keep up a constant irritation. [32], Next, Section Three helped define Section Two of the Fourteenth Amendment. Term Limits, Inc. v. Thornton, 514 U.S. 779, 787 n.2 (1995) (same). [180] Whether this changed any electoral results in those four states afterwards is difficult to assess. . The President took further steps to enforce the Fourteenth Amendment during his second term. 36 (1873); see also McDonald v. City of Chicago, 561 U.S. 742, 75657 (2010) (acknowledging the scholarly criticism of Slaughter-House). This Part parses the text of Section Three and examines its public understanding until the Fourteenth Amendment was ratified. . Id. 14th Amendment, Section 3: Instead of impeachment or 25th Amendment .). Targeting public officials may not be enough, as President Grant noted when he said, in advocating amnesty, that in free and fair votes majorities are sure to elect officers reflecting the views of the majority.[232] On the other hand, sweeping Section Three relief did not fulfill the goal of Reconstruction, by inducing reciprocal magnanimity to the freed slaves. 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. (1975) (Robert E. Lee); S.J. . Globe, 39th Cong., 1st Sess. If there is an attempt to apply Section Three to former President Trump for his role in the events of January 6, 2021, the issue of whether Section Three applies to him or to the presidency itself will surely be part of any ensuing litigation. [139] Not surprisingly, some Republicans firmly disagreed with that sentiment and contended that violent white resistance should not be rewarded. 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. at 2899 (statement of Sen. Guthrie) (This third section is not an act of conciliation, it is an act of proscription.). 63, 89 (C.C.D. Globe, 42d Cong., 2d Sess. See First Ku Klux Klan Act, ch. Chief Justices Chase legal advice to the attorneys of a defendant before him in a criminal trial was quite unusual and would not be tolerated now, but ethical standards were not as rigorous during the nineteenth century. See Davis, 7 F. Cas. Adopted after the Civil War, it bars those who had taken an oath "to support the Constitution of the United States" from holding . Article One gives Congress the power to exclude particular members sent as Representatives or Senators by a state. Experts suggest language in section 3 of 14th amendment is 'actually very clearcut' and could. See id. Id. A Representative said that the bill meant all discriminations made necessary in the reconstruction period after the war shall now be removed, and that the equality of all men declared by the Declaration of Independence shall be restored under the flag of the Union.[215] Notably absent from the equality rhetoric was any discussion of civil rights for Blacks. See id. Id. 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. .) as Section One (No state shall . [105]. I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.[30] Another Senator replied that the lack of specific language on the Presidency and Vice-Presidency was irrelevant: Let me call the Senators attention to the words or hold any office, civil or military, under the United States.[31] Practically speaking, Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President. 1. 142; Lawtons Case, 18 Op. XIV, 4. See id. 240 (1871) (statement of Sen. Stewart) (It is impossible for Congress to investigate and pass upon the cases of individuals with any degree of fairness and impartiality.); cf. [172]. 2075 (1977) (statement of Sen. Hatfield). Without jumping into that debate, I would note that the now-discredited Dunning school of Reconstruction history, which was sympathetic to white supremacy, was quick to label anyone who fought hard for Black rights as corrupt. at 27. The Fourteenth Amendment Enforcement Clause - The National Constitution Baude and Paulsen argue that Trump should be excluded from ballots for giving aid to an "insurrection or rebellion" in violation of Section 3 of the 14th Amendment. 338183 (1872). [9]. [219]. .). 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. Jefferson Davis contended that Section Three was self-executing and that the absence of legislation on that subject for Virginia (as of December 1868) did not defeat his treason defense. Act of May 22, 1872, ch. 16, 95th Cong. The discussion of this amnesty was briefer than what occurred in 1872, but there were echoes of the earlier debate. 360 (removing disabilities from Roderick R. Butler of Tennessee); Blaine, supra note 3, at 512.
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