AMNESTY AND SECTION THREE OF THE FOURTEENTH AMENDMENT.

• Author: Magliocca, Gerard N.

Section Three of the Fourteenth Amendment (1)

Until January 6, 2021, Section Three of the Fourteenth Amendment was one of the vestigial portions of the Constitution. (2) Designed to exclude many former Confederate officials and soldiers from federal or state office, Section Three was quickly neutered by Congress. (3) In 1872, more than the required two-thirds of the Senate and the House of Representatives passed an Amnesty Act removing disabilities from all of the former state officers covered by Section Three. (4) Then in 1898, comparable supermajorities in Congress removed the few remaining disabilities as a gesture of national unity during the Spanish-American War. (5) After that Section Three was almost completely forgotten, except for posthumous disability removals given to Robert E. Lee and Jefferson Davis in the 1970s. (6)

This Article provides the first detailed account of Section Three and argues that the provision's application was a microcosm for the arc of the Fourteenth Amendment during Reconstruction. Section Three began as a broad restructuring of state government that was given effect before the Fourteenth Amendment was even ratified by supplying the standard for disenfranchising ex-Confederates in elections for their state ratifying conventions. (7) Section Three was then the first part of the Fourteenth Amendment construed by the courts. 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. (8) But shortly thereafter, the Chief Justice issued the first opinion on Section Three and held that the text was not self-executing in Virginia and--in the absence of congressional action--did not apply to a Black criminal defendant there. (9) Following these inconsistent rulings, Congress enacted a Section Three enforcement statute and federal prosecutors brought many actions to oust ineligible officials, including half of the Tennessee Supreme Court. (10) The reforming zeal of Reconstruction was at its peak.

By 1871, though, political pressure for sectional reconciliation led President Ulysses S. Grant to ask Congress to remove the Section Three disabilities. (11) Senator Charles Sumner then led an unsuccessful effort to forge a grand bargain under which Section Three relief would be combined with a new civil rights measure that would, among other things, bar racial segregation in public schools. (12) The failure of that compromise, along with Congress's decision to grant a freestanding Section Three amnesty, was a harbinger of Reconstruction's doom and the contraction of the Fourteenth Amendment in the Supreme Court. (13) The amnesty debate also raised deep questions about the meaning of representation, the way in which divided societies should be reunited, and whether the Fourteenth Amendment was mainly concerned with legal neutrality or ending white supremacy. These questions haunt us still.

Part I reviews the text of Section Three and what we know of its original public meaning during the proposal and ratification stages. Part II explores how Section Three was enforced against southern officeholders, with a special focus on Chief Justice Chase's analysis in Griffin's Case--the first major Fourteenth Amendment opinion--as compared to his view of Section Three in Jefferson Davis's treason case. (14) Part III takes a close look at the congressional debate on amnesty from 1871-1872. Part IV concludes by discussing Section Three's gradual and ironic deletion from history.

PART I. PROPOSAL AND RATIFICATION

This Part parses the text of Section Three and examines its public understanding until the Fourteenth Amendment was ratified. From a modern vantage point, the most intriguing facet of Section Three was its implicit endorsement of the view that a small clique of enslavers--the so-called Slave Power--bore primary responsibility for the Civil War and thus should be purged from office. (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. (16) All of these points are illuminated by the unusual fact that Section Three is the only constitutional provision that was enforced prior to its ratification. (17)

1. THE PROBLEM OF ALEXANDER STEPHENS

   When the Thirty-Ninth Congress convened in December 1865, Senators and elected Representatives from the ex-Confederate States showed up ready to take their seats. 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. (18) The presence of these unrepentant rebels infuriated most Republicans in Congress. As the Joint Committee on Reconstruction explained in its report, the elections in the South "resulted, almost universally, in the defeat of candidates who had been true to the Union, and in the election of notorious and unpardoned rebels... 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 House's proposal. (21) Representative James G. Blaine, who later served as the Speaker of the House, recalled in his memoir that when the proposal "was under discussion in Congress, the total number affected was estimated at fourteen thousand, but subsequently it was ascertained to be much greater." (22) In the discussion of the Senate proposal, one objection was that exclusion would make ratification of the Fourteenth Amendment impossible in the South. (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? Do you not want to win them back to loyalty? 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 Committee's 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. The tendency of continuing the domination of such a class, by leaving it in the exclusive possession of political power, would be to encourage the same spirit, and lead to a similar result." (25)

   The Joint Committee's logic for what became Section Three evoked an abolitionist mantra that a "Slave Power" of Southern elites was to blame for the Civil War. Prior to the 1860s, many in the North believed that rich enslavers were conspiring secretly to extinguish liberty. (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. Giving other whites a pass arguably raised the prospects for reconciliation in much the way that the Nuremberg Trials did for Germany after World War II by focusing on Nazi leaders and not on their followers. (27) There was also a plausible thought that the Confederate leaders were not truly representative of their voters and chose to exercise their independent judgment in a destructive manner. (28) A new group of leaders, one could hope, would produce a different racial and political stance.

2. COMPARING SECTION THREE TO THE 1787 CONSTITUTION

   Turning to the text of Section Three, the first notable point involves its list of the federal offices subject to exclusion. Senators, Representatives, and electors for President and Vice President are specified. 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. The other implication is that the Presidency and the Vice-Presidency are each offices under the United States. (29) During the debate on Section Three, one Senator asked why ex-Confederates "may be elected President or Vice President of the United States, and why did you omit to exclude them? 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 Senator's 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. (32)

   Next, Section Three helped define Section Two of the Fourteenth Amendment. 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. (33) An exception to that penalty was "for participation in rebellion, or other crime." "Rebellion" was also used in Section Three and gave more specific guidance on what the same word meant in Section Two. As we will see in a moment, some Southern states relied on Section Three in their post-bellum constitutions to decide who could be disenfranchised consistent with Section Two. (34)

   Third, Section Three vested the authority to grant absolution in Congress rather than in the President. This is consistent with the broader structure of the Fourteenth Amendment...