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Thursday, August 13, 2020

More on Section Three of the Fourteenth Amendment

I'm pleased to say that I've found many more interesting items about Section 3 of the Fourteenth Amendment. To wit:

1. Congress started waiving the disability imposed by Section Three before the Fourteenth Amendment was ratified. In June 1868, private acts were passed by the required 2/3 vote exempting various individuals (including a Congressman-elect from Tennessee). How could Congress exercise that power before the Fourteenth Amendment was ratified in July 1868? Good question.

2.  Section Three became a major political issue in 1871 and 1872. Republican critics of President Grant (the so-called "Liberal Republicans") asserted in their party platform that amnesty should be given to all ex-Confederates in the name of sectional reconciliation. This partly explains why Grant asked Congress to grant a partial amnesty in 1871 and Congress then followed through in 1872.

3. Another rationale for amnesty was that it was a carrot to induce some ex-    Confederate leaders to oppose the Ku Klux Klan. President Grant took strong actions against the Klan in 1871 (aided by Congress) including a suspension of habeas corpus in parts of the South. Amnesty was supposed to aid in the Klan's suppression, or at least get more buy-in from white southern elites.

4. Even after the partial amnesty was granted by Congress, some ex-Confederates were still ineligible for office under Section Three. In 1885, the Attorney General gave a remarkable opinion construing Section Three narrowly and cited Slaughter-House (of course) in support of that narrow reading. This opinion deserves a whole separate post.

Posted by Gerard Magliocca on August 13, 2020 at 04:07 PM | Permalink


Thanks. Typo fixed.

Posted by: Gerard | Aug 14, 2020 6:56:42 AM

"Indelible for office" - should read ineligible?

Posted by: Salem | Aug 14, 2020 5:25:42 AM

Just to clarify, the term 'liberal' in liberal Republicans back then meant what we would call libertarian today. They believed in a minimal role for government, especially when it came to interfering with the rights of individuals and firms to enter into contract with another. I don't believe the amnesty was an important matter to them other than to let the country get on with business. A leading voice of liberal Republicanism during Reconstruction was that newly founded magazine, The Nation.

The opposing faction in the party were the Whig Republicans. Following in the footsteps of Clay and Lincoln, they believed in an important role for government in directing the economy. They were certainly conservative and pro-business but argued that the government could and should enact such laws as the eight hour work day and invest in public works to improve transportation.

Posted by: PaulB | Aug 13, 2020 7:15:38 PM

By the way, to the proclamation of Grant:


Posted by: El roam | Aug 13, 2020 6:10:07 PM

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