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Friday, August 14, 2020

Section Three and the Confederacy

One of the ironies of the Fourteenth Amendment is that Jefferson Davis was one of the first people to claim its protection (during the preliminaries of his treason trial). Another irony involves the opinion given by Attorney General Augustus Garland in 1885 that construed Section Three of the Fourteenth Amendment narrowly.

The question presented was whether a former lieutenant in the United States Army who then served in the Confederate Army was covered by Section Three given that he was pardoned by President Johnson in 1867. The Attorney General concluded that Section Three did not apply, in part because the pardon should be construed as a legal erasure of his Confederate service. He cited Ex Parte Garland as part of the authority for that proposition. Who was Garland in Ex Parte Garland? Augustus Garland, now the Attorney General. (Must be fun to cite your own case.)

The Attorney General went on to say that Section Three could not be read to support "an absurd and unjust consequence" and that imposing this legal disability would be absurd and unjust. Garland said that his view was backed by 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.'"

Garland's opinion is especially interesting because he was a member of the Confederate Congress during the Civil War and also received a pardon from President Johnson. (Section Three did not apply to him because he was only a presidential elector before the Civil War, which was not clearly within the categories listed in Section Three.) Then he was elected Governor of Arkansas, Senator from Arkansas, and became the first post-bellum Democratic Attorney General.   

 

Posted by Gerard Magliocca on August 14, 2020 at 02:51 PM | Permalink

Comments

This is interesting stuff -- it's fun to learn about lesser known constitutional provisions and such. You have multiple provisions (including three sections in the 14A alone) that when crafted was thought to be rather important, but they had little staying power. Toss in @2 of the 13A, which did pop up from time to time [including hate crime laws] but not too much.

Posted by: Joe | Aug 15, 2020 8:40:10 PM

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Posted by: Thomas Simmons | Aug 14, 2020 4:20:53 PM

Here by the way, to the Ex Parte Garland:

http://cdn.loc.gov/service/ll/usrep/usrep071/usrep071333/usrep071333.pdf

Posted by: El roam | Aug 14, 2020 4:18:53 PM

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