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Tuesday, September 08, 2020

Amnesty Under the Fourteenth Amendment

I've been reading through the debates in Congress during the early 1870s about whether to remove the disability to hold office imposed on many ex-Confederates by Section Three of the Fourteenth Amendment. These debates culminated in an amnesty that extended to most, though not all, of those covered by Section Three. The arguments made in favor of amnesty are quite revealing.

1. Some Republicans argued that amnesty would improve their party's prospects. In other words, there was simply a pragmatic judgment that more whites would vote for Republicans if amnesty were given. Or that more whites would support Reconstruction with amnesty.

2. Some contended that the disabilities were ineffective. They said that officials or representatives in the South would inevitably reflect the electorate's wishes. Thus, no useful purpose was was served by barring some people from only holding office---local policies or politics would remain the same. (This was not a Burkean view of what representatives do, to say the least).

3. Some said that amnesty should be linked to a broad civil rights bill. Amnesty was something that could be traded for more civil rights protection. 

4. Amnesty was already being granted to people, but in a haphazard way through private bills. There was no rhyme or reason to these legislative pardons and hence some more logical or systematic approach was required.

5. Here's the most fascinating argument. Some people said that Section Three of the Fourteenth Amendment was in tension with the spirit of Section One. Barring some citizens from holding office worked a denial of their privileges or immunities or denied them equal protection of the laws. Why are we treating some Americans unequally, they asked? 

The last point highlights the conflict between an anti-classification and an anti-subordination view of the Fourteenth Amendment. One answer to "Why are we treating some Americans unequally" is that they were leading white supremacists. That is a reason for applying the law unequally, but only if you concede that the law can be applied unequally. I'll have more to say about that in another post.   


Posted by Gerard Magliocca on September 8, 2020 at 12:32 PM | Permalink


Also looking forward to that next post and its discussion of the importance that the white supremacist label (as understood by the author) carried back in those days.

Posted by: theRealAnonymous | Sep 10, 2020 11:00:22 PM

Wait a second. White supremacists aren't entitled to equal treatment under the law?

Posted by: thegreatdisappointment | Sep 10, 2020 8:41:19 PM

They did discuss that pardon, though that covered only criminal cases such as the one brought against Jefferson Davis.

Posted by: Gerard | Sep 9, 2020 1:43:31 PM


With regard to point 5 above, did the Congressional debates in the 1870s include any discussion of Andrew Johnson's 1868 Christmas Amnesty? He issued it about 5 months after the 14th Amendment's ratification. Here is the relevant portion of the amnesty's text (the full text is available at the UC Santa Barbara American Presidency Project website):

"Now, therefore, be it known that I, Andrew Johnson President of the United States, by virtue of the power and authority in me vested by the Constitution and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof."

Posted by: Anthony Gaughan | Sep 9, 2020 10:43:08 AM

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