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Wednesday, December 02, 2020

In Re Griffin and the Fourteenth Amendment

Section Three of the Fourteenth Amendment provided that many officials in the ex-Confederate States were ineligible to serve. Or did it? That was the issue that Chief Justice Chase decided in In Re Griffin. He held that Section Three was not self-executing and that legislation by Congress was required to make the ineligibility operative.

Months after the Fourteenth Amendment was ratified, some criminal defendants in Virginia brought habeas corpus petitions that made the following claim: The state court judge who presided over their trial and sentenced them was ineligible to be a judge because of Section Three. Accordingly, their convictions and sentences must be vacated. The District Court ruled in favor the petitioners and issued the writ.

Chief Justice Chase, the circuit Justice for Virginia, reversed these decisions. He did so based on two arguments. The first was that a "literal reading" of Section Three would cause chaos. If all acts by officials who were ineligible to serve after the Fourteenth Amendment was ratified were null and void, then that would mean that many civil judgments, deeds, and criminal convictions would have to be thrown out. Chase's second point was that Section Three imposed a punishment that was inconsistent with many other constitutional provisions. For example, there was no jury trial and no due process of law. And Section Three functioned as a bill of attainder or an ex post facto law. The Chief Justice conceded that a constitutional amendment could impose these sorts of punishments, but that the text should not be so read if another construction was possible. An alternative reading was possible: Section Three was not self-executing.

There are some interesting themes in Griffin that repeated themselves in subsequent Fourteenth Amendment cases during the 19th century. One was that the text should not be read as revolutionary. Another was that the text should be harmonized with the ideas of the 1787 Constitution. In Slaughter-House, both of these principles were applied to limit the Privileges or Immunities Clause in Section One (in the name of traditional federalism). In Griffin, they were used to limit Section Three (in the name of Article One and parts of the first set of amendments).

There was more going on in Griffin than meets the eye though. Once you compare that case to how Chief Justice Chase handled the treason proceedings against Jefferson Davis and his Section Three claim. More on that tomorrow.

Posted by Gerard Magliocca on December 2, 2020 at 07:14 PM | Permalink


"More on that tomorrow."

Maybe not.

Posted by: Joe | Dec 4, 2020 11:35:52 AM

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