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Thursday, March 24, 2022

Senator Jacob Howard on Section Three and Amnesty

Section Three of the Fourteenth Amendment was drafted by Senator Jacob Howard. In response to a question about the power of a supermajority of Congress to remove a disqualification, here is what Senator Howard said:

"I understand that the clause gives to Congress full discretionary power to grant an amnesty in an individual case, when applied for, or as a part of the whole. Any portion of persons here proscribed may be pardoned, or rather this disability may be removed as to any portion of them in detail or in gross."

Here the author of Section Three expressly compared Congress's waiver power to a pardon. A pardon could be given to an individual or in general just like a Section Three disability removal. But pardons are not prospective. And neither was the power to remove disabilities. Thus, a prospective reading of the 1872 Amnesty Act raises, at a minimum, serious constitutional doubts that should be avoided by reading the Act more naturally as applying to only ex-Confederates.   

UPDATE: The cite is Cong. Globe, 39th Cong., 1st Sess. 2900 (1866) (statement of Sen. Howard).


Posted by Gerard Magliocca on March 24, 2022 at 09:52 PM | Permalink


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