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Saturday, March 05, 2022

The Correct Reading of the 1872 Amnesty Act

Here is a concise explanation of why the 1872 Amnesty Act cannot be read to give prospective relief from Section Three of the Fourteenth Amendment. 

  1. The Fourteenth Amendment did not give Congress that power. Nothing in the original public meaning or anything afterwards supports a prospective view of Congress's power to waive disqualification. Moreover, such a power would smack of the "dispensing" authority that was rejected in Angl0-American law after the Glorious Revolution of 1688 and be inconsistent with the interpretation of the pardon power.
  2. To conclude otherwise would mean that Congress repealed Section Three of the Fourteenth Amendment in 1872. How can Congress repeal a constitutional provision by itself? This would be an unprecedented loophole in the Article Five process that should be viewed with considerable skepticism.
  3. The constitutional avoidance doctrine strongly suggests that we should not read the 1872 Act as granting prospective relief, to avoid the difficulties posed by Point #1 and Point #2.
  4. The plain meaning of the 1872 Act does not support prospective relief. The title of the Act refers to disabilities "imposed," which is in the past tense. And the Act's use of the term "whomsoever" is not unambiguous. It can "whomsoever is alive," "whomsoever is alive or dead," or "whomsoever is alive, dead or unborn."
  5. Nobody in 1872 thought that prospective relief was granted by Congress.
  6. The House of Representatives excluded Victor Berger on Section Three grounds in 1919. The House did not think that Berger received amnesty in 1872.

The Federal District Court's holding yesterday that the 1872 Amnesty Act bars a Section Three challenge to Congressman Cawthorn will not be upheld by the Fourth Circuit. Of course, the Congressman made other arguments that were not addressed by the District Court and will probably be renewed in any appeal.

Posted by Gerard Magliocca on March 5, 2022 at 03:43 PM | Permalink


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