Wednesday, May 2, 2012 – Essay # 53 – Amendment XIV, Section 3 – Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

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Amendment XIV, Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

America has never faced another crisis, like the Civil War.  Art historian Robert Hughes has called it “America’s Iliad,” and that is an apt term, because the War was not only a bloody struggle for the nation’s future; it was also the emblematic crisis of the American soul.  All of the cross-currents and crises of our Constitution can be found to intersect there, or to be prophesied in its still resounding clashes.  This is true not only of such legal controversies as whether a state has the power to secede, or whether the president can suspend the writ of habeas corpus in an emergency, but also of much more personal issues as the sense of betrayal and recrimination that arose from a struggle of brother with brother, of father with son.  Section 3 of the Fourteenth Amendment reflects this personal element of the War.  It bars any person from serving in state or federal office who, having taken an oath to serve as a state or federal officer, had broken that oath to serve the Confederacy.  The Amendment gives Congress power to remove the disability by a two-thirds vote.

This provision was not just aimed at Confederate soldiers, but also at prominent citizens, as well.  Former President, John Tyler had given up his citizenship when the war began and was elected to the Confederate Congress; former Vice President John Breckenridge became a Confederate general, and Justice John Campbell resigned from the U.S. Supreme Court to become Jefferson Davis’ Assistant Secretary of War. Leaders of the victorious union realized that, as with so many military conflicts, a triumph at arms would prove futile in the long run if the enemy’s political leaders were allowed to retain political power, and they saw the removal of the Confederacy’s elite from political power as a necessary step toward reconstructing the nation on the principles of equality and liberty for which the union had fought.

Yet the goal of reconstruction was not merely to exclude the former confederates, but to reintegrate them into American society, and barring people from participating in society would prove counterproductive.  Presidents Abraham Lincoln and Andrew Johnson preferred simply requiring former Confederates to swear that in the future they would support the Constitution. And a year before the Fourteenth Amendment was ratified, the Supreme Court struck down a particularly harsh oath requirement imposed by the state of Missouri, which barred people from certain private occupations if they had participated in the rebellion.  That prohibition, declared the Court in Cummings v. Missouri, amounted to retroactive punishment in violation of the ex post facto clause.  The authors of the Fourteenth Amendment, therefore, held open the opportunity for former confederate leaders to return to the mainstream of political life in the restored union.

Yet section 3 had stranger consequences for reconstruction than its authors could have imagined.  In May, 1865, Confederate President Jefferson Davis was arrested in Georgia and held on charges of treason.  Some Republican leaders insisted he be prosecuted, but moderates were more interested in moving on, and the Johnson Administration sought some way to postpone the prosecution.  As Judge C. Ellen Connally explained in a 2009 Akron Law Review article, Chief Justice Salmon Chase found an opportunity for such delay in section 3 of the Fourteenth Amendment.  Chase, who along with another federal judge, presided over Davis’ treason trial, argued that the case must be dismissed because, like the Missouri law at issue in Cummings, the Amendment’s prohibition on serving in public office was a criminal punishment.  That meant Davis could not also be tried for treason without violating the constitutional ban on “double jeopardy.”  The other judge disagreed, which sent the issue to the full Supreme Court for resolution—but before the Court could decide, President Johnson issued a general amnesty, bringing a permanent end to Davis’ prosecution.

A civil war is a great tear in the fabric of a nation, which can never be wholly mended.  Section 3 of the Fourteenth Amendment is a testament to the profound political and personal wounds that “America’s Iliad” inflicted on the country.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

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