Amnesty and Section Three of the Fourteenth Amendment

67 Pages Posted: 29 Dec 2020

See all articles by Gerard N. Magliocca

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: December 14, 2020

Abstract

This Article is the first scholarly account of Section Three of the Fourteenth Amendment, which excluded many ex-Confederates from office unless a supermajority of Congress granted a waiver. Section Three was the first part of the Fourteenth Amendment applied by Congress--even before the Amendment was ratified. Section Three was the first part of the Fourteenth Amendment applied by the courts, with Chief Justice Chase's opinion in "Griffin's Case" setting the tone for future Fourteenth Amendment decisions that narrowed the text's scope. And Section Three was the part of the Amendment that received sustained attention in Congress when a broad amnesty was enacted in 1872 and Senator Charles Sumner tried (unsuccessful) to add a broad civil rights amendment to the amnesty bill.

The story of Section Three is a microcosm of the trajectory of the Fourteenth Amendment as a whole during Reconstruction. Radical aspirations were followed by judicial caution and vigorous enforcement by Congress, only to give way to exhaustion with the implacable anger of southern whites over the protests of the first Black Representatives in Congress. And in a final irony, the first man to claim the protection of Section Three (in 1868) was the last man to benefit from congressional relief under that provision (in 1978)--Jefferson Davis. Section Three is a constitutional failure that deserves closer scrutiny.

Suggested Citation

Magliocca, Gerard N., Amnesty and Section Three of the Fourteenth Amendment (December 14, 2020). Indiana University Robert H. McKinney School of Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3748639 or http://dx.doi.org/10.2139/ssrn.3748639

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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