No.

23-719

In the Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, ET AL.,
Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

BRIEF OF AMICI CURIAE AMERICAN

HISTORIANS IN SUPPORT OF RESPONDENTS

JONATHAN B. MILLER
Counsel of Record
JOSHUA A. ROSENTHAL
MICHAEL ADAME
EUSHRAH HOSSAIN
PUBLIC RIGHTS PROJECT
490 43rd Street, Unit #115
Oakland, CA 94609
(510) 738-6788
[email protected]

January 29, 2024 Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

 i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
STATEMENT OF INTEREST ....................................1
INTRODUCTION AND SUMMARY OF
ARGUMENT ................................................................2
ARGUMENT ................................................................4
I. THE ORIGINS OF SECTION THREE ...........4
A. From the Start of the Civil War, the
Federal Government Took Steps to
Ensure Loyalty and Disqualify
Insurrectionists in its Midst........................4
B. At the End of the War, Disqualification
Became a Pressing Concern as
Insurrectionists Were Elected to
Congress .......................................................9
II. THE DRAFTING AND RATIFICATION
OF SECTION THREE ....................................15
A. A Congressional Inquiry Discovered
Widespread Rebelliousness in the
South ..........................................................15
B. The Development of Section Three
Demonstrates Congress’s Intent to
Make Disqualification Targeted and
Permanent ..................................................20
C. Southern States Resisted Ratification,
in part, Because of the Disqualification
of ex-Confederates .....................................24
III. THE PERSISTENCE OF SECTION
THREE ............................................................26
 ii

A. The Jefferson Davis Case Showed That

Section Three Required No Criminal
Conviction and Was Self-Executing..........27
B. Requests for Amnesty Underscore the
Broad and Immediate Impact of Section
Three ..........................................................30
CONCLUSION ...........................................................33
 iii

TABLE OF AUTHORITIES
CASES
In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869) ......29, 30
CONSTITUTIONS AND STATUTES
U.S. Const. amend.
XIV, § 3 .......................... 2-4, 15, 18-22, 24-30, 32-34
N.Y. Const. of 1777, art. XXXIII ...............................20
Act of Feb. 16, 1787, ch. VI, 1787 Mass. Acts 555 ....20
Act of July 2, 1862, ch. 128, 12 Stat. 502. ...................7
Act of May 22, 1872, ch. 193, 17 Stat. 142................32
Act of June 6, 1898, ch. 389, 30 Stat. 432 .................33
Act To Remove the political disabilities of Colonel
John Taylor Wood, Febr. 11, 1897, 54th Congr.,
ch. 17, 29 Stat. 801 ................................................33
Second Confiscation Act, ch. 195, Sec. 1, 12 Stat.
589 (July 17, 1862). .................................................7
OTHER AUTHORITIES
HERMAN V. AMES, PROPOSED AMENDMENTS TO THE
CONSTITUTION OF THE UNITED STATES DURING
THE FIRST CENTURY OF ITS HISTORY (US Gov.
Printing Office, 1897) ............................................21
Belleville Advocate, May 7, 1880 ..............................33
Bill, 39th Cong., Feb. 16, 1866 ..................................20
Bill, 39th Cong., Feb. 19, 1866 ..................................20
Bill, 39th Cong., Mar. 8, 1866 ...................................20
Bill, 39th Cong., Mar. 19, 1866 .................................20
 iv

Blackhawk, M., Carpenter, D., Resch, T. and

Schneer, B., Congressional Representation by
Petition: Assessing the Voices of the Voteless in
a Comprehensive New Database, 1789–1949,
Legislative Studies Quarterly (2021),
https://doi.org/10.1111/lsq.12305 ..........................13
WILLIAM A. BLAIR, WITH MALICE TOWARD
SOME: TREASON AND LOYALTY IN THE CIVIL
WAR ERA (2014)................................................10, 14
DAVID W. BLIGHT, RACE AND REUNION: THE CIVIL
WAR IN AMERICAN MEMORY (2001) ........................29
Buffalo Morning Express, Apr. 28, 1882 ..................33
Burlington Weekly Hawkeye, Jan. 20, 1876 ............32
Charleston Mercury, Nov. 8, 1860 ..............................4
Chicago Tribune, Jan. 12, 1876 .................................32
Cong. Globe, 36th Cong., 2d Sess. (1860) ...................5
Cong. Globe, 37th Cong., 2d Sess. (1862) ...................7
Cong. Globe, 38th Cong. 1st Sess. (1864) .................14
Cong. Globe, 39th Cong.,
1st Sess. (1866).............................. 3, 18-24, 28, 34
Cong. Globe, 42nd Cong., 2d Sess. (1872) .................31
44 Cong. Rec. 325 (1876) ...........................................32
Jefferson Davis, 3 Jefferson Davis,
Constitutionalist: His Letters, Papers, and
Speeches (1923) ......................................................29
Jefferson Davis, First Inaugural Address (Feb.
18, 1861) ...................................................................5
 v

Frederick Douglass, The Progress of the War, IV

Douglass’s Monthly, Sept. 1861 ..............................7
DREW GILPIN FAUST, THIS REPUBLIC OF
SUFFERING: DEATH AND THE AMERICAN CIVIL
WAR (2008) .............................................................10
ERIC FONER, RECONSTRUCTION: AMERICA’S
UNFINISHED REVOLUTION, 1863-1877 (1988) ..15, 26
ERIC FONER, THE SECOND FOUNDING: HOW THE
CIVIL WAR AND RECONSTRUCTION REMADE THE
CONSTITUTION (2019) .............................................18
Gallipolis Journal, Feb. 21, 1867 ..............................25
Ulysses S. Grant, Third Annual Message to
Congress, Dec. 4, 1871 ...........................................31
H.R. Journal, Jan. 5, 1869 .........................................30
H.R. Journal, Feb. 9, 1869 .........................................30
HAROLD MELVIN HYMAN, ERA OF THE OATH:
NORTHERN LOYALTY TESTS DURING THE CIVIL
WAR AND RECONSTRUCTION (1954) ............5, 7, 9, 10
ROBERT ICHENHAUER-RAMIREZ, TREASON ON
TRIAL: THE U.S. V. JEFFERSON DAVIS (2019) ...........9
Joseph B. James, Southern Reaction to the
Proposal of the Fourteenth Amendment, 22 J.
of Southern History 477 (1956) .............................25
BENJAMIN B. KENDRICK, ED., THE JOURNAL OF THE
JOINT COMMITTEE OF FIFTEEN ON
RECONSTRUCTION, 39TH CONGRESS, 1865-1867
(1914) ......................................................................15
 vi

Jill Lepore, What Happened When the U.S. Failed

to Prosecute an Insurrectionist Ex-President,
The New Yorker, Dec. 4, 2023...............................28
Francis Lieber, Lieber to Sumner, November 8,
1865, Charles Sumner Papers, Houghton
Library, Harvard University and available at
https://dpul.princeton.edu/microfilm/catalog/dc
6m312077g .............................................................12
Abraham Lincoln, First Inaugural Address (Mar.
4, 1861) .....................................................................3
GERARD N. MAGLIOCCA, AMERICAN FOUNDING
SON: JOHN BINGHAM AND THE INVENTION OF
THE FOURTEENTH AMENDMENT (2013) ..................18

Gerard N. Magliocca, Amnesty and Section Three

of the Fourteenth Amendment, 36 Const.
Commentary 87 (2021). ...................................30, 31
Gerald N. Magliocca, Shooting Fish in a Barrel:
The Presidency and Section 3, Balkinization
(Jan. 2, 2024),
https://balkin.blogspot.com/#767468603544
1372191 ............................................................25, 32
JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM:
THE CIVIL WAR ERA (1989) ......................................2
Milwaukee Sentinel, July 26, 1865 ...........................12
1 Frank Moore, Speech of A. H. Stephens in
Rebellion Record: A Diary of American Events,
with Documents, Narratives, Illustrative
Incidents, Poetry, etc. (New York: 1861) ................5
WILLIAM NELSON, THE FOURTEENTH AMENDMENT
(1988) ......................................................2, 11, 17, 24
 vii

N.Y. Herald, Nov. 23, 1867 ........................................28

N.Y. Times, Feb. 14, 1861............................................5
CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE
TREASON PROSECUTION OF JEFFERSON DAVIS
(2017) ............................................................9, 28, 29
Petition, 39th Cong. Feb. 13, 1866 ............................13
Petition, 39th Cong. Feb. 14, 1866 ............................13
Petition, 39th Cong., Feb. 19, 1866 ...........................13
Petition, 39th Cong., Feb. 20, 1866 ...........................13
Petition, 39th Cong., Mar. 5, 1866 ............................13
Petition, 39th Cong., Mar. 9, 1866 ............................14
Petition, 39th Cong., Mar. 16, 1866 ..........................13
Petition, 39th Cong., Mar. 19, 1866 ..........................13
Petition, 39th Cong., Mar. 23, 1866 ..........................14
Petition, 39th Cong., Apr. 4, 1866 .............................13
Petition, 39th Cong., Apr. 5, 1866 .............................13
Philadelphia Inquirer, Apr. 2, 1868 ............................9
Public Ledger, Oct. 3, 1871........................................30
Report of the Joint Committee on Reconstruction
(1866) ..........................................3, 11, 12, 16, 17, 23
Richmond Dispatch, Nov. 26, 1867 ...........................28
S. Exec. Doc., 39th Cong., 1st Sess., No. 2, p. 13
(1866) (report by Gen. Carl Schurz) .....................11
S. Journal, 36th Cong., 2d Sess. 63 (1860) .................5
Sioux City Daily Journal, Mar. 5, 1879 ....................33
 viii

MANISHA SINHA, THE RISE AND FALL OF THE

SECOND AMERICAN REPUBLIC, 1860-1920 (2024) ..18
Charles Sumner, Oath for Senators in Works,
Jan. 25, 1864 ............................................................8
The Amendments Project, edited by Jill Lepore
and Tobias Resch, 2023,
https://amendmentsproject.org .............................13
JOHN FABIAN WITT, LINCOLN’S CODE: THE LAWS
OF WAR IN AMERICAN HISTORY (2012) .............25, 27
 1

STATEMENT OF INTEREST
Amici curiae are distinguished scholars whose
expertise includes the histories of federal
constitutional amendment, the laws of war, and the
Civil War and Reconstruction.1 All amici are elected
members of the American Academy of Arts and
Sciences and winners of either the Pulitzer or the
Bancroft Prize or both.
Jill Lepore is the David Woods Kemper ’41
Professor of History at Harvard University and
director of the Amendments Project, a digital
historical archive. Her fourteen books include the
internationally acclaimed These Truths: A History of
the United States (2018).
David Blight is the Sterling Professor of History
and African American Studies at Yale University, the
author of Race and Reunion: The Civil War in
American Memory (2011) and winner of the Pulitzer
Prize for Frederick Douglass: Prophet of Freedom
(2018).
Drew Gilpin Faust is President Emerita of
Harvard University and the Arthur Kingsley Porter
University Professor. Her books include This
Republic of Suffering: Death and the American Civil
War (2008), a finalist for the National Book Award.

1 No party or counsel for a party authored the brief in whole or

in part. No person, other than amici or their counsel, made a
monetary contribution intended to fund the preparation or
submission of the brief. University affiliation of amici is
provided for identification purposes only.
 2

John Fabian Witt is the Allen H. Duffy Class of

1960 Professor of Law at Yale Law School and the
author of Lincoln’s Code: The Laws of War in
American History (2012).
Amici’s interest in this appeal arises from the
gravity of the case before the Court and the necessity
of grounding any decision in a proper historical
understanding of Section Three of the Fourteenth
Amendment. As eminent American historians with
expertise in the relevant era, actors, and events,
amici are well qualified to assist the Court by
establishing the original intent, meaning, and public
understanding of the Disqualification Clause.
INTRODUCTION AND
SUMMARY OF ARGUMENT
In the aftermath of the Civil War, Congress
devised the Disqualification Clause of the Fourteenth
Amendment out of concern that office-holders who
had violated their oaths to the Constitution would re-
assume positions of authority, destabilize state and
federal governments, and suppress freedom of
speech. The Republican framers of the Amendment
believed that anything short of the disqualification of
insurrectionists risked surrendering the government
to anti-Constitutionalist rebels.2 In a speech in 1866,
Benjamin Butler, soon afterward elected to Congress,
declared that secessionists had left their offices “for

2 See JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE

CIVIL WAR ERA (1989).
 3

the purpose of destroying this government” and “now

desire to return to their seats for the same purpose.”3
“Plainly, the central idea of secession is the
essence of anarchy,” Lincoln had said in his First
Inaugural Address.4 Five years and seven hundred
thousand war deaths later, the framers of the
Fourteenth Amendment hoped not only to prevent a
resurgence of secessionism but also to protect future
generations against insurrectionism. An early draft
of Section Three limiting its reach to those who had
participated in “the late insurrection” was eliminated
in favor of language that disqualified both past and
future insurrectionists who had taken an oath to
uphold the Constitution. “This is to go into our
Constitution and to stand to govern future
insurrection as well as the present,” said one senator
during floor debate.5
Without a disqualification clause that would
endure, a Congressional committee warned, “flagrant
rebellion, carried to the extreme of civil war,” would
become “a pastime.” Future insurrections could be
defeated by force of arms but “the battle may be still
fought out in the legislative halls of the country.”6
Insurrectionists could take over state legislatures,
state houses, Congress, the cabinet, and even the

3 WILLIAM NELSON, THE FOURTEENTH AMENDMENT, at 41–42

(1988) (quoting Benjamin Butler, Aug. 1866).
4 Abraham Lincoln, First Inaugural Address (Mar. 4, 1861).
5Cong. Globe, 39th Cong., 1st Sess., 2900 (1866) (remarks of
Sen. Van Winkle).
6 Report of the Joint Committee on Reconstruction, at xi (1866).
 4

White House. Section Three was meant to prevent

that possibility. Its framers intended Section Three:
(1) to automatically disqualify insurrectionists; (2) to
apply not only to the Civil War but also to future
insurrections; and (3) to bar anyone who has
betrayed an oath to uphold the Constitution from
becoming President of the United States. It remains
in place and in force today.
ARGUMENT
I. THE ORIGINS OF SECTION THREE
During the Civil War, concern about Confederate
sympathizers in government posts led Congress to
conduct investigations, employ oaths and loyalty
tests, and remove individuals from office. At the end
of the war, as ex-Confederate leaders attempted to
assume positions in state and federal governments,
Congress considered whether and how to bar them
from office.
A. From the Start of the Civil War, the
Federal Government Took Steps to
Ensure Loyalty and Disqualify
Insurrectionists in its Midst
When Abraham Lincoln was elected on November
6, 1860, many Democrats in the South refused to
accept the outcome. “The election of Lincoln is the
dissolution of the Union,” a Charleston, South
Carolina, newspaper announced, urging citizens, “the
sooner we arm and organize the better.”7 On
November 13, the South Carolina legislature called
for a convention to consider secession. Constitutional

7 Charleston Mercury, Nov. 8, 1860.

 5

amendments designed to appease secessionists

illustrate their demands. Mississippi senator
Jefferson Davis introduced an amendment that
would have established owning human beings as a
constitutional right, guaranteed the extension of
slavery to the territories, and reinforced the Fugitive
Slave Clause.8 Tennessee Congressman Andrew
Johnson proposed that half the justices on the
Supreme Court should be from slave states, and half
from free states.9 Georgia secessionists demanded a
constitutional amendment reading, “No person of
African descent shall be permitted to vote for Federal
Officers, nor to hold any office or appointment under
the government of the United States.”10
In February of 1861, delegates from seceding
states convened in Montgomery, Alabama, formed
the Confederate States of America, and elected
Jefferson Davis president. They drafted a
constitution that, as the Confederacy’s vice president
Alexander H. Stephens proclaimed, established that
“subordination to the superior race” is the “natural
and moral condition” of Africans and their
descendants.11 In Washington, on the day slated for
the Electoral College certificates to be counted at the

8 S. Journal, 36th Cong., 2d Sess. 63 (1860).

9 Cong. Globe, 36th Cong., 2d Sess. 82–83 (1860).
10 Journal of the Public and Secret Proceedings of the
Convention of the People of Georgia (Milledgeville, GA), Jan. 16,
1861, at 18.
11 1 Frank Moore, Speech of A. H. Stephens in Rebellion Record:
A Diary of American Events, with Documents, Narratives,
Illustrative Incidents, Poetry, etc., 45–46 (New York: 1861).
 6

Capitol, a pro-southern mob assembled and there

were fears of what the New York Times described as
“plots to take the city, blow up the public buildings,
and prevent the inauguration of Lincoln.”12 Days
later, Davis delivered his inaugural address in
Montgomery, declaring that the Confederate
Constitution differed “only from that of our fathers in
so far as it is explanatory of their well-known intent,”
which he claimed was to sanction slavery.13
The outbreak of war in April 1861 raised the
question of the loyalty of office-holders. Within weeks
of Confederate forces firing on Fort Sumter, Lincoln’s
attorney general proposed that “all the employees of
the Department—from the head Secretary to the
lowest messenger, be required to take, anew, the oath
of allegiance.”14 Northerners undertook to purge
Confederate sympathizers from positions of authority
both inside and outside of government and, in mass
meetings, called upon Congress to do the same.
Newspaper reporters were required to take loyalty
oaths; so were telegraph operators. In July, Congress
established a committee, headed by Wisconsin
Republican John F. Potter, to investigate disloyalty
within the federal government. In August, Lincoln
signed a bill establishing a new loyalty oath for all
civil servants.15 Yet Frederick Douglass charged that

12 N.Y. Times, Feb. 14, 1861.

13 Jefferson Davis, First Inaugural Address (Feb. 18, 1861).
14 HAROLD MELVIN HYMAN, ERA OF THE OATH: NORTHERN
LOYALTY TESTS DURING THE CIVIL WAR AND RECONSTRUCTION,
at 1 (1954).
15 Id. at xii–xiv, 1, 2, 13, 18.
 7

many Confederate sympathizers remained within the

federal government “where they could be of the
utmost service to the rebels.”16 The Potter Committee
investigated some 500 federal government
employees; many were forced to leave their
positions.17
After the Committee published its report in
January 1862, Congress ruled that “no pension shall
be paid … to any person who has engaged in the
present rebellion … or who has in any way given aid
and comfort to those engaged in the rebellion.”18 In
July, Congress passed an act requiring the swearing
of a new oath by “every person elected or appointed
to any office of honor or profit under the Government
of the United States, either in the civil, military or
naval department of the public service, excepting the
President of the United States.” Known as the
Ironclad Oath, it read, in part:
I, A B, do solemnly swear (or affirm)
that I have never voluntarily borne
arms against the United States since I
have been a citizen thereof; that I have
voluntarily given no aid, countenance,
counsel, or encouragement to persons
engaged in armed hostility thereto.19

Frederick Douglass, The Progress of the War, IV Douglass’s

16

Monthly, Sept. 1861, at 513.

17 See Hyman, supra n.14, at 7.
18 Cong. Globe, 37th Cong., 2d Sess., Appx., 334 (1862).
19 Act of July 2, 1862, ch. 128, 12 Stat. 502.
 8

Two weeks later, Lincoln signed the Second

Confiscation Act. “[E]very person who shall hereafter
commit the crime of treason against the United
States,” the statute provided, “shall suffer death.”20 A
second offense outlined in the Act punished persons
who “shall hereafter incite, set on foot, assist, or
engage in any rebellion or insurrection against the
authority of the United States, or the laws thereof, or
shall give aid or comfort thereto, or shall engage in,
or give aid and comfort to, any such existing rebellion
or insurrection.”21 Finally, the Act provided that
“every person found guilty of either of the offenses
described in this act shall forever be incapable and
disqualified to hold any office under the United
States.”22 This language (“incite… assist or engage…
give aid or comfort”) and these measures established
both the meaning and consequences of insurrection.
Questions of loyalty and qualification for office
intensified as the war neared its end and Congress
considered how to reconstruct the Union. In 1864,
Congress passed the Wade-Davis Bill, which would
have required a majority of all white men in any
state in the former Confederacy to take the Ironclad
Oath before readmission to the Union; Lincoln
pocket-vetoed the bill. Republicans in Washington
remained concerned about ex-Confederates returning
to office. “It is our duty to guard the loyalty of this
chamber,” insisted Massachusetts senator Charles

20Second Confiscation Act, ch. 195, Sec. 1, 12 Stat. 589 (July 17,
1862).
21 Id. at Sec. 2.
22 Id. at Sec. 3.
 9

Sumner.23 “We can manage the traitors in our front,”

a Union veteran wrote to Illinois senator Lyman
Trumbull, “if you will keep them out of the
Legislative Halls of our Government.”24
B. At the End of the War, Disqualification
Became a Pressing Concern as
Insurrectionists Were Elected to
Congress
After Appomattox, Congress determined to use its
power to bring order from chaos. This meant, by
design and necessity, the creation of civil and
political rights for the freed people, the
disqualification of former rebels, and the prevention
of future insurrections.
Robert E. Lee surrendered to Ulysses S. Grant on
April 9, 1865; days later, Lincoln was assassinated.
Union troops captured Jefferson Davis in Georgia in
May; he was charged with treason. If Davis could not
be convicted of treason, the Philadelphia Inquirer
remarked, “we may as well ... expunge the word at
once from our dictionaries.”25 But Davis’s trial was
repeatedly delayed, partly out of fear that Davis
would use a trial to argue the constitutionality of
secession. With his case unresolved, other treason
prosecutions were put on hold.26 After so terrible a

23 Charles Sumner, Oath for Senators in Works, Jan. 25, 1864 at

8: 53–57.
24See Hyman, supra n.14, at 84 (quoting a letter written by W.
F. Munroe to Lyman Trumbull, dated June 18, 1864).
25 Philadelphia Inquirer, Apr. 2, 1868.
26CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE TREASON
PROSECUTION OF JEFFERSON DAVIS (2017); ROBERT
 10

war, few Americans had an appetite for mass trials

and executions. “I would deprive them of power but
not of life,” wrote abolitionist Lydia Maria Child to a
Republican congressman from Indiana.27 Many also
lost their nerve for prosecuting Davis.
While the nation grieved its staggering wartime
losses, President Johnson, driven by his bedrock
beliefs in states’ rights and white supremacy, sought
the swift readmission of the former Confederacy and
pursued a policy of leniency and pardon.28 He hoped
to convince Congress to abandon the Ironclad Oath,
which made making federal appointments in the
South nearly impossible. An agent wrote to the
President from Wilmington, about men seeking
positions, that “like nearly everybody in North
Carolina, from 17 to 55 years of age, they may have
in some form or other been mixed up with the
rebellion.”29
The more generous Johnson’s pardons, and the
clearer it became that prominent ex-Confederates
were not likely to be prosecuted for treason, the more
concerned became Congress about their possible

ICHENHAUER-RAMIREZ, TREASON ON TRIAL: THE U.S. V.

JEFFERSON DAVIS (2019).
27 WILLIAM A. BLAIR, WITH MALICE TOWARD SOME: TREASON AND
LOYALTY IN THE CIVIL WAR ERA, at 268 (2014) (quoting a letter
from Lydia Maria Child to George W. Julian dated Apr. 8,
1865).
28On the scale and impact of the losses, see DREW GILPIN FAUST,
THIS REPUBLIC OF SUFFERING: DEATH AND THE AMERICAN CIVIL
WAR (2008).
29 See Hyman, supra n.14, at 55.
 11

return to power. In 1865 and early 1866, reports

reached Washington that secession was “rampant
again” in the South and that white Southerners were
“more out & out rebels than they were in 1861.”30 Ex-
Confederates founded the Ku Klux Klan in December
1865. “Treason does, under existing circumstances,
not appear odious in the south,” former Union major
general Carl Schurz reported, and “there is as yet
among the southern people an utter absence of
national feeling.”31 Reports circulated widely about
the suppression of freedom of speech. “Northern men
have been subjected to the Gun knife the pistol the
rope & tar & feathers for opinion sake all over the
South,” one correspondent informed Ohio senator
John Sherman.32 Southern states began passing
Black Codes, restricting the rights of freed people.
Equally common were reports of white Southerners’
violent campaign to reduce newly freed Black
Americans, as one Union commander testified, “to a
condition which will give the former masters all the
benefits of slavery.”33
Disqualification grew in urgency when, in
elections held in the fall of 1865, two former

30See Nelson, supra n.3, at 41 (quoting a letter from William

Mithoff to John Sherman, dated Dec. 17, 1865 and a letter from
John Kirkwood to Salmon P. Chase, dated Dec. 4, 1865).
31S. Exec. Doc., 39th Cong., 1st Sess., No. 2, p. 13 (1866) (report
by Gen. Carl Schurz) (emphasis in original).
32 See Nelson, supra n.3, at 42 (quoting a letter from M. Stone to

John Sherman dated Dec. 27, 1865).

33 Report of the Joint Committee on Reconstruction at 142
(testimony of General Alfred H. Terry).
 12

Confederate senators and four former Confederate

congressmen were elected to the Thirty-Ninth
Congress. “The members from the Southern States
who will come to Washington asking for seats in
Congress next winter, will be in sympathy with all
there is left of treason at the South,” a Milwaukee
newspaper reported.34 In November, Columbia
constitutional law professor Francis Lieber, who had
written the laws of war for the Union Army and had
also proposed a series of constitutional amendments,
wrote to Sumner to sound an alarm by asking
whether, in the event that Jefferson Davis were not
convicted of treason, “is he not, in that case,
completely restored to his citizenship, and will he not
sit by your side again in the Senate? And be the
Democratic candidate for the next presidency? I do
not joke.”35 In January, these fears were all but
realized when the Democrat Alexander H. Stephens,
the former vice president of the Confederacy, was
elected to the U.S. Senate. The clerk of Congress
refused to call the names of the ex-Confederates at
roll and they were never seated. The Joint
Committee on Reconstruction resolved to devise a
means beyond the Ironclad Oath to bar “from
positions of public trust of, at least, a portion of those
whose crimes have proved them to be enemies to the
Union, and unworthy of public confidence.”36

34 Milwaukee Sentinel, July 26, 1865.

35Francis Lieber, Lieber to Sumner, November 8, 1865, Charles
Sumner Papers, Houghton Library, Harvard University and
available at https://dpul.princeton.edu/microfilm/catalog/
dc6m312077g (frames 29–30).
36 Report of the Joint Committee on Reconstruction, at xviii.
 13

The public, too, clamored for a means to disqualify

ex-insurrectionists. Groups of citizens from all over
the country presented petitions to Congress urging
security “against a renewed attempt to secede,” many
signed by hundreds of people, including from
Illinois,37 Indiana,38 Maine,39 Massachusetts,40 New
Jersey,41 New York,42 Ohio,43 and Wisconsin.44 One

37 Petition, 39th Cong. Feb. 13, 1866; The Amendments Project,

edited by Jill Lepore and Tobias Resch, 2023,
https://amendmentsproject.org, Record No. p_s58-p42_00017
(last accessed Jan. 28, 2024). Record Source: Blackhawk, M.,
Carpenter, D., Resch, T. and Schneer, B., Congressional
Representation by Petition: Assessing the Voices of the Voteless
in a Comprehensive New Database, 1789–1949, Legislative
Studies Quarterly, 46: 817–49 (2021), https://doi.org/10.1111/
lsq.12305]. Unless otherwise indicated, all petitions cited are
from this dataset.
38 Petition, 39th Cong. Feb. 14, 1866, Record No. p_s58-
p43_00003.
39 Petition, 39th Cong., Feb. 19, 1866, Record No. p_s58-
p46_00019; Petition, 39th Cong., Apr. 5, 1866, Record No.
p_s58-p77_00003.
40 Petition, 39th Cong., Feb. 20, 1866, Record No. p_s58-

p47_00024; Petition, 39th Cong., Mar. 5, 1866, Record No.

p_s58-p55_00019.
41 Petition, 39th Cong., Mar. 5, 1866, Record No. p_s58-
p55_00011.
42 Petition, 39th Cong., Feb. 13, 1866, Record No. p_s58-

p42_00024; Petition, 39th Cong., Mar. 19, 1866, Record No.

p_s58-p65_00000.
43 Petition, 39th Cong., Apr. 4, 1866, Record No. p_s58-
p76_00020; Petition, 39th Cong., Mar. 16, 1866, Record No.
p_s58-p64_00000; Petition, 39th Cong., Mar. 5, 1866, Record No.
p_s58-p55_00004.
 14

hundred and fifty-one citizens of Bucksport, Maine,

submitted a petition requesting that the House
“impose such conditions upon the Rebel States, as
shall punish treason—at least with ineligibility to
office and loss of power, and reward loyalty with
confidence and honor.”45 Other petitions adopted
different language, including one asking Congress to
devise a constitutional amendment providing “that
no person who has been engaged in the late rebellion
shall ever be eligible to any office of honor, trust, or
profit under the government.”46
The challenge confronting Congress at the end of
the war, according to Massachusetts senator Henry
Wilson, was to deprive both the leaders of the former
Confederacy and any future insurrectionists of power
in such a way, and with such permanence, that “the
curse of civil war may never be visited upon us
again.”47

44 Petition, 39th Cong., Mar. 23, 1866, Record No. p_s58-

p69_00020.
45See Blair, supra n.27, at 296–97 (petition of N. T. Hill and 150
Others, Bucksport, Maine, Mar. 12, 1866, from Chester, Pa.,
Mar. 5, 1866, and from Lewis Holmes and Others from
Bridgewater, Mass., Mar. 2, 1866, RG 233, Committee on the
Judiciary, Petitions and Memorials, NARA).
46 Petition, 39th Cong., Mar. 9, 1866, Record No. p_s58-

p59_00003; see also Petition, 39th Cong.., Mar. 9, 1866, Record

No. p_s58-p59_00005.
47 Cong. Globe, 38th Cong. 1st Sess., 1203 (1864).
 15

II. THE DRAFTING AND RATIFICATION OF

SECTION THREE
After the war, a congressional investigation
uncovered substantial and disturbing evidence of
continued hostility in the southern states. Congress
drafted Section Three out of concern about the
security of the republic and, in revision, both
strengthened and extended it. The bite of Section
Three contributed to the initial refusal of the states
of the former Confederacy to ratify the Fourteenth
Amendment.
A. A Congressional Inquiry Discovered
Widespread Rebelliousness in the
South
When the Thirty-Ninth Congress began its second
session in December 1865, it immediately confronted
the problem of the return to power of ex-
Confederates. To address this and other challenges of
Reconstruction, including the vital matters of equal
citizenship and representation, Congress established
a fifteen-man Joint Committee on Reconstruction.48
Inquiring into conditions in the South, the Joint
Committee heard testimony from 145 witnesses,
including military leaders, elected officials, federal
judges, former Confederates, and Black freedmen. It
sought to determine whether the readmission to the
Union of the states of the former Confederacy “should
only be granted upon certain conditions and

48See BENJAMIN B. KENDRICK, ED., THE JOURNAL OF THE JOINT

COMMITTEE OF FIFTEEN ON RECONSTRUCTION, 39TH CONGRESS,
1865-1867 (1914); ERIC FONER, RECONSTRUCTION: AMERICA’S
UNFINISHED REVOLUTION, 1863-1877, at 246–47, 252–61 (1988).
 16

guarantees which would effectually secure the nation

against a recurrence of evils so disastrous as those
from which it had escaped at so enormous a
sacrifice.”49 A representative example from the more
than 800 pages of testimony is that of J. W. Alvord,
who worked for the Freedman’s Bureau. He was
questioned about conditions in Virginia and in other
southern states.
Question. Now state what, among
the rebel people, is the general feeling
towards the Government of the United
States.
Answer. It is hostile, as it seems to
me, in the great majority of the
southern people. I mean that part of
them who were engaged in the rebellion.
There is evidently no regret for the
rebellion, but rather a defence of it. …
Question. What great object do they
seem to contemplate in their being
readmitted to Congress by their
senators and representatives?
Answer. They seem to suppose that
by re-admission they can get political
power and obtain again the supremacy
which they once had, and with the
exception of slavery, they expect to be
still a prosperous and dominant portion
of our government. Slavery they have
given up in the old form, but they want

49 Report of the Joint Committee on Reconstruction, at x.

 17

to subdue and keep in a low place the

negroes, by some compulsion which it
seems to me they are trying to effect not
only privately but by all the legislation
that I learned of or witnessed.50
From across the South, the testimony tended in
the same direction. To the question, “If they could
have their way would the rebel people generally
remain in the Union?” a tax commissioner answered,
“No; I think they have a stronger aversion and dislike
of the Union than when they seceded.”51 Asked what
accounted for this aversion in Mississippi, a major
general answered, “Their greatest antipathy seems to
arise from the fact that the negro has been employed
against them, and that they cannot control them now
as they please.”52 Even as the hearings took place,
members of Congress continued to receive alarming
reports from the South. One South Carolinian
warned Republican leader Thaddeus Stevens about
ex-Confederates, “trust them not, though they be
willing to swear fealty and devotion morning, noon
and night!”53
A prominent member of the Joint Committee,
John Bingham, a staunch abolitionist from Ohio, led

50Id. at 242–43 (testimony from Virginia, North Carolina, and

South Carolina, including the testimony of J.W. Alvord).
51Id. at 21 (testimony from Virginia, North Carolina, and South
Carolina, including testimony of John Hawkshurst).
52Id. at 5 (testimony from Arkansas, Georgia, Mississippi, and
Alabama, including testimony of Major General Edward Hatch).
53See Nelson, supra n.3, at 41 (quoting a letter from S. Cerley to
Thaddeus Stevens dated Feb. 6, 1866).
 18

the way in constructing the Fourteenth

Amendment. On January 25, 1866, Bingham raised
54

the disqualification of insurrectionists. “There are

men now within these walls who may learn, when it
is too late, that the ballot in the hand of the
conspirator is more dangerous to the safety of the
Republic than the bayonet.” As they re-imagined the
Constitution that winter, Bingham urged his
colleagues to not allow the ex-Confederate states to
be “restored with the governing power … in the
hands of the very men who but yesterday waged war
against the life of the Republic.”55
Bingham spoke for those Republicans who had
lived the entire crisis over slavery, its severing of the
American political system, the shuddering impact of
Dred Scott, secession and the war for the Union. All
of these revolutionary events had occurred on their
watch and they carried the heavy weight of
responsibility for their consequences. Bingham
named the fundamentals at the core of Section Three.
States had “defiantly disregarded” the equal rights of
the freedpeople and, for that matter, all citizens,

54See generally ERIC FONER, THE SECOND FOUNDING: HOW THE

CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION,
ch. 2 (2019); MANISHA SINHA, THE RISE AND FALL OF THE
SECOND AMERICAN REPUBLIC, 1860-1920, ch. 3 (2024).
55Cong. Globe, 39th Cong., 1st Sess., 429 (1866) (remarks of
Rep. Bingham). See also GERARD N. MAGLIOCCA, AMERICAN
FOUNDING SON: JOHN BINGHAM AND THE INVENTION OF THE
FOURTEENTH AMENDMENT, at 113 (2013); Foner, supra n.54, at
82–87.
 19

because of a “want of power in Congress to enforce

that guarantee.”56
Bingham insisted on federal protection of equal
rights under law because the “late rebel states”
would surely not do it themselves. The former
Confederate states, he acknowledged, might not pose
an immediate military threat in their defeated
condition. “But,” Bingham warned, in telling words,
“unless you put them in terror of your laws, made
efficient by the solemn act of the whole people to
punish the violators of oaths, they may defy your
restrictive legislative power when reconstructed.”57
In this historical reality and logic Section Three
found its place at the heart of the Fourteenth
Amendment. Bingham and his colleagues did not
intend it as a political measure to fit their historical
moment alone. “This legislation will be felt,” he said,
“by generations of men after we all have paid the
debt of nature.”58 And against partisan critics he
claimed the Amendment “towers above all party
consideration; it touches the life of the Republic, and
not the miserable inquiry whether this or that party
should be successful in the coming contest.”59
Reconstruction would only be as good or as worthy as
its laws, if indeed Constitutional law could be newly
forged so as to curb the urges of embittered, defeated
men.

56Cong. Globe, 39th Cong., 1st Sess., 429 (1866) (remarks of

Rep. Bingham).
57 Id. at 1094.
58 Id. at 1088.
59 Id. at 429.
 20

B. The Development of Section Three

Demonstrates Congress’s Intent to
Make Disqualification Targeted and
Permanent
In determining how disqualification might be
enacted, Congress looked to earlier measures but
largely devised its own. Precedent existed for
disqualifying insurrectionists both by constitutional
provision and by statute.60 In 1787, in the aftermath
of Shays’ Rebellion, an uprising of farmers in western
Massachusetts, that state’s legislature had passed a
law decreeing that for a period of three years those
who had participated in the insurrection “shall not
serve as Jurors, be eligible to any Town-Office, or any
other Office under the Government of this
Commonwealth.”61
Early in 1866, four constitutional amendments
either disenfranchising or disqualifying
insurrectionists were introduced in Congress.62 In

60Some early state constitutions provided for disqualification

upon impeachment. See, e.g., N.Y. Const. of 1777, art. XXXIII.
61 Act of Feb. 16, 1787, ch. VI, 1787 Mass. Acts 555.
62 Bill, 39th Cong., Feb. 16, 1866, The Amendments Project,
supra n.37, Record No. b039-h18660216cu (“No officer, civil or
military, of the so-called southern confederacy, shall ever be
eligible to hold any office under this government”); Bill, 39th
Cong., Mar. 19, 1866, Record No. b039-h00094 (“No person,
except a citizen of the United States who has at all times borne
true allegiance thereto, shall ever hold office under the United
States”); Bill, 39th Cong., Feb. 19, 1866, Record No. b039-
h00070 (“No person shall be qualified or shall hold the office of
President or Vice President of the United States, Senator or
Representative in the national Congress, ... who has been or
shall hereafter be engaged in any armed conspiracy or rebellion
 21

April, the Joint Committee presented a

disenfranchisement provision as the third section of
an omnibus amendment. This early version read:
Until the 4th day of July, in the year
1870, all persons who voluntarily
adhered to the late insurrection, giving
it aid and comfort, shall be excluded
from the right to vote for
Representatives in Congress and for
electors for President and Vice-
President of the United States.63
When Stevens opened the floor for debate on May 8,
he suggested about Section Three that “Among the
people I believe it will be the most popular of all the
provisions,” confessing that he himself found it too
lenient: “Here is the mildest of all punishments ever
inflicted on traitors.”64
Section Three was the subject of considerable
debate. At each stage of revision, Congress chose
more narrowly directed and yet harsher and more

against the Government of the United States … or who has

voluntarily aided, or who shall hereafter voluntarily aid, abet,
or encourage any conspiracy or rebellion against the
Government of the United States”); and Bill, 39th Cong., Mar. 8,
1866, Record No. b039-s00040 (“No person who has been or
shall be willingly engaged in rebellion against the United States
shall exercise the elective franchise or hold any office under the
authority of the United States or any State”); HERMAN V. AMES,
PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED
STATES DURING THE FIRST CENTURY OF ITS HISTORY, 223–24,
Appx. A (U.S. Gov. Printing Office, 1897).
63 Cong. Globe, 39th Cong., 1st Sess., 2545 (1866).
64 Id. at 2460.
 22

enduring measures, eventually abandoning near-

universal but temporary disenfranchisement in favor
of permanent disqualification of former office-
holders, not only for ex-Confederates but also for
future insurrectionists. Representative James
Garfield of Ohio, for instance, asked what was so
magical about the year 1870: “If the persons referred
to are not worthy to be allowed to vote in January of
1870, will they be worthy in July of that year?”65 On
May 10, the amendment passed the House, as
written, 128-37.66
In the Senate, it was re-written. On May 23,
Michigan senator Jacob Howard said that he “should
prefer a clause prohibiting all persons who have
participated in the rebellion, and who were over
twenty-five years of age at the breaking out of the
rebellion, from all participation in offices, either
Federal or State, throughout the United States.” New
Hampshire senator Daniel Clark proposed limiting
the measure to previous oath-takers: “That no person
shall be a Senator or Representative in Congress or
permitted to hold any office under the Government of
the United States who, having previously taken an
oath to support the Constitution thereof, shall have
voluntarily engaged in any insurrection or rebellion
against the United States, or given aid or comfort
thereto.”67

65 Id. at 2463.
66 Id. at 2545.
67 Id. at 2768 (remarks of Sen. Clark).
 23

This sharpening of Section Three elicited the

suggestion that barring prominent men from office
would backfire. Maryland senator Reverdy Johnson
asked, “Do you not want to act upon the public
opinion of the masses of the South? Do you not want
to win them back to loyalty? And if you do, why
strike at the men who, of all others, are most
influential and can bring about the end which we all
have at heart?”68 To this, those who favored the
House draft countered, “Slavery, by building up a
ruling and dominant class, had produced a spirit of
oligarchy adverse to republican institutions, which
finally inaugurated civil war. The tendency of
continuing the domination of such a class, by leaving
it in the exclusive possession of political power, would
be to encourage the same spirit, and lead to a similar
result.”69
Senator Howard introduced what was essentially
the final version on May 29:
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

68 Id. at 2898–99 (statement of Sen. Johnson).

69 Report of the Joint Committee on Reconstruction, at xiii.
 24

States, shall have engaged in

insurrection or rebellion against the
same, or given aid or comfort to the
enemies thereof; Congress may by a vote
of two-thirds of each House, remove
such disability.70
The version adopted by Congress declined the
invitation of the earlier omnibus amendment to
intervene in and regulate the manner prescribed by
state legislatures for holding elections of senators or
representatives, or for appointing electors for
President and Vice-President, by disenfranchising
insurrectionists. Instead, the drafters of the final
version of Section Three chose to regulate who was
eligible to hold state or federal office, a more
precisely targeted and stricter measure. They did not
place either former presidents or presidential
candidates beyond its reach, exceptions that would
have defied the logic of Section Three.
C. Southern States Resisted Ratification,
in part, Because of the
Disqualification of ex-Confederates
The Fourteenth Amendment passed the Senate on
June 8 and was concurred in by the House five days
later.71 Nearly all Republicans voted for it and nearly
all Democrats against. During the ratification
debates, the public avidly inquired into the
consequences of Section Three. In February 1867, for
instance, an Ohio newspaper noted that not having

70 Cong. Globe, 39th Cong., 1st Sess., 2869, 2921 (1866).

71 See Nelson, supra n.3, at 58.
 25

Section Three “would render Jefferson Davis eligible

to the Presidency of the United States.”72 The
Amendment initially fell short of ratification, as
every southern state but Tennessee rejected it.
Southern legislators objected in particular to Section
Three. The Texas legislature decried the Amendment
as involving the “loss of our honor as a people, and
our self respect as individual men”; the Arkansas
legislature complained that Section Three would lead
to the disqualification of “many of our best and wisest
citizens”; and the North Carolina legislature
proposed an alternative amendment, omitting
Section Three.73
These Southern reactions reflected the emerging
ideology of the Lost Cause, a tenet of which was the
argument by ex-Confederates that they had never
engaged in “rebellion,” should never be considered
“rebels,” and had merely exercised legitimate rights
of “sovereignty” with secession and war. Section
Three had always been intended to thwart these
claims. In March 1867, over President Johnson’s
veto, Congress passed the Military Reconstruction
Act, which stipulated that no state could re-enter the

72 Gallipolis Journal, Feb. 21, 1867. See also Gerald N.

Magliocca, Shooting Fish in a Barrel: The Presidency and
Section 3, Balkinization (Jan. 2, 2024),
https://balkin.blogspot.com/#7674686035441372191.
73Joseph B. James, Southern Reaction to the Proposal of the
Fourteenth Amendment, 22 J. of Southern History 477, 485, 491,
495–96 (1956).
 26

Union without first ratifying the Fourteenth

Amendment.74
The Fourteenth Amendment was ratified on July
9, 1868. Unlike the Thirteenth and later the
Fifteenth Amendment, no overt celebrations ensued
in Congress or elsewhere. The Fourteenth
Amendment represented a series of compromises,
fully satisfying almost no one. But in the Fourteenth
Amendment the United States now possessed the
blueprint of a new Constitution, a new kind of
federalism, a commitment to equality before the law,
and a method to legally guarantee the essential
results of the Civil War.75 That blueprint included
prohibiting past office-holders from holding federal or
state office after engaging in an insurrection against
the Constitution.
III. THE PERSISTENCE OF SECTION
THREE
The star-crossed prosecution of Jefferson Davis
both shaped and illuminated the meaning of Section
Three. After the ratification of the Fourteenth
Amendment, continued concern about a possible
presidential bid by Davis informed subsequent
Congressional action on amnesty. Section Three
remains in place and in force in the twenty-first
century.

74JOHN FABIAN WITT, LINCOLN’S CODE: THE LAWS OF WAR IN

AMERICAN HISTORY, 313–14 (2012).
75 See Foner, supra n.48, at 90–92.
 27

A. The Jefferson Davis Case Showed That

Section Three Required No Criminal
Conviction and Was Self-Executing
Amici curiae briefs filed in support of the
Petitioner by individuals who are not historians
claim that “Historical records ... reveal that the
Framers and ratifiers of the Fourteenth Amendment
were not concerned that a Confederate leader could
attain the presidency” and that “No Republican
seriously feared that the national electorate would
place a former rebel like Jefferson Davis in the White
House.”76 These assertions are mistaken.
Obstacles to prosecuting Davis had made it
increasingly likely that he would not be convicted on
treason charges, thus underscoring the need for
Section Three. As Lieber had worried, the failure to
convict would mean that Davis would not fall under
the disqualification provisions of the Second
Confiscation Act. Section Three augmented that Act’s
disqualification provision by eliminating the need for
a treason conviction before a federal jury, at least
insofar as prior oath-takers were concerned.77
Moreover, once underway, the Davis prosecution

76 Brief of Former Attorneys General Edwin Meese III, Michael

B. Mukasey, and William P. Barr, et al. as Amici Curiae

Supporting Petitioner, at 3 (Jan. 18, 2024) (No. 23-719)
(hereinafter “Br. of Meese et al.”); Brief for Professor Kurt T.
Lash as Amicus Curiae in Support of Petitioner, at 2 (Jan. 16,
2024) (No. 23-719).
77 By 1866, Lieber discouraged further treason proceedings out
of a growing fear that Davis would be acquitted, which made
Section Three’s disqualification more urgent. See Witt, supra
n.74, at 320–21.
 28

illuminated the meaning of Section Three by showing

that lawyers and judges understood it to be self-
executing.78
A pretrial hearing in the Davis case took place
before a circuit court in Richmond in December
1868.79 Chief Justice Salmon P. Chase, riding circuit,
presided over the court alongside U.S. District Court
Judge John C. Underwood for the District of Virginia.
Underwood had impaneled Black men as potential
jurors, which had elicited widespread public outrage
in both the North and the South.80 Davis’s lawyer
complained, “I find it impossible to believe that we
are destined to play parts in a farce so contemptible
as a trial before Underwood and a set of recently
emancipated Negroes.”81
This furor contributed to Chase’s interest in
derailing the trial: his political ambitions made

78 Petitioner’s amici offer Thaddeus Stevens’s May 10, 1866

assertion that Section Three “will not execute itself” as evidence
that Section Three requires enabling legislation. Br. of Meese et
al. at 22 (quoting Cong. Globe, 39th Cong., 1st Sess. 2544
(remarks of Rep. Stevens)). Crucially, though amici do not
mention it, Stevens’s assertion referred to the earlier
disenfranchisement version of Section Three, not the amended
disqualification version passed by Congress. Even had Stevens’s
argument applied to the provision at issue here, he offers both
federal and state examples of enabling legislation.
79Jill Lepore, What Happened When the U.S. Failed to Prosecute
an Insurrectionist Ex-President, The New Yorker, Dec. 4, 2023.
80N.Y. Herald, Nov. 23, 1867; Richmond Dispatch, Nov. 26,
1867.
81Nicoletti, supra n.26, at 275 (quoting a letter from Charles
O’Conor to Varina Davis, dated Oct. 29, 1867).
 29

presiding over the trial a no-win proposition.

Privately, he suggested to Davis’s attorneys that
Davis could no longer be prosecuted for treason
because, having been automatically disqualified for
office upon the ratification of the Fourteenth
Amendment, he had already been punished. Davis’s
defense made this argument. “It needs no legislation
by Congress to give it effect,” his lawyer said.82 The
prosecution countered that the Constitution is not a
criminal code and that being disqualified for office is
not a penalty.83 Chase agreed with the defense;
Underwood agreed with the prosecution.84
On February 15, 1869, the prosecution entered a
nolle prosequi. That May, in Griffin’s Case, Chase
issued an opinion (Section Three is not self-
executing) that contradicted his view in Davis (it is
self-executing). In Griffin, Chase invoked the
“inconveniences” that would follow from the
retroactive disqualification of judges under a “literal
interpretation” of Section Three and crafted an
interpretation purpose-built to suit his preferred
outcome.85 It had no effect on Section Three.

82See Nicoletti, supra n.26, at 293–95. See also JEFFERSON

DAVIS, 3 JEFFERSON DAVIS, CONSTITUTIONALIST: HIS LETTERS,
PAPERS, AND SPEECHES, 199–200 (1923).
83 Id. at 204–08.
84 See DAVID W. BLIGHT, RACE AND REUNION: THE CIVIL WAR IN
AMERICAN MEMORY, 57–61 (2001) (On the use of the entire
affair for an early form of national reconciliation).
In re Griffin, 11 F. Cas. 7, 25 (C.C.D. Va. 1869); Gerard N.
85

Magliocca, Amnesty and Section Three of the Fourteenth

Amendment, 36 Const. Commentary 87, 102–08 (2021).
 30

For decades, Jefferson Davis stood as the

cautionary tale through which Congress and the
public understood Section Three.86 No danger better
illustrated the peril the nation would have faced
without Section Three than the prospect of the leader
of an insurrection running for President.
B. Requests for Amnesty Underscore the
Broad and Immediate Impact of
Section Three
After the Fourteenth Amendment was ratified, ex-
rebels petitioned Congress seeking removal of the
disabilities automatically imposed by the
Disqualification Clause. Congress received hundreds
of these petitions before the 1870 Enforcement Act.
They came in droves, sometimes nearly a dozen a
day.87 And, because individual petitions were often
submitted on behalf of large numbers of people—for
example, an 1869 petition for “26 members of the
Georgia legislature”—they likely represent
thousands of petitioners. 88

Johnson’s successor urged Congress to favor

reconciliation. “More than six years having elapsed
since the last hostile gun was fired between the
armies then arrayed against each other,” President
Ulysses S. Grant told Congress in 1871, “it may well

86Public Ledger, Oct. 3, 1871. This Memphis newspaper noted

that “Fred Douglass might be President” but “Every Southern
man who lies under the ban of the Fourteenth Amendment
cannot.”
87 See, e.g., H.R. Journal, Jan. 5, 1869, at 100.
88 H.R. Journal, Feb. 9, 1869, at 306.
 31

be considered whether it is not now time that the

disabilities imposed by the Fourteenth Amendment
should be removed.”89 By 1872, Congress estimated
the number of petitioners at “fifteen or sixteen
thousand.”90 When Congress considered a general
amnesty bill, some members tried, without success,
to attach civil rights provisions. As Black
congressman Joseph Rainey declared about ex-
Confederates: “we are willing to accord them their
enfranchisement, and here today give our votes that
they may be amnestied” but “there is another class of
citizens in this country who have certain dear rights
and immunities which they would like you, sirs, to
remember and respect.”91 Congress in 1872 passed a
blanket amnesty, decreeing that
all political disabilities imposed by the
third section of the fourteenth article of
amendments of the Constitution of the
United States are hereby removed from
all persons whomsoever, except
Senators and Representatives of the
thirty-sixth and thirty-seventh
Congresses, officers in the judicial,
military, and naval service of the United

89Ulysses S. Grant, Third Annual Message to Congress, Dec. 4,

1871.
90Cong. Globe, 42nd Cong., 2d Sess., 3381 (1872) (remarks of
Rep. Butler).
91See Magliocca, supra n.85 at 87–130; Cong. Globe, 42nd
Congr., 2d Sess. 3382–83 (1872) (remarks of Rep. Rainey).
 32

States, heads of departments, and

foreign ministers of the United States.92
The 1872 Amnesty Act specifically did not extend
to anyone who had served in Congress between 1859
and 1863, which included Jefferson Davis.
Disqualification remained in full force for those not
covered by the Act. Newspapers continued to observe
that, without Section Three, Davis or another ex-
Confederate might become President of the United
States.93 Ex-Confederates would indeed soon be
elected to governorships and other offices all across
the South. In 1876, Maine Republican James Blaine
argued in Congress against extending amnesty to
Davis because it would make him “eligible and
worthy to fill any office up to the Presidency of the
United States.”94 The Chicago Tribune complained
that a new amnesty bill before Congress was “a bill to
make DAVIS eligible to the presidency”95 and a
Burlington, Vermont, newspaper regretted that the
legislation seemed designed to make Davis “the
Democratic candidate for President in 1876 or
1880.”96 In 1879, Northerners expressed gratitude
that Section Three meant that Davis could not run
for president.97 (As late as 1896, Jefferson Davis’s

92 Act of May 22, 1872, ch. 193, 17 Stat. 142.

93 See Magliocca, supra n.72.
94 44 Cong. Rec. 325 (1876) (remarks of Rep. Blaine).
95 Chicago Tribune, Jan. 12, 1876.
96 Burlington Weekly Hawkeye, Jan. 20, 1876.
97 Sioux City Daily Journal, Mar. 5, 1879. See also, e.g.,
Belleville Advocate, May 7, 1880 (stating that holding President
 33

nephew, John Taylor Wood, who had been a U.S.

Naval officer before serving in the Confederate Navy,
and who was never convicted of any crime, petitioned
Congress for the removal of his Section 3
disabilities.98)
In the South, Jefferson Davis became an emblem
of the Lost Cause. After having been honored in one
ceremony after another across the South and
delivering a fierce defense of secession in his
memoirs, Davis died in 1889. In 1898, with a new
generation in power, Congress enacted a blunderbuss
amnesty for past oath violators, closing a chapter in
the story of the Civil War.99 Yet it left Section Three
in place for future generations, a bulwark against
disunion and lawlessness.
CONCLUSION
The meaning of Section Three of the Fourteenth
Amendment is best discerned in the actual history of
Reconstruction. Haunted by the nation’s suffering
and fearful of disloyalty and ongoing political
violence, Congress conducted an investigation into
conditions in the South and determined that the
disqualification of office-holders who had engaged in

Grant ineligible to a third term of office would “be placing him

on a par with Jefferson Davis so far as ‘eligibility’ for the
presidency is concerned”); Buffalo Morning Express, Apr. 28,
1882 (warning that a universal amnesty would mean that Davis
could be “Commander-in-Chief of the Army of the United
States”).
98An Act To Remove the political disabilities of Colonel John
Taylor Wood, Febr. 11, 1897, 54th Congr., ch. 17, 29 Stat. 801.
99 Act of June 6, 1898, ch. 389, 30 Stat. 432.
 34

an insurrection against the Constitution was

necessary for the security of the republic. Their
concerns included a possible bid for the presidency by
Jefferson Davis. Section Three also gave the federal
government the authority to guide reconstructed ex-
Confederate states to find new leadership committed
to equal rights for all. With an eye toward
establishing enduring fundamental law and ensuring
domestic tranquility, they framed a provision
designed to hold future insurrectionists accountable
by the same means. They knew that no one in the
United States is above the law, not even the
President, and that no republican government can
afford to return insurrectionists to office. As Missouri
Republican John B. Henderson declared the day he
cast his vote for the Fourteenth Amendment in the
Senate, “The language of this section is so framed as
to disenfranchise from office the leaders of the past
rebellion as well as the leaders of any rebellion
hereafter to come.”100 May the curse of that hereafter
never come again.

100 Cong. Globe, 39th Cong., 1st Sess., 3035–36 (1866).

 35

Respectfully submitted,
JONATHAN B. MILLER
Counsel of Record
JOSHUA A. ROSENTHAL
MICHAEL ADAME
EUSHRAH HOSSAIN
PUBLIC RIGHTS PROJECT
490 43rd Street, Unit #115
Oakland, CA 94609
(510) 738-6788
[email protected]

Counsel for Amici Curiae

January 29, 2024