Dem 51
image description
GOP 49
image description

The Fourteenth Amendment, Part II: Let Us Have Peace

Last week, we had an item on the passage of the Fourteenth Amendment, with a particular emphasis on the question of how the U.S. ended up with something that is simultaneously so firm in the restrictions it imposes and yet so vague about how exactly they are to be imposed. Today we're going to look at the roughly 4-year period after the Fourteenth Amendment was ratified on July 9, 1868.

To start, note that nobody had any doubt whatsoever that Section 3 of the Amendment, the one that prohibits insurrectionists from holding political office, applied to vast swaths of the Southern populace on the day that the Amendment became law. President Andrew Johnson, though largely endowed with a rubber spine, interpreted it that way, and issued orders to that effect to the generals who were governing the former Confederate states under martial law. The Congress, which had written and passed the Fourteenth Amendment, certainly understood its own intent. The members acted consistent with that intent even before the Fourteenth was passed, refusing to seat at least a dozen former Confederate members-elect, and also impeaching and removing from office the pro-Confederate judge West Hughes Humphreys. Perhaps most importantly, the Southern populace well understood the situation. The House Select Committee on Reconstruction, which sat from 1867-71, received over a thousand requests from Southern would-be officeholders, asking for their eligibility to be restored.

The upshot: It was so abundantly clear that anyone who had violated their oath by rebelling against the United States was out of luck, very few people actually put Section 3 to the test. Between 1869 and 1872, there are only six known cases of someone being explicitly disqualified from office under the terms of the Fourteenth Amendment. Here is a rundown:

  1. John H. Christy (1868): Exactly what oath Christy took before the Civil War is not known. It's also not known exactly what he did during the Civil War, as the documentation that is left to us just says he "[gave] aid, countenance, counsel, and encouragement to persons engaged in armed hostility to the United States." Nonetheless, when Christy was elected to the U.S. House of Representatives from Georgia, Gov. Rufus Bullock (R-GA) refused to issue a certificate of election, as he found that Christy was disqualified by the Fourteenth Amendment. The House sustained the Governor, and refused to seat Christy.

    Bullock tried to give the job to the other candidate, John Wimpy, but it turned out that Wimpy did not, in fact, pay people back on Tuesday if they bought him a hamburger today. No wait, wrong Wimpy. This one had likewise taken a pre-war oath and had served in the Confederate Army, so he was not eligible, either. Not terribly long thereafter, thanks to his habit of trying to protect the civil rights of formerly enslaved people, Gov. Bullock was strongly encouraged by men in robes and hoods to leave the state before his term was up, lest he find himself with a neck that was no longer intact. He wisely took their advice.

  2. Kenneth H. Worthy (1869): He was a county sheriff, then served in the Confederate government, and then was reelected as a county sheriff after the war. He was barred from assuming office by a county commissioner in North Carolina, and filed suit in state court to be allowed to assume his post. In Worthy v. Barrett, the state Supreme Court found that it did not matter that Worthy had never engaged in acts of violence against the United States, and it also did not matter that the oath he took as sheriff was not a federal oath, he was clearly disqualified under the terms of the Fourteenth Amendment as he had participated in an insurrection in violation of his oath.

  3. William L. Tate (1869): Tate was a county attorney before the Civil War, then served as an officer in the Confederate Army, then was elected a state solicitor. When he submitted his certificate of election to a judge, in order to be sworn in for his new position, the judge said "no." Tate sued, and in In re Tate, his disqualification was upheld.

  4. J.D. Watkins (1869): Watkins was a district attorney prior to the Civil War, and served in some lost-to-time capacity during the War (though likely not as a soldier, as there would be documentation of that). After the surrender at Appomattox, Watkins was elected a state judge, and a quo warranto action was filed against him by one of his fellow judges. This is a demand that can be filed by any citizen, and that requires someone prove they are qualified for the office they hold. In Watkins' case, the argument was made in State ex rel. Sandlin v. Watkins that he was not qualified, both under the terms of the Fourteenth Amendment and under the terms of a state law meant to allow enforcement of the Fourteenth Amendment. Watkins lost and was removed from the bench; the key finding here was that the restriction is a qualification for office and not a criminal penalty. So, one need not commit a crime, necessarily, to trigger the provision.

  5. A.F. Gregory (1871): This is the case about which the least is known. There is no documentation as to what pre-war post Gregory held, or what he did during the Civil War. However, after he was appointed as a postmaster in Grayson County, VA, the U.S. Postmaster General filed a quo warranto action and Gregory was removed.

  6. Zebulon B. Vance (1872): This is the famous one, at least among historians. Vance was a U.S. Representative before the war. During the war, he was not only a Confederate, he was one of the most prominent Confederate officeholders, serving as governor of one of the South's most populous states, North Carolina. In 1872, he was chosen as a U.S. Senator by the North Carolina legislature, which by then was back under the control of white conservatives. The losing candidate challenged the validity of Vance's election under the terms of the Fourteenth Amendment, and ultimately, the U.S. Senate refused to seat either of them.

Those are the six known contemporaneous enforcements of Section 3 of the Fourteenth Amendment. Not a lot, but the following principles were nonetheless clearly established:

So, how come there were only six disqualifications in total, and then they stopped after 1872? That requires another overview of the milieu. Recall how we wrote that things changed rapidly on the ground during the Reconstruction Era? Well, the things on the minds of government officials had evolved a fair bit from 1868:

Now, as we did last time, let's run down the key players in early 1870s federal politics:

In short, after the Fifteenth Amendment was added to the Constitution on February 3, 1870, the time for transformative legislation was at an end. That said, the next 2 years did see two important pieces of legislation that, while possibly incongruous to the modern reader, made perfect sense in the context outlined above. The first of these was The Enforcement Act of 1871, which is better known as The Ku Klux Klan Act. The original draft was the work of one of the few remaining congressional radicals (Benjamin Butler), and was revised into passable form by one of the moderates (Samuel Shellabarger). It was requested by Grant, passed the Congress a month later, and used to great effect to destroy the first incarnation of the KKK. Hundreds of Klansmen were identified, put on trial (often with Black juries—can someone say "schadenfreude"?), and imprisoned. Habeas corpus was suspended in nearly a dozen counties. The Klan would not come back to life for nearly 50 years.

The second piece of legislation, also passed at the instigation of Grant, was The Amnesty Act of 1872. It says:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), 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 States, heads of departments, and foreign ministers of the United States.

When Grant applied his signature to the bill, it restored the eligibility for office of nearly 150,000 former Confederates (including the aforementioned Zebulon Vance, who was promptly sent to the U.S. Senate again by his fellow North Carolinians, where he served for 15 years). Consistent with the spirit of the occasion, Grant also pardoned 500 high-ranking Confederates (though the 500 remained ineligible for officeholding).

The thinking here, whether agreeable to the modern reader or not, should be fairly evident. In the 1870s, Northern leadership, including the President, remained willing to protect the rights of the freedmen and freedwomen (although that impulse would fade fairly quickly). At the same time, they had lost enthusiasm for imposing punitive measures on white people, even former Confederates. The country was, on the whole, ready to move on from the Civil War, and bringing an end to these measures was a way to do that.

That is how the country ended up in a situation where there were literally hundreds of thousands of former Confederates subject to Section 3 of the Fourteenth Amendment, and yet only half a dozen who were actually, formally disqualified by it. In part, this was because thousands of Southerners yielded to the Amendment's terms, and did not try to put it to the test. And in part, it was because in the rapidly evolving postwar world, interest in enforcing Section 3 faded quickly. That said, the events of the four-year period from 1868 to 1872 made very clear that Section 3 was meant to be very broadly applicable, and enforceable in a wide variety of ways.

Next Tuesday, we'll take the story from 1872 up to the present, including the only two enforcements of Section 3 of the Fourteenth Amendment in the past 150 years. (Z)

This item appeared on Read it Monday through Friday for political and election news, Saturday for answers to reader's questions, and Sunday for letters from readers.                     State polls                     All Senate candidates