« Kevin Tobia et al.: Ordinary Meaning and Ordinary People
Michael Ramsey
| Main | Eli Nachmany on Delegation and the Northwest Ordinance
Michael Ramsey »


Gerard Magliocca on the Original Meaning of the Amnesty Act [Updated with Comments]
Michael Ramsey

At Prawfsblawg, Gerard Magliocca: The Correct Reading of the 1872 Amnesty Act (responding to the district court holding in the Cawthorn eligibility litigation that the Act provides prospective amnesty from Section 3 of the Fourteenth Amendment).  From the beginning:

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 To conclude otherwise would mean that Congress repealed Section Three of the Fourteenth Amendment in 1872.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. ...

Plus four more reasons.

Here's the whole of the Amnesty Act:

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.

COMMENT FROM ANDREW HYMAN: I tend to agree with Professor Magliocca that Congress cannot prospectively waive section three of the Fourteenth Amendment, but I don’t agree with all of his reasons.  Here’s what section three says (emphasis added):

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.

Unlike Professor Magliocca, I don’t think the pardon power is very relevant here. It’s likely that no presidential involvement is required for Congress to remove the section three disability, thus section three departs from Pardon Clause requirements, so there’s no reason to assume that a section three removal must be retrospective merely because pardons must be retrospective.
Section three speaks of congressional power to “remove” a disability, not prevent a disability or exempt anyone from a disability.  So, I agree with Professor Magliocca’s ultimate conclusion. Perhaps it’s possible to “remove” a disability from a person who hasn’t been born yet, but that’s not the most natural interpretation if the disability can only attach after someone is born because of some event in that person’s life.

Article II, Section 1 of the Constitution discussed a disabled president and what happens when “the Disability be removed.” The framers of the Fourteenth Amendment apparently borrowed that language, which obviously refers to a disability that attaches after someone is born, and a subsequent removal of the disability.

MICHAEL RAMSEY ADDS:  Agreed, and I also don't think the dispensing power, relied upon by Professor Magliocca, is very relevant.  The Crown's claim to a dispensing power, and the Constitution's rejection of that power in the take care clause, is relevant to issues of executive power but not so much to issues of congressional power.  Parliament could of course change any aspect of English law (including "constitutional" aspects of English law) by statute.  Congress was not understood to have this power under the original Constitution (as Marshall said in Marbury, that was a large part of the point of a written Constitution), but I don't see why Congress couldn't be given that power as to a particular subsequent part of the Constitution, if that's what the drafters provided.  I agree with Andrew, though, that that isn't the best reading of what the drafters of Section 3 provided.

I also agree with Professor Magliocca that the original meaning of the Amnesty Act didn't grant prospective relief from Section 3 of the Fourteenth Amendment.  The Act's reference to "Senators and Representatives of the thirty-sixth and thirty-seventh Congresses" (that is, the Congresses immediately before and during the civil war) shows that the Act was directed at a particular episode of insurrection, rather than being a general override of Section 3.