Jefferson Davis and Section 3
Some historical context.
Via Jill Lepore in The New Yorker: What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President.
Lepore describes the treason trial against Jefferson Davis:
And not too many months after that the federal government’s case against him fell apart. There’s no real consensus about why. The explanation that Davis’s lawyer Charles O’Conor liked best had to do with Section 3 of the Fourteenth Amendment, known as the disqualification clause, which bars from federal office anyone who has ever taken an oath to uphold the Constitution of the United States and later “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” O’Conor argued that Section 3’s ban on holding office was a form of punishment and that to try Davis for treason would therefore amount to double jeopardy.
[…]
There was one last gasp. With Chandler’s term as district attorney expiring in June, Evarts recruited the Boston lawyer Richard Henry Dana to join the prosecution. Dana worked hard to prepare for trial. […] But Dana reluctantly concluded that the trial should not proceed. What seemed more urgent was to disqualify Davis from ever again holding public office; sending him back to prison, or, God knows, hanging him, could have been almost as bad for the country as acquitting him. Dana drafted a letter of resignation on both lawyers’ behalf, and sent it to Evarts, who pocketed it, unsure what to do.
By the time Chase and Underwood finally held court together in Richmond, in December, 1868, the Fourteenth Amendment had been ratified, and Chase had discreetly suggested to the defense a new line of reasoning: that Davis could no longer be prosecuted for treason because, having been disqualified for office upon the amendment’s ratification (“It needs no legislation on the part of Congress to give it effect,” the defense said), he had already been punished. O’Conor gleefully offered up this argument, suggested to him by the Chief Justice himself. Dana, who knew the argument to be nonsense, countered that the Constitution is not a criminal code and that being disqualified from office is not a penalty. Chase agreed with O’Conor; Underwood agreed with Dana. The case would have gone to the Supreme Court. But, on Christmas Day, Johnson pardoned “every person who directly or indirectly participated in the late insurrection or rebellion,” and, not long after that, the prosecution entered a nolle prosequi. The end.
There is a lot that is striking about this, but perhaps the most salient point for the conversations that we have been having here at OTB about section 3 of the 14th Amendment, is that at the time of ratification, it was seen as self-executing. Moreover, this suggests that not only is a conviction not necessary, it is noteworthy that section 3 was interpreted as precluding the need for a trial at all.
Apart from the specifics of the 14th Amendment, the piece is interesting (and more than a bit chilling) in the parallels between then and now. First, the fact of the matter is that divisions within the political/governing made/make dispassionate applications of the laws difficult (if not impossible). Second, fear of popular response to just outcomes made such outcomes impossible in the post-Civil War era, and seem to be an obstacle in the now.*
Another key theme is how slowing the wheels of justice contributed to injustice in the 1860s and may being doing the same now.
As a general statement, I would note that the inability of the United States government to prosecute top-level Confederates (let along other failings of Reconstruction) is at least in part why the legacy of that war continues to plague our society and our politics in the now.** As a generic matter, it is truly astounding that the president of a breakaway country was not tried and convicted of treason (let alone that the CSA’s Vice President was sent back to the US Senate, even if he wasn’t seated)*** is an appalling injustice and speaks to the incomplete outcome of the war itself.
Or, perhaps all this just underscores that there are rarely clean answers to these kinds of messy situations. Which is both an obvious, and yet not especially comforting, place to conclude.
*For example: the jury in the Davis trial had Black members and it was feared that a White man sentenced to death by a jury with Black members would cause widespread negative responses from significant segments of the public.
**Indeed, just yesterday I drove past what was “Jefferson Davis High School” which was only renamed last year. I am constantly reminded of Faulkner, “The past is never dead. It’s not even past.”
***Side note that I could not fit properly into the flow of the post:
In January, 1866, Alexander Stephens, the former Vice-President of the Confederacy, was elected to the Senate. Two former Confederate senators and four former Confederate congressmen had also been sent to the Thirty-ninth Congress, which had convened the previous month for its second session. The clerk refused to call their names at roll, and they were never sworn in. But their presence made clear the need for measures keeping “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,” as a congressional committee wrote.
I find this interesting insofar as it underscored the need for something like section 3, and in some kind of self-executing fashion.
I agree entirely. But I find myself more and more uncomfortable with what are basically Originalist arguments, what did the drafters believe. Perhaps its just that my personality leans to Consequentialism. But Originalism makes us what Karl Popper described as a “closed society”, one unable, or unwilling, to adapt. The consequences of reelecting Trump are obvious to all except the ignorant or politically blinded. We have a law on the books, actually an amendment, that on its face removes Trump. So why let him have a second bite at the apple?
However, it comes down to what six GOP appointed Justices say. So this is all pissing in the wind. Except, we should make it as expensive as possible for the Federalist Stepford justices to do what they’re going to do. Again. So more power to your argument, or any other that Trump is desqualified.
@gVOR10: I think it goes beyond originalism, to the plain text on the page.
The background is helpful, in my view, and addressed (I think) objections like those James has levied.
I also think that the background is something the conservatives on the Court are going to have to contend with.
@Steven L. Taylor:
I expect that some will.
Others, like Justice Alito, have often demonstrated a willingness to abandon any sense of addressing the background when it gets in the way of his predetermined partisan desires.
Aside, it will be interesting to see who ends up writing the decision (and if it isn’t Gorsuch, if he will write a concurring opinion or descent given that he’s arguably the biggest advocate for State’s Rights on the court today).
For more background, the Senators were not popularly elected but rather selected by their state legislatures as this was before the 17th Amendment.
Davis was not the only Confederate to escape trial following the surrender at Appomattox. In June of 1965, at the insistence of President Johnson, Lee, Longstreet and 27 other Confederate officers were indicted for treason in Richmond, Virginia. Grant, however, insisted to Johnson that this violated the terms of the surrender that he had negotiated with Lee at Appomattox. Johnson chose not to challenge Grant and the charges were dismissed.
The most remarkable rebel perhaps was Lucius Quintus Cincinnatus Lamar, who served in the House for four years, left to become an enthusiatic supporter and servant of the Confederacy, went back to the House in 1873, moved to the Senate four years later, and ended up on the Supreme Court.
@Steven L. Taylor: Honestly, my objection is a narrow one. Davis and company were clearly insurrectionists under Section 3 because their insurrection was the reason Section 3 existed and everyone understood that. That Section 3 has essentially never been used since then and that Congress has never used the authority conferred by the Amendment to craft laws for its use in non-Civil War insurrections leaves us without much to go on. And the fact that the President, albeit a Confederate sympathizer, at the time the Amendment was passed and several subsequent Congresses pardoned/granted amnesty to the Civil War insurrectionists further complicates matters.
@Matt Bernius: I can’t imagine Chief Justice Roberts will allow anyone but himself to write the opinion, given is concern for the reputation of the Court and his own legacy.
Davis, et al. could have made an ex post facto argument about the application of the 14th amendment to him when the 14th didn’t exist at the time of his rebellious acts. Yes, it would have been a Hail Mary, but no more so than arguing that applying section 3 to him was double jeopardy. Jefferson Davis’ lawyers were feeling around in the dark, even more so than Trump’s are today. In the Reconstruction years, the country desperately needed the kind of wisdom and political savvy Lincoln could have provided.
@James Joyner:
Roberts is my guess as well. That said they handed Alito Dobbs v. Jackson so who knows??