Just over 155 years ago, on July 9, 1868, the second of the three Reconstruction Amendments was adopted. The 14th Amendment to the Constitution speaks to citizenship, legislative apportionment, and the disqualification from holding public office of those who "have engaged in insurrection or rebellion..." Although ratified universally by the former Confederate states—it was required to regain Congressional representation—it was not observed consistently.
The undersigned, republican members of the legislature of Georgia, duly elected by the suffrages of the legal voters of the State, beg leave to invoke the attention of the Congress to the state of things in Georgia and to the unwarrantable usurpation of the democratic members of the legislature of the State.[1]
On Sept. 18, 1868, over sixty legislators appealed to the Congress of the United States to decry the “illegal organization” of the Georgia legislature and to request:
…a court or commission be established by Congress in accordance with the plenary powers given to Congress by said [the 14th] amendment, to inquire into and pass upon the eligibility of such members of the general assembly…on account of his participation in the rebellion…[2]
Source: U.S. Congressional Serial Set, 1817-1994, from Readex.
Georgia remained unreconstructed and under military rule giving the commanding officer of the Third Military District, Gen. George Meade, the authority to oversee the formation of the state government which included the seating of the General Assembly. Responding to a letter from the provisional governor informing him the legislature had organized and asking for his directions, Meade, on July 8, 1868, wrote:
Major General George Meade
In reply I beg leave to state that I have no instructions to give you, further than to make known that, in my judgment, neither house is organized legally until they have complied with the requisitions of the reconstruction acts, and the act which became a law June 25, 1868, all of which prohibit any one holding an office under the State who is excluded by section 3 of the amendment to the Constitution known as article 14.[3]
By July 20, however, Meade’s perspective had been changed by resolutions from both houses of the Georgia legislature, in a letter to the provisional governor, Rufus Bullock, he wrote:
I have now to advise and instruct you that each house having complied with requisitions of my communication of the 18th instant, by examining into and deciding on the eligibility of their members under the acts of Congress and the 14th article constitutional amendment, I have no further opposition to make their proceeding to the business for which they were called together, as I consider them legally organized…[4]
Shortly after being recognized as legally organized some of the members of the General Assembly also changed their perspective, according to the Sept. 18 memorialists who write:
For a time no assaults were made upon the rights of members who held seats. It was, however, soon discovered that the professions of kindness expressed by democratic members, when they were on trial, were insincere and made only for effect, as resolutions were introduced and have been passed in both houses declaring all the colored members ineligible for no other reason except their color. But the wrong did not stop here. Not only were the colored representatives and senators expelled, but their democratic opponents in the “race,” who received the next highest vote, many of them having received a very small vote, some less than 100, and part of them clearly ineligible on account of participation, directly or indirectly, in the rebellion, have been seated in place of the colored members expelled.[5]
The signatories also requested:
…all persons duly elected to the legislature, and not ineligible under the constitutional amendment, be allowed to resume their seats and retain them till they are ejected by a fair decision of legal legislation.[6]
On Jan. 25, 1869, Sen. William Stewart, from the Committee on the Judiciary, reported his examination of the “credentials of Joshua Hill, claiming to be senator elect from Georgia” and, tangentially, the validity of the organization of the Georgia legislature. His findings included:
Senator William Stewart
Your committee are of opinion that the act of June 25, 1868, which required that the constitutional amendment should be duly ratified, must be held to mean that it must be ratified by a legislature which has in good faith substantially complied with all the requirements of law providing for its organization. It is true, that after this pretended investigation by the two houses of the eligibility of their members, the district commander recognized the validity of their proceedings, and permitted the State officers to be inaugurated and the State government to go into operation. On the 21st day of July, the legislature passed a resolution of ratification of the 14th amendment and the other resolution required by the act of June 25, 1868.
On the 28th of July, 1868, the legislature went into joint convention for the election of United States senators. Joshua Hill received 110 votes; Joseph E. Brown, 94 votes; and A. H. Stevens, 3 votes, whereupon Mr. Hill was declared elected United States senator for the term ending March 3, 1873.
It is quite probable that Mr. Hill received votes of persons who were not qualified to hold seats in the legislature more than sufficient to constitute his majority and secure his election, but your committee do not propose to investigate that question….Your committee hold that the question involved in this case is not whether persons not entitled to seats in the legislature were received by that body and allowed to vote upon the election of a senator, but whether the body assuming to be the legislature violated the conditions upon which it was allowed to organize by permitting disloyal persons to participate in its proceedings.[7]
Stewart argued, “an examination into the subsequent proceedings of the legislature of Georgia, and the disorganized condition of society in that State, leads your committee to the conclusion that all these violations of law were in pursuance of a common purpose to evade the law and resist the authority of the United States.”[8] Unsurprisingly he concluded:
Wherefore your committee feel called upon to recommend that Mr. Hill be not allowed to take a seat in the Senate for the reason that Georgia is not entitled to representation in Congress, and submit the accompanying resolution.
Resolved, That Joshua Hill, claiming to be senator elect from Georgia, ought not now to be permitted to take a seat in this body.[9]
Georgia would remain unreconstructed.
Rep. John Cessna
The eventual reconstruction of Georgia, however, did not coincide with an end to the application of Section 3 of the 14th Amendment. On May 18, 1870, Rep. John Cessna, from the House Committee on Elections, reported on the contested election of South Carolina’s fourth district. Comparing the candidates, W. D. Simpson and A. S. Wallace, he wrote:
Simpson was the exponent of rebellion – the faithful, tried, and trusted representative of treason in the army and in the councils of the Confederacy. Wallace was one of the few followers of the Union cause in the State of South Carolina. Born and raised in their midst and commanding their respect and esteem as a man, during all the dark days of the rebellion he remained faithful, and is to-day one of the very few natives of South Carolina who can take the test oath.[10]
The report stated, “Mr. Simpson has been declared ineligible, under the fourteenth amendment to the Constitution of the United States, by a resolution of the House”[11] and, it continued,
…that fact having been well known to the voters of the district, and Wallace having received the next highest vote is entitled to the seat; secondly, that in six counties of the district fair elections were prevented by intimidation and fraud, and should be treated as void, and the result ascertained from the elections held in the other counties of the district, which were comparatively orderly and peaceable; and, thirdly, that even if the elections in these six counties should be sustained and regarded as valid, a sufficient number of legal votes in said six counties were offered for said A. S. Wallace and refused, or the voters prevented by violence, intimidation, threats, and murders, from casting their votes as they desired for said Wallace.[12]
Cessna concluded the report writing,
Under any one of the three views here presented Colonel A. S. Wallace is entitled to the seat, and, when all these propositions are united, we consider the claim as conclusively and unanswerably established. The committee, therefore, offer the following resolution:
Resolved, That A. S. Wallace was duly elected a member of the forty-first Congress from the fourth district of South Carolina, and is entitled to the seat he claims in this House.[13]
Nor did the end of the Reconstruction period coincide with the end of the utilization of Section 3 of the 14th Amendment, which not only describes ineligibility for office but also the process of the “removal of disabilities imposed by the Fourteenth Article of the Constitution.”[14] Over thirty years after the 14th Amendment was submitted to the states for ratification, Rep. John Jenkins, from the House Committee on the Judiciary, reported:
John Jenkins
…that it was not intended that this exclusion should be permanent or universal is evidenced by the provision that “Congress may by a vote of two-thirds of each House remove such disability.” The amendment therefore, while it excluded from the rights and privileges named therein certain classes of citizens in the Southern States, left it to the discretion of Congress to remove the disability imposed in any and all cases where it was satisfied that it might be done with safety to the interests of the country.[15]
Jenkins continued, arguing in favor of a blanket removal of the ineligibility imposed by Section 3 of the 14th Amendment:
The committee are satisfied that the survivors of those once engaged in rebellion against this Government are loyal to the Union, and that it would be a fitting act before they all pass away, and while some of them are left, to remove the disability imposed by this amendment.[16]
The report concluded:
Your committee believe that they but voice the sentiment of the people of this nation when they unanimously say, let the disability be removed.
The safety and interests of the country do not require the disability to be in force.
To remove the same in accordance with the unanimous voice of the people is but a simple act of justice to the South as an expression of confidence by the North in the unquestionable loyalty of the Southern people.[17]
On Aug. 14, 1978, Section 3 of the 14th Amendment was again the subject of a House Report. The House Committee on the Judiciary, “to whom was referred the joint resolution…to restore posthumously full rights of citizenship to Jefferson F. Davis,”[18] began its report acknowledging the need for Congressional action:
Jefferson Davis was one of those who was legally disabled by this provision, because of his oaths of office before the Civil War, to support the Constitution, and his subsequent position as President of the Confederacy.
On Christmas Day, December 25, 1868, President Andrew Johnson issued a complete and unconditional amnesty and pardon to all Confederate partisans for the offense of treason against the United States. This pardon, however, could not remove the disability imposed by the 14th amendment because that amendment, which was adopted on July 2, 1968 [sic 1868], states that the disability which section 3 imposes may only be removed by a vote of two-thirds of both Houses of Congress.[19]
The report also noted the inapplicability in Davis’s case of the earlier blanket removal of the disability:
The act of June 6, 1898…unconditionally removed the disability imposed by the 14th amendment from all persons affected by it. However, the legislative history of that law indicates that it was not intended to have any posthumous effect, but was intended to remove the disability as to those who engaged in the rebellion “before they all passed away.” Therefore, Jefferson Davis was not affected by that 1898 act.[20]
Hon. Elizabeth Holtzman
The final status of Jefferson Davis’s citizenship notwithstanding, those researching additional invocations of the 14th Amendment and its restorative powers will be interested in the “Supplemental View of Hon. Elizabeth Holtzman” attached to this report. She argues, in part:
Although it is highly unlikely that he will have any use for it, I do not oppose restoring citizenship to Jefferson Davis.
Nonetheless, I believe this resolution…raises an issue of misplaced priorities. Approximately 5,000 Americans gave up their nationality because of their strong opposition to American participation in the Vietnam war. We should certainly permit them to regain their citizenship at the same time that we restore citizenship to a man who has been dead for nearly 100 years. We ought to be as concerned with the living as we are with the dead.
The proponents of this resolution honor Mr. Davis for following the dictates of his conscience and renouncing his allegiance to the United States in favor of the Confederacy. The young Americans who gave up their citizenship because of the Vietnam war were equally acting out of conscience and should be entitled to the same understanding now shown to the ex-President of the Confederacy.[21]
Bibliography
Legislature of Georgia. Memorial of the members of the Legislature of Georgia and others, relative to the illegal organization of that body under the reconstruction acts. December 8, 1868. 40th Congress, 3rd Session, Serial Set Vol. No. 1385, Session Vol. No.1, H.Misc.Doc. 6, House Document (Miscellaneous)
The Committee on the Judiciary, to whom were referred the credentials of Joshua Hill, claiming to be senator elect from Georgia, beg leave to submit the following report. January 25, 1869. 40th Congress, 3rd Session, Set Vol. No. 1362, Session Vol. No.1, S.Rpt. 192, Senate Report,
A.S. Wallace vs. W.D. Simpson. May 18, 1870. 41st Congress, 2nd Session, Serial Set Vol. No. 1437, Session Vol. No.2, H.Rpt. 71, House Report
Removal of disabilities imposed by the Fourteenth Article of the Constitution. May 24, 1898. 55th Congress, 2nd Session, Serial Set Vol. No. 3721, Session Vol. No.5, H.Rpt. 1407, House Report
Restoring posthumously full rights of citizenship to Jefferson F. Davis. August 14, 1978. 95th Congress, 2nd Session, Serial Set Vol. No. 13201-12, Session Vol. No.1-12, H.Rpt. 1488, House Report
[1] Legislature of Georgia. Memorial of the members of the Legislature of Georgia and others, relative to the illegal organization of that body under the reconstruction acts. December, p. 1.
[3] The Committee on the Judiciary, to whom were referred the credentials of Joshua Hill, claiming to be senator elect from Georgia, beg leave to submit the following report. January 25, 1869. 40th Congress, 3rd Session, Set Vol. No. 1362, Session Vol. No.1, S.Rpt. 192, Senate Report, p. 7.
[5] Legislature of Georgia. Memorial of the members of the Legislature of Georgia and others, relative to the illegal organization of that body under the reconstruction acts. December, p. 1.
[10] A.S. Wallace vs. W.D. Simpson. May 18, 1870. 41st Congress, 2nd Session, Serial Set Vol. No. 1437, Session Vol. No.2, H.Rpt. 71, House Report, p. 12.
[11] A.S. Wallace vs. W.D. Simpson. May 18, 1870. 41st Congress, 2nd Session, Serial Set Vol. No. 1437, Session Vol. No.2, H.Rpt. 71, House Report, p. 1.
[12] A.S. Wallace vs. W.D. Simpson. May 18, 1870. 41st Congress, 2nd Session, Serial Set Vol. No. 1437, Session Vol. No.2, H.Rpt. 71, House Report, p. 1.
[14] Removal of disabilities imposed by the Fourteenth Article of the Constitution. May 24, 1898. 55th Congress, 2nd Session, Serial Set Vol. No. 3721, Session Vol. No.5, H.Rpt. 1407, House Report, p. 1.
[18] Restoring posthumously full rights of citizenship to Jefferson F. Davis. August 14, 1978. 95th Congress, 2nd Session, Serial Set Vol. No. 13201-12, Session Vol. No.1-12, H.Rpt. 1488, House Report, p. 1.
