A Nice Point of Constitutional Law

November 1, 1866


The official language of the proposed constitutional amendment was released and it contains a clause stating anyone who attempted to rebel from the Union or gave aid to those rebelling is disqualified from holding or running for elective office. This clause creates disabilities against many powerful white Southerners.


A Nice Point of Constitutional Law. The following is the language of the third sections of the proposed constitutional amendment: "No person shall be a senator or representative in Congress, elector of president or 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 a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United Staes, shall have engaged in insurrection or rebellion against the same or given aid and comfort to the enemies thereof; but Congress may, by a vote of two-thirds of each House, remove such disability." It will be seen that this section Is framed upon the assumption that neither a member of Congress nor a member of a State Legislature Is an officer. This was done intentionally, to avoid any question which might otherwise have arisen; for if rebels had been excluded only from all "offices," or if only those had been excluded who had been "officers," any man in the South might, In the former case, have been elected to Congress, or In the latter case any old Congressman might have been elected to "office," It being considered, to say the least, very doubtful whether a Congressman or a State legislator is an "officer." That such was the idea of the framers of this section Is so evident from the text that we do not deem it necessary to say more upon this point. Now, that third section Is very sweeping in its provisions for disqualifying "rebels" yet, carefully as it Is worded, it not only allows, but, in consequence of the clear distinction which It draws between members of the Legislature and officers, it provides, that any of the proscribed classes may be elected members of any State Legislature. So that even if it shall ever become part of the Constitution, the election of United States Senators will still remain in the hands of true representatives of the southern people. It is possible, but not probable, that its framers left this feature in it intentionally. Our own attention was called to the subject by one who is in favor of tho ratification of the amendment. Another criticism, which a close examination of the third section has suggested to us, is less important, but may be considered worth making. The language, if construed strictly, would require that the "insurrection or rebellion " spoken of should be against the "Constitution," and that the "enemies " spoken of should be enemies of the Constitution, though Congress meant the word "same" to describe "the United States," and not the "Constitution." As the southern statesmen seceded because the Constitution was violated, and claimed to be its best friends to the last, they would not consider themselves proscribed by this language if the Federal courts should hold that it bears the construction we have put upon it.
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Nat Berry




“A Nice Point of Constitutional Law,” Reconstructing Virginia, accessed March 29, 2023, https://reconstructingvirginia.richmond.edu/items/show/391.