[This post is co-authored with Professor Seth Barrett Tillman]
On Thursday, February 15, 2024, Professor Mark Graber revealed a submit on Balkinization titled “The Enforcement Act of 1870: Disqualification Myths and Realities.” Graber accuses Trump’s legal professionals of “fabrication” and “mythmaking” regarding Griffin’s Case and the Enforcement Act of 1870. He writes that Trump’s legal professionals “claim[ed] that Griffin’s Case inspired the Enforcement Act of 1870.”
- “Donald Trump’s lawyers engaged in mythmaking when in their briefs and in oral argument they insisted that Congress was responding to Chief Justice Salmon Chase’s claim in Griffin’s Case (1869) that constitutional disqualification was not self-executing, that no person could be disqualified from office in the absence of federal legislation.” (emphasis added).
- “The Trumpian claim that Griffin’s Case inspired the Enforcement Act of 1870 is a fabrication.” (emphasis added).
- “The only evidence Trump and his lawyers have that Griffin’s Case influenced the Enforcement Act of 1870 is that Griffin’s Case was decided in 1869, the year before the Enforcement Act was passed.” (emphasis added).
In truth, Trump’s lawyer, Jonathan Mitchell, made narrower claims. Mitchell mentioned:
- “Griffin’s Case provided the backdrop against which Congress legislated the Enforcement Act of 1870 when it first provided an enforcement mechanism for Section 3.” Trans. at 12 (emphasis added).
- “Congress relied on Griffin’s Case when it enacted the Enforcement Act of 1870.” Trans. at 13 (emphasis added).
- “Congress took up the invitation provided by Griffin’s Case and established writs of quo warranto in the 1870 Enforcement Act.” Trans. at 14 (emphasis added).
And Justice Kavanaugh likewise made a comparatively slim declare as a part of the liquidation argument. He mentioned that Griffin’s Case was a “precedent” that was “reinforced because Congress itself relies on that precedent in the Enforcement Act of 1870 and [Griffin’s Case] forms the backdrop against which Congress does legislate.”
We expect the positions put ahead by Justice Kavanaugh and Jonathan Mitchell had been considerably appropriate. Professor Will Baude and Professor Michael Stokes Paulsen, to their credit score, made some extent alongside the identical strains. They wrote, “Congress may have been responding to the decision in Griffin’s Case (wrongly) holding that such legislation was required for Section Three to have operative legal effect.” Baude & Paulsen, The Sweep and Drive of Part 3, at 20 n.55 (emphasis added). We too made an identical level. Blackman & Tillman, Sweeping and Forcing, at 442-43.We agree that Congress was responding to Griffin’s Case, however we, in contrast to Baude and Paulsen, keep Griffin’s Case was rightly determined.
On this submit, we intend to indicate that Graber’s claims don’t stand up to scrutiny. To make our case, we’ll stroll by the overlapping chronologies of Griffin’s Case and the Enforcement Act of 1870. (This submit will presume the reader already has some familiarity with the information of Griffin’s Case and its posture and the overall historical past of Reconstruction.)
Late 1868—Decide Underwood and Griffin’s Case
Decide Underwood was the US District choose for the District of Virginia. In 1868, Decide Underwood held court docket in Richmond, Virginia. He presided over Griffin’s Case, which was a habeas corpus continuing, that’s, a collateral problem to a state court docket conviction. See Native Issues, Richmond Each day Dispatch (11/12/1868) at 1. On December 7, 1868, Decide Underwood dominated for Griffin, holding that Part 3 could possibly be enforced in federal court docket with out federal enforcement laws. Richmond Each day Dispatch (12/8/1868) at 1. That call would show to be controversial. On the time, a newspaper from Staunton, Virginia noticed that Underwood’s judgment was “immediately” appealed, observing that “we feel certain [it] will be reversed.” The Caesar Griffin Case, Staunton Spectator (12/15/1868) at 2. The Spectator‘s prediction was solely appropriate.
March and April 1869—Senate Invoice 114
Because the Griffin’s Case attraction progressed, the primary session of the forty first Congress continued. On March 11, 1869, Senator Orris S. Ferry of Connecticut launched Senate Invoice No. 114, and it was referred to the Judiciary Committee. Cong. Globe, forty first Cong., 1st Sess., 47. On March 15, 1869, Senator Lyman Trumbull of Illinois reported a number of payments from the Judiciary Committee, together with Senate Invoice No. 114. Cong. Globe, forty first Cong., 1st Sess., 62. On April 8, 1869—two days earlier than the primary session concluded—Senator Trumbull moved for the “consideration of Senate Bill No. 114.” Cong. Globe, forty first Cong., 1st Sess., 625. The Senate thought of the invoice “in Committee of the Whole.” Id. The primary two sections supplied:
Sec. 1. And be it additional enacted, That each time any particular person shall maintain workplace, besides as a member of Congress or of some State legislature, opposite to the provisions of the third part of the fourteenth article of modification of the Structure of the US, it shall be the obligation of the district legal professional of the US for the district through which such particular person shall maintain workplace, as aforesaid, to proceed towards such particular person, by writ of quo warranto, returnable to the circuit or district court docket of the US in such district, and to prosecute the identical to the removing of such particular person from workplace; and any writ of quo warranto so introduced, as aforesaid, shall take priority of all different instances on the docket of the court docket to which it’s made returnable, and shall not be continued except for trigger proved to the satisfaction of the court docket.
Sec. 2. And be it additional enacted. That any one that shall hereafter knowingly settle for or maintain any workplace below the US, or any State to which he’s ineligible below the third part of the fourteenth article of modification of the Structure of the US, or who shall try to carry or train the duties of any such workplace, shall be deemed responsible of a misdemeanor towards the US, and, upon conviction thereof earlier than the circuit or district court docket of the US, shall be imprisoned not multiple 12 months, or fined not exceeding $1,000 and shall without end be disqualified to carry any workplace of honor, belief, or revenue below the US or any state. (emphasis added).
The second part expressly imposed a everlasting statutory disqualification from holding “any office . . . under the United States or any state” following a prison conviction. Graber and others have argued that Part 3, by itself pressure, would disqualify folks from holding workplace. This invoice means that an extra course of was required earlier than an individual could possibly be disqualified—a prison conviction. We confer with this component because the “criminal disqualification provision.” The invoice additionally didn’t impose a disqualification from serving as a member of Congress or a presidential elector—the opposite disqualified positions which can be expressly enumerated in Part 3. As we learn issues, Trumbull was not in search of to train the complete sweep of authority supplied for by Part 3. The invoice would not disqualify convicted defendants from holding seats in Congress or from being presidential electors. It solely utilized to (in our view) appointed positions within the federal authorities and sure state positions. And since this Senate Invoice No. 114 disqualification was a prison statutory penalty, it may solely be relieved by presidential clemency, and never by Congressional amnesty below Part 3.
Senator Allen Thurman of Ohio didn’t object to Part 1’s quo warranto provision, which he mentioned was reported from the Judiciary Committee “with no amendment of any consequence.” (The sooner model may be discovered right here.) However he moved to strike the second part. Id. at 626. He thought it was harsh to incarcerate an individual who was holding workplace in violation of Part 3 of the Fourteenth Modification. Furthermore, Congress couldn’t relieve an individual of the statutory incapacity below this invoice. Senator Garrett Davis of Kentucky likewise objected to the penal nature of the second part of the invoice. Id. at 627.
Trumbull addressed these considerations. He mentioned:
I belief the second part [that is, the criminal disqualification provision] is not going to be stricken out. This part disqualifies no one. It’s the fourteenth modification that forestalls an individual from holding workplace. It declares sure lessons of individuals ineligible to workplace, being those that having as soon as taken an oath to assist the Structure of the US, afterward went into rebel towards the Authorities of the US. However however that constitutional provision we all know that lots of of males are holding workplace who’re disqualified by the Structure. The Structure supplies no means for imposing itself, and that is merely a invoice to present impact to the basic regulation embraced within the Structure. The Senator from Ohio says it supplies for ever afterward disqualifying these individuals from holding workplace. That’s nothing greater than the Structure of the US has accomplished. That Structure says that no particular person embraced throughout the lessons specified shall maintain any workplace. This invoice does no extra. [Id. at 626 (emphasis added).]
After a query, Trumbull continued his clarification. He acknowledged:
Some statute is definitely necessary to implement the constitutional provision; and the punishment to be prescribed is left solely within the discretion of the court docket, besides as to the disqualification which is put upon the get together convicted. The primary part of the invoice will not be objected to by the Senator from Ohio, and the second part is simply cumulative. It’s to afford a extra environment friendly and speedy treatment to forestall individuals from holding workplace who usually are not entitled to take workplace below the Structure of the US. It should intervene with none however the responsible. The harmless won’t ever be prejudiced by it. [Id. at 627 (emphasis added)].
This colloquy was reported in newspapers. See Remarks of A.G. Thurman, The Hancock (Ohio) Courier (5/20/1869) at 1. (Once more, this report in an Ohio newspaper isn’t any shock: Thurman was an Ohio senator.)
It isn’t solely clear how Trumbull used the phrase “necessary.” Does Trumbull’s use of “necessary” confer with necessary within the sense that the Structure required such laws to implement Part 3 of the Fourteenth Modification? Or does Trumbull’s use of necessary confer with laws that might be an acceptable and efficient means to hold out Part 3? We expect the higher studying of Trumbull’s statements throughout debate helps the previous studying of “necessary.” That’s, Part 3 requires federal enforcement laws. We acknowledge that a lot ink has been spilled concerning the that means of “necessary” within the Needed and Correct Clause: Does it confer with strict necessity or mere comfort?
Baude and Paulsen take a opposite view. They argue that the latter studying is definitely appropriate. They write, “Trumbull was making clear that Section Three was already a self-executing requirement of constitutional law. Legislation was not necessary in order to trigger a person’s disqualification from office.” We see no foundation for his or her self-proclaimed confidence in deciphering the chilly congressional file. Though Trumbull acknowledged that Part imposes an summary disqualification, he expressly acknowledged that Part 3 “provides no means for enforcing itself.” Thus Trumbull’s invoice was not an further means to implement Part 3, the invoice was the solely means to implement Part 3. And Trumbull proposed two strategies to implement Part 3: a civil quo warranto process and a prison disqualification provision. Absent these provisions, or different federal statutes, a disqualified particular person would stay in workplace. It’s on this sense that Part 3 will not be self-executing, and that was Trumbull’s main level.
After Trumbull spoke, Senator Jacob Howard of Michigan entered the talk. Howard didn’t assume this provision was necessary. Howard mentioned he would assist the primary part of Senate Invoice 114, “although I entertain very serious doubts of the necessity for it.” Cong. Globe, forty first Cong., 1st Sess., 628 (emphasis added). Howard defined {that a} disqualified particular person “is actually out of office by virtue of that clause of the Constitution ….” Id. We perceive that the Colorado voters, in addition to Baude and Paulsen, disagree with Howard’s declare. They assert that the incapacity attaches instantly, however the particular person stays in workplace till eliminated, and any of his actions could be saved by the de facto officer doctrine.
Furthermore, Howard appears to know Trumbull as utilizing necessary to imply strictly obligatory. Howard means that this laws will not be wanted in any respect, since an individual is routinely disqualified from workplace. It’s on this sense that Howard makes use of the phrase “necessity.” Accordingly, Samarth Desai, a Yale regulation pupil and analysis assistant of Professor Akhil Amar, described Howard’s use of necessity as offering a “convenient mechanism of enforcement,” along with the self-executing character of Part 3. Right here, we expect Howard was rejecting a non-self-executing understanding of Part 3. Had been Trumbull merely speaking about an efficient means to implement Part 3, Howard wouldn’t be in disagreement with Trumbull. Our view is that Howard disagreed with Trumbull. This disagreement demonstrates that there was a variety of views on whether or not Part 3 required federal enforcement laws.
Graber quotes Howard for the Part 3 is self-executing place, however Graber doesn’t point out that Howard’s remarks got here earlier than Chief Justice Chase’s determination. Graber’s submit doesn’t quote Trumbull’s opposite remarks, which appeared on the web page earlier than Howard’s remarks. One sees that Graber’s perspective of the congressional debates is one-sided.
No additional substantial motion was taken on Senate Invoice 114 earlier than the primary session concluded on April 10, 1869. See Index to the Congressional Globe, First Session Forty-First Congress, Historical past of Payments and Resolutions: Senate Payments, iii, vi.
Graber wrote, “The provisions in the Enforcement Act relevant to constitutional disqualification were introduced in the Senate on April 8, 1869. Griffin’s Case was decided more than a month later.” This assertion fails to offer the reader with the complete context. The invoice debated on April 8, 1869, was by no means enacted when the session concluded. As we’ll clarify under, Senate Invoice 114 was not what grew to become generally known as the Enforcement Act of 1870. As an alternative, the invoice which grew to become the Enforcement Act was launched after Griffin’s Case. In brief, earlier than Griffin’s Case was determined, the primary session of the forty first Congress failed to enact the quo warranto provision in Senate Invoice 114. And at the moment, there was restricted debate on the subject. Nonetheless, within the interregnum between the primary and second session of the forty first Congress, Chase determined Griffin’s Case. Solely after Griffin’s Case was determined, did the second session of the forty first Congress, having considerably the identical membership because the prior session, enact the quo warranto provision in a distinct invoice. And there was debate on different enforcement payments about whether or not Part 3 was self-executing and that debate expressly referenced Chase and Griffin’s Case. And this needs to be no shock. Griffin’s Case was not a state secret; it was extensively reported within the newspapers of the day. Contra Graber, as will likely be proven under, that is some good proof that the Enforcement Act, and its quo warranto provision, was a response to Griffin’s Case.
Could 1869—Griffin’s Case
On Could 1, 1869, Chief Justice Chase “declared himself ready to try the Caesar Griffin case.” Caesar Griffin’s Case, Richmond Each day Dispatch (5/1/1869) at 1. The Dispatch noticed that “Mr. Chase has his opinion prepared in the case, and whether or not he will postpone is a matter of considerable doubt.” 9 days later, on or about Could 10, 1869, Chief Justice Chase issued his determination in Griffin’s Case. Chief Justice Chase’s Opinion within the Caesar Griffin Case, Richmond Each day Dispatch (5/11/1869) at 1.
Chase’s opinion concluded, “To accomplish this ascertainment [under Section 3] and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress.” (emphases added) We have no idea if Chase had seen Trumbull’s feedback, however his holding is in line with the strict necessity studying of Trumbull’s remarks. Will Baude and Michael Stokes Paulsen argue that it’s “simply a factually wrong description of the legislative history to say that . . . Trumbull’s [position], was the same as the one Chief Justice Chase would later adopt in Griffin’s Case.” We disagree for the explanations described above: Trumbull didn’t view Part 3 as self-executing in any sensible sense, and it was from that sensible perspective that Chase had examined the self-execution problem.
Within the aftermath of Griffin’s Case, northern and southern newspapers alike praised Chase’s determination. Blackman & Tillman, Sweeping and Forcing, at 478-79. One such newspaper expressly noticed “the Fourteenth Amendment is not self-enforcing, and needs further legislation of Congress to enforce it.” Essential Determination of Chief Justice Chase—the Eligibility of Virginia State Officers Sustained—Decide Underwood’s Determination Reversed, New York Herald (5/11/1869) at 7. After 1869, and till circa 2020, Griffin’s Case was cited by the U.S. Supreme Court docket and by many different federal and state courts. Blackman & Tillman, Sweeping and Forcing, at 477-78 (accumulating citations). We all know of no court docket of file that rejected Chase’s holding; we all know of no court docket of file that urged Griffin’s Case‘s holding may or ought be revisited. We all know of no substantial physique of authorized commentary, previous to 2020, that forged doubt on Chase’s handiwork, and we all know of no single article or treatise taking any such place. As not too long ago as 1971, Professor Fairman defended Chase and Griffin’s Case. See Charles Fairman, Reconstruction and Reunion 1864–1888, Half One, at 607 (1971); Blackman & Tillman, Sweeping and Forcing, at 474. Nonetheless, Graber writes: “What Republican commentary existed on Griffin’s Case outside of Congress was quite critical.” He provides no clarification what sources he examined and the way he arrived at this inexact generalization.
December 1869—February 1870—Dialogue of Griffin’s Case
The second session of the forty first Congress started on December 6, 1869. On December 22, 1869, the Home debated a invoice to advertise reconstruction in Georgia. Cong. Globe, Home of Representatives, forty first Cong., second Sess., Appendix 34. Consultant William Lawrence was an Ohio Republican. Lawrence favorably quoted Griffin’s Case, as reported by George Washington Paschal. Id. at 35.
A couple of weeks later, the Home debated a invoice (H.R. No. 783) to readmit Virginia. On January 13, 1870, Consultant Lawrence once more cited Griffin’s Case to justify the necessity for enforcement laws. Cong. Globe, forty first Cong., second Sess., 431: “There is a necessity for such legislation founded on constitutional law. It has been held by the Chief Justice of the United States, in re Caesar Griffin, that section three of the fourteenth amendment does not execute itself; that legislation by Congress is necessary to enforce it.” (emphasis added) We expect Lawrence understood “necessary” to imply that laws was required. Rep. Lawrence then requested the clerk to learn a passage from Chase’s determination. The excerpt from Griffin’s Case learn into the file by the clerk included the passage we quoted above: “To accomplish this ascertainment and [e]nsure effective results proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable and these can only be provided for by Congress.” Lawrence continued, quoting Chase, “‘These [federal proceedings] can only be provided for by Congress,’ says the Chief Justice; then it is our duty to do so.” Lawrence defined, “It is our duty to make all laws necessary to enforce its [i.e., Section 3’s] provisions.” Lawrence, a former choose from Ohio, accepted Chase’s reasoning and sought to behave upon it by enacting federal laws to implement Part 3 of the Fourteenth Modification.
The following day, on January 14, 1870, Consultant Hamilton Ward Sr., a New York Republican, referred again to Lawrence’s remarks. Cong. Globe, Home of Representatives, forty first Cong., second Session, 485. Ward, in discussing a associated matter, requested why Congress wanted to prescribe an oath by statute “if it is in the Constitution.” By means of clarification, Ward favorably cited Lawrence’s prior remarks and Griffin’s Case. And he provided not even the slightest trace that he thought the Griffin’s Case was wrongly determined. (Ward would function a New York state trial court docket and appellate choose, and afterwards as New York Legal professional Common.)
On January 17, 1870, the Senate debated the identical invoice–H.R. No. 783–which ruled the readmission of Virginia. Senator Arthur I. Boreman, a West Virginia Republican, mentioned Chase’s determination in Griffin’s Case. (Previous to 1870, Boreman was the first Governor of West Virginia, and he held the place of state court docket trial choose each earlier than and after his senate time period.) Boreman acknowledged:
However, sir, as one more reason, I could say, for the introduction of this modification, we’ve got had referred to as to our consideration by a call of the Chief Justice of the US a truth to which the eye of most members in all probability had not been referred to as earlier than, the truth that the Structure of the US doesn’t execute itself; that this fourteenth modification is not going to execute its personal provisions, which prohibit sure individuals from holding workplace within the nation. Within the opinion of Chief Justice Chase within the case of Caesar Griffin, determined Could 10, 1869, at Richmond, . . . . [Cong. Globe, 41st Cong., 2d Sess., 513 (emphasis added)]
Then Boreman quoted from the identical passage in Chase’s determination that Lawrence had quoted.
Boreman continued to quote Chase:
I perceive that this determination of the Chief Justice of the US has referred to as the eye of the folks of Virginia to this query, and that if this modification will not be integrated on this invoice [then] officers could also be put in in workplace in Virginia with out trying to the {qualifications} below the third part of the fourteenth modification. It’s to offer towards that contingency that those that assist this modification now advocate it. Let or not it’s remembered, sir, that this modification doesn’t merely apply to the officers who’re already elected, and to the present members of the Legislature, however there are innumerable officers to be elected in Virginia in pursuant of the provisions of their [state] structure. There are their judges of the court docket of appeals; these are their circuit judges; there are their county judges, and all the assorted officers of the State, who could also be inducted into workplace with out regard to the necessities of the fourteenth modification, if some provision of this type will not be integrated on this invoice. [Cong. Globe, 41st Cong., 2d Sess., 513-514]
On January 17, 1870, H.R. No. 783 was amended by Senator Oliver Morton, an Indiana Republican, to incorporate a prison disqualification provision that was similar to the textual content in Senate Invoice 114. This legislative historical past displays that members of Congress responded to Griffin’s Case with sensible laws.
On February 8, 1870, Consultant Lawrence mentioned one other invoice that might implement the Fourteenth Modification, H.R. No. 818. (Congress.gov information model of that invoice right here.) That invoice was launched by Consultant Whittemore of North Carolina on January 17, 1870. Cong. Globe, forty first Cong., second Sess., 519. Lawrence mentioned this invoice “was of great importance, and under a decision of the Chief Justice of the United States is necessary to enforce the amendments to the Constitution.” Cong. Globe, forty first Cong., second Sess., 1161 (emphasis added). Once more, Lawrence’s use of “necessary” right here conforms to that utilized by Chase, and so, obligatory means required, and never only a matter of comfort.
The views of Lawrence, Ward, and Boreman, are in line with a studying of Trumbull’s remarks from April 1869 that Part 3 requires federal enforcement laws. Moreover, Lawrence’s remarks, like these of Trumbull, had been within the context of debate on precise federal enforcement laws for the Fourteenth Modification.
Graber wrote “What Republican commentary existed on Griffin’s Case outside of Congress was quite critical.” In fact there have been feedback inside Congress which can be price discussing. Senator Boreman and Representatives Lawrence and Ward had been all Republicans. We provide these get together affiliations for the advantage of these persuaded by Graber, who persistently rejects the views of any Democrats as a result of they opposed the Fourteenth Modification and different parts of Reconstruction. In our view, get together affiliation counts for little in establishing authentic public that means. What issues (or what should matter) will not be the expectations of any speaker, however the consistency with which a speaker holds a place, the depth of his studying, and, most significantly, the explanations provided to substantiate his view.
Boreman, Lawrence, and Ward didn’t criticize Griffin’s Case in any respect. Our view is that they accepted the premises, logic, and conclusions put ahead by Chase’s opinion. We additionally noticed no pushback towards their positions about Griffin’s Case. (Furthermore, we didn’t see any dialogue of how the Case of Jefferson Davis in any means contradicted Griffin’s Case; that argument didn’t come up till circa 2020) After Could 1869, members of Congress took Chase’s view in Griffin’s Case as the ultimate phrase on self-execution. If there have been dissenters in Congress, neither Graber nor anybody else (so far as we all know) have put these dissents ahead prominently within the literature.
February—Could 1870—The Enforcement Act of 1870
Subsequent, we’ll monitor the legislative historical past of the Enforcement Act of 1870. It’s inconceivable to attract a straight, uninterrupted line between the invoice that Trumbull debated in April 1869 and the invoice that President Grant signed in Could 1870. Relatively, the overwhelming majority of the legislative deliberations occurred after Chase had determined Griffin’s Case. For instance how the method developed, we’ll get into the weeds of the legislative course of within the Home and the Senate.
On February 21, 1870, what would change into the Enforcement Act was launched within the Home by Consultant John Bingham as H.R. No. 1293. Cong. Globe, forty first Cong., second Sess., 1459. (Congress.gov reviews a number of variations of H.R. No. 1293.) Dialogue of the invoice would start within the Home on Could 16, 1870. Cong. Globe, Home of Representatives, forty first Cong., second Sess., 3503. The Home invoice as launched had ten sections; importantly, it didn’t have any quo warranto provision or present for incarceration of those that held public workplace in violation of Part 3 of the Fourteenth Modification. Id. at 3503-3504. In different phrases, Bingham’s invoice did not embrace any provisions analogous to the important thing provisions in Senate Invoice 114.
On April 22, 1870, Senate Invoice 114 was on the calendar, and mentioned on the ground of the Senate. Senators Stewart and Trumbull urged the matter to be taken up. Cong. Globe, forty first Cong, second Sess., 2892. Nonetheless Senator William T. Hamilton of Maryland objected. The Vice President introduced that the invoice would “go over.” Id.
Professor Xi Wang wrote a cautious examine of the drafting historical past of the Enforcement Act of 1870. Xi Wang, The Making of Federal Enforcement Legal guidelines, 1870-1872, 70 Chi.-Kent L. Rev. 1013, 1023-25 (1995). Senate Invoice 810, which might implement the Fifteenth Modification, was launched by Senator George Edmunds of Vermont on April 19, 1870. Cong. Globe, Senate, forty first Cong., second Sess., 2808. (Congress.gov tracks a number of variations of Senate Invoice 810.)
On Could 16, 1870, Senator William Morris Stewart, a Nevada Republican, added to Senate Invoice 810 the 2 key provisions from Senate Invoice 114, together with the Quo Warranto provision and the prison disqualification provision. Id. at 3480. Once more, there was a lot dialogue concerning the prison disqualification penalty for violating Part 3. Id. at 3509. Professor Wang explains “All these Senate bills, including Stewart’s own bill (S. 503), were put aside when the Senate Judiciary Committee decided to bring before the Senate a new bill (S. 810, originally proposed by George F. Edmunds of Vermont on April 19, 1870) for discussion.” Wang, supra at 1023 n.36. Senator Orris Ferry of Connecticut favored the “short, speedy, efficacious” quo warranto treatment, however moved to strike the prison provision. He thought the latter provision was in “defiance of the principles upon which our party rests” by denying a “political right, to this large class of society.” Id. at 3490. In March 1869, Ferry was the Senator who first launched Senate Invoice 114. Evidently Ferry had second ideas concerning the prison disqualification provision. Ferry’s proposal was supported by Senator Hiram Revels of Mississippi, the primary black member of the U.S. Senate. Id. at 3520.
On Could 17, 1870, Senator Stewart moved to strike out the prison disqualification penalty: “and shall forever be disqualified to hold any office of honor, trust, or profit under the United States or any State.” Id. at 3518. Nonetheless, Senator Howard objected to that modification. Id. Stewart urged that when the Senate invoice “shall have been perfected it can be offered as a substitute for the House bill.” Id.
On Could 18, 1870, Senator Stewart did as he mentioned he would do, and provided the Senate invoice with amendments as an alternative to John Bingham’s Home Invoice. The Home invoice didn’t embrace any Quo Warranto provision, however the substitute Senate invoice did embrace the Quo Warranto provision. Id. at 3561. Sections 13 and 14 of the Senate invoice had been copied verbatim from Trumbull’s proposal on the finish of the primary session, together with the prison disqualification penalty. Id. at 3561-62.
The Senate handed the Senate invoice on Could 20, 1870. Id. at 3689, 3690. That model of the Senate invoice eliminated the prison disqualification penalty that imposed a statutory disqualification towards convicted defendants. Id. at 3689. However the Senate invoice retained the opposite prison sanctions for holding an workplace in violation of Part 3: jail time or a wonderful. The Home would go the invoice on Could 27, 1870. Id. at 3884. The Enforcement Act was accredited by President Grant on Could 31, 1870, together with the quo warranto provision.
Sections 14 and 15, as enacted, present:
Sec. 14. And be it additional enacted, That each time any particular person shall individuals maintain workplace, besides as a member of Congress or of some State legislature, opposite to the provisions of the third part of the fourteenth article of modification of the Structure of the US, it shall be the obligation of the of the district legal professional of the US for the district through which such particular person shall maintain workplace, as aforesaid, to proceed towards such particular person, by writ of quo warranto, returnable to the circuit or district court docket of the US in such district, and to prosecute the identical to the removing of such particular person from workplace; and any writ of quo warranto so introduced, as aforesaid, shall take priority of all different instances on the docket of the of the court docket to which it’s made returnable, and shall not be continued except continued except for trigger proved to the satisfaction of the court docket.
Sec. 15. And be it additional enacted, That any one that shall hereafter knowingly settle for or maintain any workplace below the US, or any State to which he’s ineligible below the third part of the fourteenth article of modification of the Structure of the US, or who shall try to carry or train the duties of any such workplace, shall be deemed responsible of a misdemeanor towards the US, and, upon conviction thereof earlier than the circuit or district court docket of the US, shall be imprisoned not multiple 12 months, or fined not exceeding one thousand {dollars}, or each, on the discretion of the court docket.
It’s true that Senator Trumbull mentioned a draft invoice with a quo warranto provision in April 1869, a month earlier than Chase determined Griffin’s Case. And a few dialogue of that invoice, with its quo warranto provision, is in line with an understanding that Part 3 requires enforcement laws. However that place to begin tells solely a small portion of the legislative historical past of the Enforcement Act of 1870. The overwhelming majority of the deliberations on this problem occurred after Griffin’s Case was determined.
Conclusion
In Sweeping and Forcing, we made this commentary about Chase’s opinion:
To place it one other means, Congress responded to Griffin’s Case by passing substantive enforcement laws: simply as Chase thought Congress wanted to do. The Enforcement Act of 1870 was handed a couple of 12 months after Chase issued his Griffin’s Case opinion. Admittedly, particular person members might need had any variety of causes to go this laws. However the important thing cause we advise was not that its members feared Chase was fallacious on the self-execution problem, however that they feared, as a authorized matter, Chase was appropriate. What will we imply by appropriate? Right within the sense that Congress’s members feared that (no less than) 4 different of the eight Supreme Court docket Justices (in workplace in Could 1870) agreed with Chase, together with a considerable variety of judges on the inferior courts. [Blackman & Tillman, Sweeping and Forcing, at 442-43]
We expect this assertion, in addition to the statements made by Justice Kavanaugh and Jonathan Mitchell, is considerably appropriate. By 1870, Congress was legislating towards the backdrop of Griffin’s Case. Three Republican members of Congress particularly cited Chase’s determination as a justification to enact enforcement laws. Senator Trumbull contended that enforcement laws was necessary. Senator Jacob Howard, nevertheless, thought the laws is probably not necessary. However our data of Howard’s views springs from what he mentioned previous to Griffin’s Case being determined. It’s true that previous to Griffin’s Case, there was some disagreement about whether or not laws was strictly required. However after Griffin’s Case, such disagreement is tough to seek out in debates on the Drive Act of 1870.
Graber expenses Trump’s legal professionals with “fabrication” and “mythmaking.” These claims usually are not correct. Graber writes: “What Republican commentary existed on Griffin’s Case outside of Congress was quite critical.” These claims fail to account for Republican members of Congress who had been supportive of Griffin’s Case. Graber asserts, “The provisions in the Enforcement Act relevant to constitutional disqualification were introduced in the Senate on April 8, 1869. Griffin’s Case was decided more than a month later.” The invoice launched on April 8, 1869, was by no means enacted. Relatively, what grew to become the Enforcement Act was launched after Griffin’s Case was determined.
Ultimately, Justice Kavanaugh was appropriate: Chief Justice Chase’s determination in Griffin’s Case “forms the backdrop against which Congress” legislated the Enforcement Act of 1870.