Fourteenth Amendment Blog Essay

The Fourteenth Amendment is Not a Bill of Attainder

Uncovering the Fundamental Contradictions in Chief Justice Chase’s Argument That Section Three Is Not Self-Executing

On February 8th, 2024, the Supreme Court will hear oral arguments on whether Donald Trump is disqualified from the presidency under Section Three of the Fourteenth Amendment, which states that “[n]o person” who “engaged in insurrection” after swearing to uphold the Constitution “shall . . . hold any office” again. Leaving aside the policy arguments — which are better left to Congress anyway — the best case against former President Trump’s disqualification from the presidency is that Section Three is not self-executing but instead requires prior Congressional action before it takes effect.

Scholarly amici have already brought forward significant historical evidence showing that “[t]he Congress members who framed the Reconstruction Amendments” did intend Section Three “to be self-executing.” However, defenders of Trump’s eligibility point to one potent piece of contemporary evidence on their side: Chief Justice Chase’s 1869 circuit opinion in Griffin’s Case, which ruled Section Three to be non-self-executing. Trump’s 2024 presidential campaign may therefore swing on the persuasive weight the Court grants this one (non-binding) precedent.

This Essay brings new historical evidence to bear against Trump’s reliance on Griffin. Scholars William Baude, Michael Paulsen, and Gerard Magliocca have already pointed out the opinion’s contradiction with Chief Justice Chase’s position from a few months prior in the Case of Davis. There, the Chief Justice reasoned that Jefferson Davis could not be tried for treason under Fifth Amendment Double Jeopardy rules because Section Three had already executed its punishment of officeholding disqualification on Davis for the same crime.

But this new evidence demonstrates how much deeper the conflicts in the Chief Justice’s reasoning go. The basic premise of the case and its non-self-executing argument — that officeholding disqualifications like Section Three are punitive bills of attainder and ex post facto laws contrary to the “spirit” of the Constitution — appears to flatly contradict the position taken by Chief Justice Chase in cases both before and after Griffin on the “exactly similar” constitutional issue of test oath disqualification. 

So, can Griffin be saved from this host of further contradictions? Chief Justice Chase’s personal correspondence does in fact offer two realistic paths to reconciliation, one purely political in its reasoning and another that depends on adding a further legal gloss to Griffin. Yet both paths lead the decision beyond the reach of Trump’s main scholarly defenders, Seth Barrett Tillman and Josh Blackman, and their herculean 100-page effort to rescue Griffin as a precedent against self-execution. Thus, any way we cut it, Griffin does not prevent Colorado and other States from using Section Three to hold our former President accountable for his actions on January 6th, 2021.

So, what happened in Griffin’s Case? Ceasar Griffin was a Black man who refused to step aside for a white woman on the street and then defended himself from a beating by the woman’s son. Virginia prosecuted Griffin in state court for assault with intent to kill, and he was sentenced to prison. Griffin sought and initially received a federal writ of habeas corpus based on the fact that Hugh W. Sheffey, the Virginia judge presiding in his case, had engaged in rebellion and was therefore disqualified from office following the ratification of the Fourteenth Amendment. On appeal, the Chief Justice reversed the award of the writ, denying that the Fourteenth Amendment disqualified the state judge without further Congressional action.

The Chief Justice offered two arguments against the self-execution of Section Three. First, self-execution should be avoided for the negative consequences of removing ex-Confederates from office and possibly voiding official acts made in the roughly ten months since the July 1868 ratification. Not even Tillman and Blackman try to rescue this purely consequentialist claim. Griffin’s leading critics, Baude and Paulsen, put it nicely: “Judges do not to get to rewrite constitutional provisions they find objectionable on policy grounds.”

Second, and more significantly, Chief Justice Chase claimed that by disqualifying ex-officer insurrectionists from holding office, Section 3 was intended to punish the crime of “engag[ing] in the Rebellion.” The Section should therefore be read narrowly given the tension that such quasi-legislative “punishment” has with the “spirit and general purpose” of the pre-existing federal and state Bill of Attainder and Ex Post Facto Clauses. Section Five’s grant of “power to enforce” the Amendment then suggests that we find our limiting construction of Section Three with the requirement that Congress first implement it before any of its disqualification “punishments” take effect. This at least resembles constitutional reasoning, however shaky.

Yet underneath this constitutional reasoning lies a problem, one that exists wholly separately from the clash of Tillman/Blackman v. Magliocca/Baude/Paulsen over the significance of Chief Justice Chase’s contradictory holding in Davis. The more fundamental contradiction is this: Chief Justice Chase repeatedly decided both before and after Griffin that officeholding disqualifications were not punishments in the first place. If they are not punishment, then they have zero conflict with the Constitution’s prohibitions against state and federal bills of attainder and ex post facto laws. And down comes the rickety scaffolding of the Chief Justice’s reasoning against self-execution.

How do we know that Chief Justice Chase contradicted himself on whether officeholding disqualification was punishment? For one, the Chief Justice joined the January 1867 four-vote dissent in the Test Oath Cases. The dissenters denied the five-vote majority’s contention that disqualification for past insurrectionary conduct from state and federal political office, as well as from the pastoral and legal professions, represented “infliction of punishment, against the prohibition of the Constitution[’s]” bill of attainder and ex post facto clauses.

Well, maybe Chief Justice Chase just changed his mind? Not enough to change his vote. Following the death of Justice James M. Wayne in July of 1867, the Test Oath majority lost its ability to make an actual binding precedent out of its claim that officeholding disqualifications were punishment in violation of the Bill of Attainder and Ex Post Facto Clauses. In Blair v. Ridgely, the Missouri Supreme Court treated this claim (correctly) as mere dicta, given that the Test Oath plaintiffs had themselves only been disqualified from legal and pastoral practice, not “political privilege[s]” like the vote — a logic that it then explicitly extended to officeholding disqualifications in State ex rel. Wingate v. Woodson. The Tennessee Supreme Court similarly cabined the Test Oath precedent as it upheld voter disqualifications as constitutional in Ridley v. Sherbrook.

For nearly three years, Chief Justice Chase delayed the decision on these cases from session to session. Finally, on January 31, 1870 — eight months after his Griffin decision finding that Section Three officeholding disqualifications were punitive — Chief Justice Chase’s Court issued a 4-4 deadlock opinion-less decision affirming one of the cases. Thus, Chief Justice Chase and his colleagues from the Test Oath dissent affirmed (albeit without establishing a national precedent) the state supreme courts’ holdings that officeholding and voter disqualifications for past insurrectionary conduct were not punitive.

Well, maybe the Chief Justice understood Section Three disqualification to be somehow essentially different in its punitive character from test oath disqualification? Not according to the Chief Justice Chase of Griffin. That Chief Justice characterized Section Three implementation as directly analogous to Congress’ application of the federal test oath in Virginia and Texas. Indeed, lawmakers of the time knew full well “that the test oath and [Section Three] stand constitutionally upon exactly similar foundations.”

So, is there in fact any kind of underlying consistency to be found in Chief Justice’s reasoning across the disqualification cases? Can Griffin be saved from its apparent contradictions not just with Davis but with the Test Oath Cases and their Ridley, Ridgely, and Woodson progeny? Chief Justice Chase’s personal correspondence suggests two possible throughlines of consistency — one a fundamentally political commitment to states’ rights and the other based (largely) in an actual legal argument.

Evidence for the political throughline arises from two letters written by Chief Justice Chase. The first letter was sent and then published in a leading national newspaper in July of 1868, as the Chief Justice openly negotiated with party leaders for the 1868 Democratic presidential nomination. In this letter, Chief Justice Chase squarely affirmed that, while “[w]hat [he] desire[d] for the Southern States is peace and prosperity, with all disfranchisements and disabilities removed and all rights restored to all citizens,” he also believed that “the practical disposition of the question of suffrage, as well as all other domestic questions, is for the people of the States themselves, not for outsiders.” As he concluded, “[o]n this question I adhere to my old States rights doctrines.”

The Chief Justice’s second letter comes from February of 1870. In it, the Chief Justice explained his continuing defense of the states’ disqualifications in Ridley, Ridgely, and Woodson on these very same “States rights” lines, a year after he blocked the federal courts from ruling the state judge in Griffin disqualified by Section Three: “No doubt the [state] oath is detestable . . . but I thought and still think it safer not to interfere with the right of the State to regulate her own internal concerns.”

Adding a “States rights” gloss to the Chief Justice’s reasoning allows us to reconcile his disqualification decisions. The original 1866-67 Test Oath Cases saw a Congressional test oath used to disqualify an attorney from the federal bar and a state constitutional test oath used to disqualify an attorney and a priest from state professional licensing. None of these cases offended the Chief Justice’s “States rights” sensibilities, with the federal and state governments each attending to their own “questions” and “internal concerns.” Obviously, this was true as well in Ridley, Ridgely, and Woodson.

However, these terms did not apply in either Griffin or Davis. Griffin, after all, centered on the federal District Court’s holding that Section Three of the federal Fourteenth Amendment had disqualified a state judge from office. Chase deemed such disqualification a “punishment” and construed it narrowly against self-execution. Likewise, Davis presented the picture of that same federal Section Three provision disqualifying Jefferson Davis from future federal and state office. Again, Chase deemed this disqualification a “punishment.” But this time he interpreted the provision broadly in favor of self-execution in order to preserve the former president of the Confederacy — the very emblem of “States rights” and the darling “martyr” of Southern Democrats — from a traitor’s trial and federal execution.

So, where a disqualification applied federally against a state, as in Griffin, the Chief Justice would block it. Those terms clearly do not apply in 2024 to Donald Trump, who neither holds nor is seeking state office. Where it was applied by a state, as in two of the three test oath cases as well as Ridley, Ridgely, and Woodson, the Chief Justice would allow it — even though the Constitution’s bars against federal and state bills of attainder and ex post facto laws are identical.

In other words, the Chief Justice Chase’s reasoning was inescapably political. And those politics just happened to align with the party of “States rights” and Jefferson Davis, whose nomination he sought energetically in 1868.

This purely political story makes a great deal of sense. Tillman and Blackman have rushed to defend the Chief Justice from accusations of naked ambition, but the Chief Justice’s overriding devotion to his “presidential aspirations” was obvious and admitted by nearly everyone who knew him, including close friends and colleagues.

However, the Chief Justice’s personal correspondence does offer one other, less purely political possibility for justifying his strange medley of disqualification decisions. In March of 1867, the Chief Justice wrote another federal judge that he thought only officeholding disqualifications that were imposed “as a condition of continuing to exercise an office or profession” were forbidden under the Test Oath Cases’ interpretation of the Bill of Attainder and Ex Post Facto Clauses. So, a disqualification is only unconstitutional where the officeholder’s term began prior to the disqualification’s enactment. “[W]here the appointment [to office] has been made since the [disqualifying] act,” meanwhile, that “act” was not prohibited as a punitive bill of attainder or ex post facto law.

To reconcile Griffin with this reasoning, we would have to find that Section Three only operates punitively in tension with these clauses where it is applied to remove persons from offices already held in 1868. Thus, Chief Justice Chase’s rationale for finding Section Three non-self-executing would not apply to Trump.

As it so happens, the specificities of Chief Justice Chase’s Griffin opinion make a lot more sense with this additional gloss. Again and again, the Chief Justice urges us to “properly b[ear] in mind that the disqualification did not exist at the time that [the state judge in question] became judge.” In fact, “[m]ore than two years had elapsed after the date of his appointment, when the ratification of the fourteenth amendment . . . was officially promulgated . . . on July 28, 1868.” The Chief Justice’s overriding concern was clearly that “in all [the Southern] states all offices had been filled, before the ratification of the amendment, by citizens who, at the time of the ratification, were actively engaged in the performance of their several duties.” It was the removal of these citizens from offices already held that truly bothered the Chief Justice. Whether correct or not on the merits, it is this that appeared to him to truly be “punitive,” as well as to create the main negative “consequences” of voiding official acts made by these sitting officers. But none of this holds true for Trump.

Furthermore, every one of the Chief Justice’s other disqualification decisions — except for the most blatantly political outlier that is the trial of Jefferson Davis — coheres under this reasoning. None of the other cases involved the disqualification of someone from an office that they already held, and the Chief Justice accordingly declined to hold any of these an unconstitutional punishment. Only in Davis did the Chief Justice allow the defendant to claim that his officeholding disqualification was a punishment, despite Davis not actually holding any office.

Why then did the Chief Justice not only allow but positively feed Davis this defense? Because he — and nearly every other political actor that touched this case — wanted to get rid of it! The literature is overwhelmingly clear that the Chief Justice had already spent three years avoiding Jefferson Davis’ trial like the plague. He needed Southern Democrats on his side. Sentencing their former leader to martyrdom would equally condemn his own presidential ambitions.

So, politics does rear its head in this, alternative story too. But rather than condemn the Chief Justice for years of politically directed inconsistency, it only asks that we accept his fundamental lapse in one, uniquely fraught — and uniquely “botched” — case. And that would be only human, even with the least ambitious of judges.

Perhaps we can let Chief Justice Chase off the hook for his mishmash of different holdings on disqualification. But whether we understand Griffin to follow a purely political defense of “States rights” or a narrow legal opposition to the “removal of a judge” from a position they already held, neither interpretation helps Trump’s argument that Section Three does not self-execute.

Our former President remains very much on the hook.