John Marshall Harlan on Section Three of the Fourteenth Amendment

Gerard N. Magliocca

How did John Marshall Harlan understand Section Three? And was his view public knowledge during Reconstruction? These were both unanswered questions until now.

I have found a letter that Harlan wrote on December 1, 1868 in support of the Section Three amnesty petition of Philip Lee of Kentucky. The letter was reprinted in full in the Congressional Globe in February 1869. The citation is Cong. Globe, 40th Cong., 3rd Sess. 1263 (1869). Here is a link.   

In the letter, Harlan explains that Lee was elected in August 1868 as a state attorney and now holds that position. Lee was a state official before the Civil War, swore an oath to support the Constitution in those positions, but then served in the Confederate Army as a lieutenant colonel. 

Harlan says that Lee's "case is, therefore, embraced by the Fourteenth Amendment of the Federal Constitution" unless the positions that he held before the war were not deemed offices under state law. As a result, Lee "desires the passage of an act of Congress which will enable him to hold and exercise the duties of the office to which he was recently elected, without any question as to his right to do so under the Fourteenth Amendment." The rest of the letter praises Lee and says that he deserves a waiver. Lee did get amnesty from Congress, though not until December 1869.

What is the most important takeaway here? The answer is that John Marshall Harlan must have thought that Section Three applied of its own force. No Act of Congress enforced Section Three in Kentucky until 1870. And Harlan contemplated that a state court would (in the absence of congressional amnesty) have to determine whether Lee's positions prior to the Civil War were offices under state law and thus also under Section Three. This issue was similar to what was being adjudicated in North Carolina and Louisiana in the period immediately following the Fourteenth Amendment's ratification.