The Enforcement Act of 1870: Disqualification Myths and Realities

Mark Graber

The Enforcement Act of 1870, often known as the First Ku Klux Klan Act, reflected the broad consensus in Congress that states could implement Section Three of the Fourteenth Amendment in the absence of federal legislation.  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.  Rather, both the text of and debate over the Enforcement Act demonstrate that members of Congress thought the measure a perhaps unnecessary supplement to existing state and military enforcement.  Members of the Congress that passed the Enforcement Act of 1870 would have been stunned by claims that insurrectionists could hold any state or federal office unless Congress provided procedures for their disqualification. The events leading up to the Enforcement Act indicate that state officials were empowered to disqualify candidates for federal office and that disqualification could take place before as well as after an election.

The Trumpian claim that Griffin’s Case inspired the Enforcement Act of 1870 is a fabrication.  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.  During the ensuing debate over how to implement constitutional disqualification no member of Congress explicitly or implicitly referred to Griffin’s Case (some discussion did occur in debates over legislation specifically concerned with Virginia).  No representative in Congress explicitly or implicitly referred to any state or federal court decision on disqualification during the debates over the Enforcement Act.  What Republican commentary existed on Griffin’s Case outside of Congress was quite critical. 

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.  The first American professional baseball team, the Cincinnati Red Stockings, played their inaugural season in 1869, the year before the Enforcement Act was passed.  No evidence exists that Griffin’s Case had a greater impact on the Enforcement Act than the Cincinnati Red Stockings.

President Grant’s first annual message is no better candidate for inspiring the provisions in the Enforcement Act that related to constitutional disqualification.  Grant in December 1869 called on Congress to draft legislation that would implement Section Three in such states as Georgia, where many members of the state legislature were holding state legislative office in violation of Section Three. Again, the timing is wrong.  Besides, the Senate Judiciary Committee’s proposal that was eventually incorporated into the Enforcement Act, however, exempted members of Congress and state legislators.  This suggests different problems of implementation moved the Senate Judiciary Committee and Congress.

Members of Congress supported national legislation implementing Section Three because they regarded state efforts to implement constitutional disqualification to be inadequate or ineffective.  Consider the following newspaper reports that diligent research by John Vlahoplus has unearthed.  The Alexandria Gazette on August 1, 1868, reported that “The Radicals in Richmond are dissatisfied with Gen. Stoneman’s course in not removing state officers disqualified by the Fourteenth Amendment, and have appealed to Gen Grant on the subject.” Five months later, on January 6, 1869, the Fall River Daily Evening News reported that Stoneman had become more aggressive and was “silently clearing the Virginia courts of all officers who are disqualified by the fourteenth amendment.”  Senators were aware of and approved removals in the states.  The Cincinnati Daily Enquirer on March 17, 1869, noted a resolution passed by the Senate at the suggestion of General Stoneman “authorizing the retention for thirty days longer of the State of Virginia officers, disqualified by the fourteenth amendment.”  Representatives were less enthusiastic about the pace of disqualification in Virginia. The Galveston News on March 27, 1869, complained about “The refusal of the House to extend 30 days grace to Virginia, in the removal of the public officers who are ineligible to office.  Republican radicals made similar complaints about the adequacy of state implementation in other jurisdictions.  Senator Charles Sumner of Massachusetts on January 14, 1869, introduced an enforcement measure that he claimed was “rendered necessary by the state of affairs in Kentucky, where certain persons disqualified by the fourteenth amendment had assumed to exercise judicial functions.”  In short, before Griffin’s Case, members of Congress debated the pace of disqualification in the states, approved military and state actions disqualifying persons in the absence of federal legislation, but thought state and military enforcement too slow.

Mr. Vlahoplus’s stellar research has also uncovered newspaper reports that expose other myths being propagated by those opposed to disqualification at present.  On the rare occasion before 1872 when disqualified persons obtained federal elected offices, states moved to disqualify without waiting for federal action.  The Baltimore Sun on December 8, 1868, reported that Governor Bullock of Georgia “withheld the certificate of election from Christy,” who had been “elected to represent the sixth district” of Georgia “in Congress” because Chisty “was disqualified by the fourteenth amendment to the constitution.”  Disqualification could occur before or after an election.  The Galveston News on March 27, 1869, pointed out that “The House Committee on Elections have determined not to consider any person a legal contestant for a seat in Congress who is disqualified by the 14^th amendment.”

The Senate Judiciary’s proposal, which after a long and winding road became Sections 14 and 15 of the final Enforcement Act, casts important light on two features of contemporary debate over Section Three.  That proposal declared:

That whenever any person shall hold office, except as a member of Congress or of some State Legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such persons shall hold office as aforesaid to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office. . . .

            SEC. 2 And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State, to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year and fined not exceeding $1000, [and shall forever be disqualified to hold any office or honor, trust, or profit under the United States or any State.”]

The decision to exempt some offices from the Enforcement Act demonstrates that Congress in 1870 thought that legislation was not necessary to implement Section Three.  Governors could refuse to certify the election of disqualified persons to Congress, just as state legislatures could provide procedures for assuring that only qualified persons held elective state offices.  The provision in Section Two criminalizing persons “who shall attempt to hold . . . any such office” indicates that Congress understood Section Three disqualification as encompassing running for office (attempts) as well as holding office.

Senator Lyman Trumbull of Illinois, the sponsor of the Senate bill, provided two powerful arguments for self-execution when justifying the disqualification provisions of the Enforcement Act.  He insisted that constitutional disqualification worked automatically.  “This section disqualifies nobody,” he stated.  “It is the fourteenth amendment that prevents a person from holding office.”  No legislation was necessary to prevent disqualified persons from exercising state or federal power.  Trumbull acknowledged that Section Three needed to be implemented.  He pointed out that “The Constitution provides no means for enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in the Constitution.”  At no point, however, did Trumbull declare that federal legislation was necessary to implement Section Three.  His point was not peculiar to Section Three but is true of every constitutional provision, none of which specify the precise means of implementation. 

Trumbull acknowledged and legitimized past state enforcement.  The problem with such state enforcement was that state efforts were ineffective, not unconstitutional.  Trumbull described his proposal as “afford[ing] a more efficient and speedy remedy to prevent persons from holding office who are not entitled to take office under the Constitution of the United States.”  Trumbull’s proposal merely provided a federal remedy and criminal sanction for violating Section Three.  As the exemption of members of Congress and state legislators made clear, the Enforcement Act was not intended to be the exclusive means of constitutional disqualification.   

Other Republicans were more explicit about enforcing Section Three without congressional legislation.  Senator Jacob Howard of Michigan declared he was willing to support the first section of Trumbull’s proposal even though Howard “entertain[ed] very serious doubts of the necessity for it.”  In his view, the Fourteenth Amendment directly removed persons from office. State and federal courts, Howard indicated, did not need federal legislation to remove persons who held offices unconstitutionally.  Howard declared, “If the person claiming to hold an office is in fact as well as de jure no office, if instead of being in office he is actually out of office by virtue of that clause of the Constitution, then it is somewhat difficult to see the propriety of instituting the proceeding of quo warranto for the purpose, in the language of the first section, of removing him from office.”  Prominent Democrats agreed that the post-Civil War Amendments were self-enforcing.  Senator Casserly of California declared, “The history of the constitutional prohibitions on the powers of the States, including the thirteenth and fourteenth amendments, is that Congress has never felt called on to enact laws to enforce the prohibitions; is that there never was any need for such laws.”

Republicans who enthusiastically supported all the provisions in the Enforcement Act highlighted the superior merits of federal legislation, not the constitutional infirmity of state legislation.  Speaking of federal enforcement more generally, Representative W. Townsend of Pennsylvania stated

The situation of political affairs at the South since the ratification of th[e] Fifteenth Amendment, as manifested in the obstruction to registration of colored voters who are entitled to the ballot, and the attempts to intimidate them from voting, show conclusively that some stringent law is necessary to neutralize the deep-rooted prejudice of the white race there against the negro, and that the only means of the latter to secure his dearest privileges are to be found in national legislation.  This security cannot be obtained through State legislation, for where the laws are made by an oppressive race they will not do justice to the oppressed.  Southern legislation was always hostile to the negro and still remains so.  Southern politicians and mean in power have not yet accepted the situation of affairs, and hence arises the necessity of enacting this law.

Townsend did not think southern legislation unconstitutional.  The problem was effectiveness not legality.

The text and debate over the Enforcement Act highlight how Trump and his lawyers are creating myths designed to confuse effectiveness with constitutionality.  A broad, but hardly universal, consensus existed in Congress after the Fourteenth Amendment was ratified that federal measures implementing all provisions of the post-Civil War Amendments were likely to be more effective than state measures.  That consensus remains.  No party to cases involving the possibility disqualification of Donald Trump disputes claims that congressional action might be more effective and desirable than state action.  Nevertheless, no one in the Reconstruction Congresses thought the absence of federal legislation barred state legislation.  The Enforcement Act of 1870 was intended to supplement state disqualification, not substitute for state action. The absence of federal legislation at present is no more a bar to state disqualification.  Rather, as the Republicans believed in 1870, the solution to inadequate state regulation is national legislation, not Supreme Court efforts to halt the disqualification process.