Sunday, February 18, 2024

Was Griffin’s Case the Backdrop Against Which Congress Legislated the Enforcement Act of 1870?

Guest Blogger

Samarth Desai

Probably not, considering that Congress had already drafted every word of the relevant provisions a month before Griffin’s Case was decided.

Here are the key points:

1.      It’s true that three members of Congress referenced Griffin’s Case in 1869–70. (Only one of these references was made in debate over the Enforcement Act.)

2.      But the Enforcement Act provisions enforcing Section 3 had already been drafted by April 1869, one month before Griffin’s Case was issued. The language of the quo warranto provision, in particular, did not change one jot or tittle after April 1869.

3.      Senator Jacob Howard made clear that he did not think the Enforcement Act was necessary to execute Section 3, but that he would vote for it because it provided a convenient mechanism of enforcement.

4.      Broadly, members of Congress understood the Enforcement Act as an additional, rather than exclusive, mechanism of enforcement and deterrence. They supported the Enforcement Act because they were dissatisfied with the results of leaving Section 3 enforcement solely up to the states.

5.      Again and again throughout 1869 and 1870, members of Congress proposed and enacted amnesty bills and received countless amnesty petitions, including the very week before the Enforcement Act’s passage—which they presumably would not have done had they accepted Griffin’s Case’s determination that Section 3 was not self-executing. (Add to this the powerful structural argument that, if Section 3 is not self-executing, a majority blocking enabling legislation could effect what the text requires two-thirds to accomplish.)

6.      Structurally and functionally, it seems to make little sense that Congress would have barred state enforcement of Section 3 and given exclusive enforcement power to district attorneys. State officials knew more about the backgrounds and past dark deeds of candidates for state office than federal officials did, and state enforcement of Section 3 would reinforce federal constitutional supremacy and promote the reintegration of rebel states back into the national Union.

7.      Intratextually, the Enforcement Act enforced not only Section 3, but also Section 1 of the Fourteenth Amendment and the Fifteenth Amendment, both of which are self-executing.

8.      All this, if right, betrays a deep irony: The drafters of the Enforcement Act, dismayed at states’ lack of respect for Section 3, would have been all too happy to see a state faithfully enforcing Section 3 today. But were the Supreme Court to rely on the Enforcement Act to prevent a state from enforcing Section 3, it would betray the statute’s purposes and upend the expectations of its drafters: The federal government would be obstructing a state’s enforcement of Section 3.

Samarth Desai is a first-year law student at Yale Law School. You can reach him by e-mail at


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