Monday, March 04, 2024

Two Other Quick Takes on the Opinion

Gerard N. Magliocca

First, the majority says that each House of Congress could (and did) exclude members-elect on Section 3 grounds during Reconstruction. Thus, the opinion (I think) cannot be read to say that exclusion can occur only through an Act of Congress when a national official is involved. No Act of Congress was involved in those exclusions by the House and Senate.

Second, Congress gave amnesty in 1868 to Roderick Butler, a member-elect to the House from Tennessee, so that he could be seated. No Act of Congress was in place at that time to enforce Section 3. Under the majority's theory, that amnesty was completely unnecessary.

I may be back with more later . . .

UPDATE: And here I am. The Court at one point describes Section Three as a "penalty," which is incorrect but conveys its negative attitude toward the provision.


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