Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-08-18
amendmenfs on vested riphis see ath YER

4 ing In the States. There Is nothing IN
the Constitution as it existed previously
to this amendment that seemed TO look. TO
n such power. The exercise of such a
power to its fullest extent might, think,
be shown TO result in concentrated des-
,, potism.l g., f.....---, -'5-..,...- +,
ii 1t Is true that by the words of the Con-
! stftution it is Congress and the States
E alone that are forbidden to pass bills of
attainder and ex post facto laws; yet if
! the trainers of the Constitution had been
. asked the question, have you left any
! where power to do that which might be
affected by bills of attainder and ex post
facto laws, what would have been the
answer "We have Icut off the power
from the States even in convention of
, their people, we have forbidden it to Con-
gress; what power remains 9'ht2 Would it
have occurred to any one to say it still
rests in the amending power of the,fifth
article. Did not every one then suppose,
and have not all supposed, till the late
exigency, that it had died out from among
freemen and become memory only In
the history of dead despotisms. Bills of
attainder and ex post facto laws were
never, in fact, anything but names for
unbridled exercise of tyranEical wiil-the
law of the Turkish Cadi. Gas. v.E
But this amendment suppose it to be
valid; as it stands it is inert; it needs
laws of Congress for its enforcement
now when these laws are got on the stat
ute book they are found to be bills OF at
tainder and ex post facto laws. How is
this9 Congress is forbidden to pass laws
of this description by the third clause of
/ The ninth section of the fourth article
sill it is said the laws in question are au-
thorized by the fourteenth amendment
and that it is valid amendment. What
are we to say then2 Does the amend
msnt repeal the previous provision? 1t
does not purpOrt to do so. 1t is not an
express repeal either total or partial; it |
| makes no reference to the previous pro- |
vision. If repeal it must be partial, |
only pro tanto, for certainly no one will
be found hardy enough to say that the |
doors have been thrown wide open to |
bills of attainder and ex post facto laws |
But it can be made partial repeal only |
by implication. Now even in the repeal
of one statute by another where it is by |
implication, must be clear and almost in
evitable. How dangerous to apply this |
doctrine of implied repeal to constitu-
tional amendments. A constitutional
amendment is the parent of
many laws and in this case
it becomes the parent of laws
which on their face are in conflict with |
another Constitutional provision. What
is the escape from the difficulty 1t is
simply and easy. 1t is to give the amend
ment only prospective bearing and this
is its true one. do not refer to the /
law in regard to the construction of stat
utes; but whoever chooses to look into |
Blackstone's Commentaries and Dwarris
upon Statutes will find these to be correct
canons of construction: First, That |
statutes are to be so construed as that
they may stand together and not contra
dict each other. Second, That q subse-
quent statute is not to be construed as a
repeal of a former one by implication,
unless the implication be strong and clear.
Third, That where, by one construction
conflict between statutes is to be |
brought about and by another it can be
avoided, the latter construction is to be |
preferred, Fourth, That where retro
spective force given to a statute which |
may be construed prospectively would
operate an injustice, the prospective CON
struction is to be preferred. All of these
canons are sanctioned by decisions of our
own Supreme Court.
These principles, when applied to con-
stitutional provisions, should be given
their most rigorous power. To simplify |
the provisions now under consideration,
l shall state only the necessary parts of it.
'sWhoever, having previously taken an
oath, and shall have engaged in rebellion,
shall not be a Senator" Now suppose, |
at the adoption of this amendment, there
had been no rebellion, these words would |
have full scope upon the future; to make
them necessarily look back the word
Heretofore" should precede the words
Shave engaged" The words of the
amendment are not then necessarily retro |
spective. AS the consequences of so con-
strung them would bring the laws passed |
under the amendment into conflict with |
the provision against ex post facto laws |
in the Constitution, as such construction |
would operate great injustice, and be in |
conflict with our universal retrospection, |
and as the implied repeal is not only clear |
and strong, but from its monstrous conse-
quences, evidently not intended, con- |
clude that the true construction of the |
amendment is prospective only.
know that an argument for the re-
irrespective view is founded upon the de- |
bates in Congress at the time when the |
amendment was proposed. If these can |
be looked to at all upon question of con- |
struction, they amount to nothing except |
that some members, for abundant caution, |
wished to have words inserted clearly to |
repel a retrospective construction, and |
that such insertion was refused.
If, however, the words of the amend |
ment should be held necessarily retro |
spectiye in their meaning, then hold |
that, as argued above, to that extent the
amendment is void for want of authority |
under the amending power of the fifth |
article of the Constitution.
But it is said that, to deny certain |
persons the right of holding Office is not
bill of attainder, nor an ex post factO
law, that it is not punishment for acts
done, but mere declaration that those
having done the acts shall not thereafter
hold office. Now, unfortunately for this
theory, the very question has been, in eff
feet, twice lately before the Supreme
Court of the United States-frst in the
case of Commings VS.. Missouri, 4th
Wallace, PIT, and second, in the case of
ex parte Garland, 4th Wallace, 335 to 3S1.
| In both of these cases it is held that such
legislation is in the nature of bill of at
tainder, and an ex post facto law It is
immaterial that these two decisions were
made-the first upon provision in the
Constitution of Missouri, and the other
upon the act of Congress. They
decide that such o legislation is incom-
petent, because punishment If, then,
my argument be correct, that punishment
can not be inflicted for past Offenses,
pardoned, or prescribed of which the
party had been acquitted under the
amending power of the Constitution any
more than under law, then these cases
| fully apply. The right to hold office is a
| civil right, common to all citizens, and
unless certain persons be excluded as
punishment they cannot be excluded at all.
1t will scarcely be commended that indi-
viduals can be excluded nomiDatiw with
nothing to distinguish them from others.
That all men with black hair or red hair