Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-08-18
POLITICAL DISABILITIES.
A Brief Argument 0n the Validity
and CONSERVATION OF the Third Sec
7 ton of the Fourteenth Amendments
Co thc Constitution of the United

Il u tAC COASGtnbAOA OL inc GIAItc
4 States. og9b rIi33 ICE .efS fcifsu suqs
| II hat the third section of the Ament
mentis asfollows, viz; ''No person sha
be Senator or Representatives. Congress
II or doctor of President or Vice-President
or hold any Office, civil or military, unde
the United States, on under any State, VIII
having previously taken an oath, as
member of Congress, or as anoloffieer o
the United States, or as member of an
State Legislature, or as an executive o
| judicial officer of any State, to support tn
Constitution of the United States, sha
have engaged in the insurrection or rebel
hon against the same, or given aid or com
fort to the enemies thereof. But Congress
may, by vote of two-thirds of eacl
4 House, remove such disability" To thi
| section, as provision to operate pros
1 peetively, there is no objection. But t
| il, as provision to operate retrospective
| IL, there is grave and serious objection
i In this latter view it is an attempt Il
| reach beyond the scope of the amending
power given in the Fifth Article of the
i Constitution of the United States. For IL
this view it undertakes to say that no one
who has done the pc's mentioned in i
shall hold ol,ca r.." ii the punishment
of these acts, pI,, H. TO the adoption OF
this amendment, was not Exclusion from
Office; and, notwithstanding the party
1 committing them may be delivered from
their consequences by prescription under
the act of 1890, and restored to all of his
| rights and privileges by executive pardon.
1 No one will contend that law of Con-
| gress could reach so far. 1t is agreed Oh
| all hands that the provision in the Consti-
| tuition of the United States, Article l,
section 9, clause 3, excludes such power.
The clause referred to is in these words:
/ mo bill of attainder or eX post facte law
shall be passed" But it is commended
that the amending power above referred
TO is without limit and may be used to
the extent and with the construction indi-
Gated above. This proposition cannot, in
my opinion, be sustained
The dogma contained in most of the
State Constitutions, and assumed and adj
mitted in all of them as truism, ''That
all power is inherent in the people, and
that they have right to alter, reform or
abolish the government in such manner
as they may think proper has no rela-
ton to the Cons tuition or Government of
the United States.
The people of the United States cannot
lawfully meet in convention to alter, re-
form or abolish the Government. They
may meet in convention under the fifth
article of the Constitution to propose
amendments to the Constitution, which,
when ratified by three-fourths of the
States, through Legislatures or Conven-
tons, shall become parts of that instru-
meut. The people can only propose, and
they can only propose amendments. This
is not an uprooting or abolishing of pow
er. The people of State may abolish
and reform their government even to the
extent of making despotism or monar-
chy of it. if it were not for the restrain
ing power of the fourth article of the
Constitution of the United States. rr-,5
q Under the amending power of the Fifth
Article of the Constitution of the United
States, all win agree that it is not compe-
tent to establish either monarchy or a
despotism. 1t is not competent to abolish
a State or to incorporate two States to-
gcther-it is not competent in any way to
destroy the structure and basis of Union.
There are, then, limits to the amending
power.
What is an amending power in its ma
ture? Its very name implies limitation.
Under its scope certainly power can not
be exercised which would directly strike
down or indirectly undermine the foun-
dations of the Union structure. As an
illustration: 1t is not competent under
pretense of amending the Constitution, to
insert provision directing and requiring
that certain number of individuals guilty
of no crime, or having been guilty of
crime fer which they have been pardoned,
to be hanged. This would be the asser-
ton of despotic power. Especially would
it be so whilst the provisions in the Con-
stitution still remained in full force, for
bidding bills of attainder and &c post
fdctO laws, under which all men had at
least supposed themselves secure. might,
/ think, here go further and say (though
it is not necessary to my argUunent) that
where a people were living under Con-
stitution forbidding bills of attainder and
eI post fGctO laws, or In other words, az
bitrary action, that no human power, nor
that Of the people in convention assem-
bied could LaWfuLly order man to be
hanged for that which was no crime when
the act was done, or for that crime to
which pardon had been extended. Such
an exercise of power, would be mere
brute force. This, however, is mere
f0TtiOri argument, and if not correct does
not affect the argument upon the lesser,
the amending power. ..-,
4 1t is incompetent under the amending
power to adopt into the Constitution as an
operative amendment what is equivalent
to bill of attainder or an ex post facto
law. 1t is an act of despotism, forbid
den to Congress by the Constitution, and
by the very structure and basis of the
Union which is republican freedom and
protection from arbitrary action, for
hidden to the General Government. The
amending power cannot overlap the
barriers of the nature of the Union.
The question here discussed is not
whether, under the amending power, the
provision against bills of attainder and
ex post facto laws might not be stricken
out of the Constitution and Congress be
left in future to pass such bills in regard
to acts done subsequent to such abroga-
ton, or whether having abrogated this
provision, amendments might not be
adopted into the Constitution to be ope-
rative on acts done subsequent to the
abrogation. Such question might well
bear debate. 1t might well be argued
that to give in any shape power, whether
by amendment or by congressional bill, to
pass such laws, would be an uprooting
process and beyond the competency of the
amending power. 1t might be shown by
history and reference to other countries
that such power is at war with all free
institutions, an instrument of tyranny,
and contrary to the structure of the Fed
eral Constitution. 1t is certain that in
every State, and in the Federal Constitu-
ton, bills of attainder and ex post facto
laws are prohibited. But this is not our
| question. Our question is this: Can an
amendment equivalent to a bill of at
tainder and an ex post facto law be
adopted and become operativein regard to
acts done whilst the provision against
such laws was in full force in the COnsti-
tuition, and where the acts are prescribed
by the act of 1890, and were pardoned
before the amendment was adopted : Sup
pose the party to be affected had been