The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1871-08-30
Terms, by Mail, in Advance
Does the Fourteenth Amendment
Exclude the Disqualified from n
state Legislature

The following letter from j. R.
Tucker, Esq, formerly Attorney Gen
eral Of Virginia, will be found inter
esting. In his opinion the fourteenth
amendment does not apply to members
Of the General Assembly.
"WIScHEsrER, August %, 1871.
E. II. 7idbaN, Esq:
Dear Sir:-The question OF the ef-
feet of the fourteenth amendment of the
Federal Constitution upon the eligibility
of the members Of the next General As
sembly Of Virginia, upon which you
desire my opinion, is one which natu-
rally interests the public mind at this
time. And although am withdrawn
from public affairs, yet as you and
others have assured me that my views
upon thd question will have some infu.
ence witty those amongst whom | passed
so many years Of my early manhood, l
see no rjason why | should not give
them at your request, though have
only timh to indicate and not satisfac-
torily to, develope fully my reasons for
them.
Taking, for the purpose Of this let
ter, the 18th amendment as a part Of
the Fedd-al Constitution, it is to be con-
strued il connection with all other
parts of the Constitution. and in the
mode wi ,cn is prescribed by the i'm
portant ia and 10Th amendments. The
10th au endment provides that the
powers lot delegated to the United
States b4 the Constitution, nor pr0hi6i-
ted By it p the States, are ressrved to the
States re 'pectively, or to the people,"
The LIN amendment, in so tar as it
restraints the power OF the States in the
appointment OF its own officers, and in
the constitution of its own government,
is a prohibitation upon State power,
and trenches upon the reserved rights
OF tie States. 1t needs no argument to
show that such a limitation upon the
autonomy of the State"-as the SUI
preme Court calls it in Texas vs.. White
that is, upon its right to regulate its
internal concerns, is foreign TO the
main purpose of the Constitution, and
should not be extended by construction
beyond the meaning Of the terms used
in the prohibitory clause, but should be
restrained so as to carry out the clause
fairly, but to 60 no farther than the
terms require.
The third section Of the fourteenth
amendment is in these words:
mo person shall be a Senator or
Representative in Congress, or Elector
of President or Vice-President, or hold
anv office, civil or military, under the
United States, or under any State, who,
having previously taken an oath as a
member of Congress, or as an officer OF
the United States, or as a member OF
any State Legislature, or as an execu-
tive or judicial officer Of any State, to
support the Constitution OF the United
States, shall have engaged in insurrec-
ton or rebellion against the same.
The words descriptive Of the men who
are disabled as to Office aud public trust
indicate four classes:
|. Members OF Congress.
.. Officers of the United States.
3. Members of State Legislatures.
t. Executive or judicial officers OF
States.
1t will be perceived that the trainers
of this article distinguish between Leg
islators Estate or FederaD and officers
Estate or FederaD. The word officer is
never applied to Legislature-but only
those who are Legislators.
The third class disabled are legisla-
tors of the State-and correspond to
the first class, who are Federal legs
lators.
When we turn now to the positions,
| for which these classes of men are dis
abled, we find there are four classes OF
such positions:
|. Members o. Congress.
>. Elector for President and Vice
President.
3. Civil or military officer under
United States.
4. Civil or military officer under a
State.
1t is obvious that the question you
PROFOUND is reduced to this: Is State
legislator under the fourth class? Is
ne a civil or military officer under a
State?
The trainers Of this amendment in
this classification make the distinction
already referred to between Federal
legislators and Federal officers, civil
and military Itwould violate all rules
of construction to suppose they meant
Federal legislators when they used the
words civil and military officers under
the United States" If they did so
mean, they are guilty Of needless tau
tology. The use of words making this
plain distinction compels the conclu-
sion that, within the view Of this amend
ment, a member OF Congress is NOT a
civil or military officer under the United
States any more than an elector, who is
named in the second class. The dis
tinction is palpable, and cannot be dis
regarded. Whatever other people may
say or think about it, this amendment,
as self-interpreter, puts the Federal
legislator out of the class OF civil oth'
GERS of the United States.
WHY this Distinction No reason
can be assigned except that the legIs-
lator is different in nature from the
civil officer. AS legislator he is not an
officer. He ia part of the chief depart
mept of the Government itself. He is
not under the United States, but men,
Der of its great legislative organism,
part Of the supreme power OF the united
States, without which it would cease to
he This officer Is a minister-he the
legislator is a maker of the law; The
officer is appointed and acts under the
law: the legislator is the delegate OF that
nonnlar will which calls the law into