The Use and Misuse of Section Three's "Legislative History:" Part I

[Note:  This is the fifth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first four essays can be found here, here, here, and here.]

The appropriate role of "legislative history" in constitutional interpretation is a subject of ongoing debate.  For originalists – those committed to interpreting and applying the Constitution according to the best evidence of the objective, original public meaning of the words, phrases, and structural logic of the Constitution, taken in context, and accounting for specialized usages or terms of art – the question should be put this way:  what light do the debates or drafting history of a provision, contained in (hopefully reliable) reports shed on the objective meaning of the language of the provision as embodied in the final, adopted constitutional text? (In the case of the original Constitution, some of the most crucial proceedings were "secret" – not publicly reported or available to the ratifying public at the time. This raises special problems which are not present in the case of constitutional amendments which were openly debated on the floor of Congress.) 

Our shared view is that such constitutional legislative history is potentially probative, second-best evidence of original, objective textual meaning. But it is important to always keep in mind that the search is for the objective meaning of the text – the actual language adopted as law – not for the "intent" or "purpose" or "understanding" of some particular person or any collectivity of persons. It is what the people involved wrote down in words, and voted to adopt, that counts – not what they might or might not have "had in mind." So while evidence of the intention or purpose of individuals involved in the drafting process might be relevant to ascertaining the meaning of the text, discovering their intent or purpose is not the ultimate goal.  Legislative history is a potential means to an end: the ultimate goal of getting the objective, original meaning of the words of the text right.

All of this results in several implications or admonitions. First, constitutional legislative history, or imputed "purposes" ostensibly found there, can never properly displace the actual textual meaning.  As we note in The Sweep and Force of Section Three (at 7-11), the language ultimately adopted sometimes overshoots or undershoots (whether deliberately or not) the drafters' supposed intentions or purposes. Second, one must be precise and careful about drawing textual inferences from legislative history – careful not to overweight individual pieces of evidence or idiosyncratic views, and precise in specifying what those views show about the actual text at issue. Third, ambiguity in the legislative history is not ambiguity in the text. The drafters of a position may well have different views, and enact a text to reflect the victory of one side or a compromise between them, or simply because something has to get done. Those involved in the drafting may well deliberately spin or unintentionally misunderstand the details of those choices. But again, it is the single, unified, text and its objective, original meaning that becomes law in our system, not the political machinations that produced it.

In The Sweep and Force of Section Three, we hew closely to these limitations on the use of constitutional legislative history.  On the occasions where we note relevant evidence from drafting history or specific debates, we carefully qualify our observations about the relevant legislative history. Legislative history does not establish textual meaning.  It serves as potentially probative, second-best evidence that can assist in understanding the meaning of the language contained in the text.  It must be handled with care.

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With that preface, we turn to the constitutional legislative history of Section Three itself.  Over the past months since our article was posted, the ensuing debate has included some instructive – but also some rather dubious – uses of constitutional legislative history.  In particular, we must take issue with some serious flaws contained in Professor Kurt Lash's recent writings on this topic, which he has presented in a draft law-review article, titled "The Meaning and Ambiguity of Section Three of the Fourteenth Amendment," and, in a more telescoped form, as an online essay at the Law and Liberty website, titled "The Fourteenth Amendment's Ambiguous Section Three."  Kurt is a friend of ours and we do not wish to sound overly harsh.  But these writings contain serious problems both of history – concerning what the "legislative history" does and does not say – and of law – concerning the way constitutional legislative history is used in legal analysis of the constitutional text. 

We will start by focusing on the former problem here, and take up the latter problem more fully in a subsequent essay. There is a serious problem with Lash's presentation of the legislative history of Section Three itself.  With respect, some of what Lash says the legislative history shows is simply wrong. At best, Lash's presentation is misleading; at worst, it is a serious misrepresentation of what was said.

Lash presents a statement by Thaddeus Stevens, a prominent radical Republican member of the U.S. House Representatives, as appearing to argue that that Section Three of the proposed Fourteenth Amendment was not legally self-executing – that is, that Section Three would not have direct and immediate legal effect as a constitutional rule unless and until Congress adopted further implementing legislation.  If true, this would be relevant to an important legal point of interpretation of Section Three.  One of the propositions of our article, The Sweep and Force of Section Three, is that Section Three is self-executing in the sense that its legal rule does not require congressional legislation in order to have legal effect. (This, we think, is evident from the text, history and structure of Section Three as detailed at length in our original article, including a footnote (59) that cited five typical statements of senators – both proponents and opponents of the substance of Section Three – who all agreed or assumed that Section Three would have immediate consequences, for better or worse.)

But Professor Lash quotes Stevens as saying that Section Three "will not execute itself." That seems like relevant evidence against our conclusion. But with all due respect, Lash's use of this quotation from Thaddeus Stevens is extremely misleading at best. In a nutshell, Lash "mixes and matches" quotations from the legislative history to make it appear that statements by Stevens concerning a different proposal actually referred to the version of Section Three ultimately adopted.

In fact, Stevens was talking about an earlier and much different proposal for a section three of the Fourteenth Amendment that would have denied all persons who had aided or supported the Confederacy of the right to vote, in all federal elections, until 1870. (That is, unlike the real Section Three, it applied to all confederates and not just former office-holders, it applied to voting in federal elections instead of office-holding, and it had a sunset clause.) But as we will explain in a moment, Stevens's comment about effectively enforcing that sweeping requirement throughout the South does not translate to the real Section Three that became law.

First let us present Stevens's comment in broader context (italicizing in bold the words that Professor Lash pulls out of context). Recall that Stevens is arguing in defense of the total voting exclusion he wished to keep in the proposed amendment as section three, even though enforcing the voting ban would require implementing legislation concerning legislative apportionment, voter registration, and other such matters:

The gentleman from Ohio [Mr. BINGHAM] who has just taken his seat thinks it difficult to carry it into execution and he proposes to put it into a bill which the President can veto.  Will my friend tell me how much easier it is to execute it as a law than as a provision of the Constitution?  I say if this amendment prevails you must legislate to carry out many parts of it.  You must legislate for the purpose of ascertaining the basis of representation.  You must legislate for registry such as they have in Maryland.  It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have the right to do.  So that objection falls to the ground.

Gentlemen tell me it is too strong – too strong for what?  Too strong for their stomachs, but not for the people.  Some say it is too lenient.  It is too lenient for my hard heart.  Not only to 1870, but to 18070, every rebel who shed the blood of loyal men should be prevented from exercising any power in this Government.  That, even, would be too mild a punishment for them.

Gentlemen here have said you must not humble these people.  Why not?  Do not they deserve humiliation?  Do not they deserve degradation?  If they do not, who does?  What criminal, what felon deserves it more, sir?  They have not confessed their sins; and He who administers mercy and justice never forgives until the sinner confesses his sins and humbles himself at His footstool.  Why should we forgive any more than He?  (Congressional Globe, 39th Congress, 1st Sess. 2544 (May 10, 1866).)

Again, Stevens was not talking about the version of Section Three we have – the officeholding ban—that was substituted for the original comprehensive ban of voting, several weeks after Stevens made this speech. This is especially important because Stevens's reasons for mentioning enforcement legislation are specific to the version of the proposed amendment he is discussing. A ban on voting might involve a voter "registry." It would be directly connected to "apportionment," which Congress deals with by legislation, and which was also altered in profound ways by Section Two of the Fourteenth Amendment, which required the South to enfranchise its newly-freed black population or else lose the ability to count that population for apportionment purposes. (Indeed, in a recent podcast episode Professor Akhil Amar, who has extremely harsh words for Professor Lash, emphasizes the role of Section Two in this passage even more than we do here.) But the fact that Stevens anticipated Congress's passing legislation dealing with federal voting rights does not tell us about the legal operation of a different proposal that did not directly act upon voters.

To be sure, Lash does accurately state that Stevens's remarks came in a "speech introducing the Joint Committee's draft of the Fourteenth Amendment" – the much different earlier draft.  But he portrays the statement as evidence that Stevens believed that Section Three as finally proposed was not self-executing.  In "The Fourteenth Amendment's Ambiguous Section Three," Lash sets up the statement this way:

Similarly unclear was whether the text automatically disqualified certain persons, or whether Congress would first have to pass enforcement legislation establishing procedures that would preserve every person's right to judgment by an impartial tribunal.  (Emphasis added).

Lash then immediately invokes Thaddeus Stevens as if supporting the latter position:

In his speech introducing the Joint Committee's draft of the Fourteenth Amendment, Pennsylvania Representative Thaddeus Stevens declared that the third section "will not execute itself."  Stevens later insisted that the text would not prevent rebels from becoming President "unless in the prescription of proper enabling acts."

Lash does much the same thing in his draft law-review article manuscript (at 7):

Finally, none of the multiple drafts of Section Three addressed whether the text could be enforced in the absence of congressional enabling legislation.  Instead, key framers insisted that the text was not self-executing. For example, Joint Committee member Thaddeus Stevens explained that Congress would have to pass enabling legislation since the Joint Committee's draft of Section Three "will not execute itself." (emphasis in original)

By giving Stevens as an "example" of a "key framer[]" who "insisted that the text was not self-executing" Lash is mixing-and-matching. Stevens's statement about a different text has been misleadingly transformed into a statement about the Constitution we have. And again, later in the manuscript (at 27):

Stevens reminded his colleagues that Section Three required the passage of enabling legislation.  "[I]f this amendment prevails," Stevens explained, "you must legislate to carry out many parts of it," including legislation "for the purpose of ascertaining the basis of legislation." So to in regarding to Section Three.  "It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have a right to do.  So that objection falls to the ground."  No one at that time, or any time prior to final passage, disagreed with Stevens' declaration that the provision would not execute itself, or suggested it be redrafted so that it could be enforced even in the absence of congressional legislation.

Again, this is severely misleading. Lash's treatment conveys the impression that Stevens was speaking about Section Three of the Fourteenth Amendment, when in fact he was talking about the far more draconian disenfranchisement provision that was ultimately rejected. Stevens at no point said that the final proposal – the version of Section Three on which Congress settled, weeks later, and that became adopted as part of the Fourteenth Amendment – would require implementing legislation by Congress in order to have self-executing legal effect. Indeed, as we will see, Stevens himself would later characterize Section Three as it was eventually adopted as "wholly changed" from the May proposal, "by substituting the ineligibility of certain high offenders" for the original proposal of "disfranchisement of all rebels until 1870." (Congressional Globe, 39th Cong., 1st Sess. at 3148 (June 13, 1866)).

Stevens did not like the final, changed proposal very much.  But his objection to the final version was not that it required legislation in order to be legally operative.  Rather, his objection was that a simple officeholding ban accomplished less than Stevens thought necessary to rein in the political power of what he viewed as a still-disloyal South.  Everything of importance to Reconstruction, in Stevens's view, depended on breaking the political vise grip of the disloyal white South.

In addition to advocating for disenfranchisement of the disloyal, this also led Stevens to strongly champion further, more radical, measures to mandate and guarantee that recently freed former slaves be given the right to vote.  (That was ultimately accomplished by the Fifteenth Amendment, proposed by Congress in 1869 and ratified in 1870, but Stevens would not live to see it come to pass.  He died in 1868.)  This leads us to another confusion from Lash.

Here is Stevens, on June 13, 1866, commenting on the final version of the proposed Fourteenth Amendment, including its "wholly changed" Section Three, and on the need to enfranchise black citizens in order to remedy the amendment's shortcomings:

The Third section has been wholly changed by substituting the ineligibility of certain high offenders for the disfranchisement of all rebels until 1870.

This I cannot look upon as an improvement.  It opens the elective franchise to such as the States choose to admit.  In my judgment it endangers the Government of the country, both State and national; and may give the next Congress and President to the reconstructed rebels.  With their enlarged basis of representation, and exclusion of the loyal men of color from the ballot-box, I see no hope of safety unless in the prescription of proper enabling acts, which shall do justice to the freedmen and enjoin enfranchisement as a condition-precedent.  (Congressional Globe, 39th Cong. 1st Sess. at 3148 (June 13, 1866)).

Professor Lash spins Stevens's statement this way (at 7): "Once Congress had finalized the language of Section Three, Stevens again noted the need for Congress to pass enabling legislation."  Partially true: Stevens thought that further measures were needed to "do justice to the freedman and enjoin enfranchisement as a condition-precedent."  But he was not talking about enforcement acts to effectuate Section Three's officeholding ban, nor was he suggesting that Section Three was legally inoperative until such acts were passed. Rather, his point was that there was much more work to be done, in general, to make Reconstruction effective and to protect blacks' civil and political rights.  (Indeed, Lash's manuscript acknowledges as much at a later point, recounting Stevens's 1867 proposal of legislation to enfranchise black Americans in the South as part of the 1867 Reconstruction Acts).

Lash tries the same trick with statements made by Senate Judiciary Chairman Lyman Trumbull.  Lash invokes a newspaper report of a statement made by Senator Trumbull, again as if to suggest that Trumbull was saying that Section Three was not legally self-executing – that is, that it did not have automatic legal effect as a constitutional rule simply by virtue of its inclusion as part of the Fourteenth Amendment.  Trumbull, on Professor Lash's account (at 7), explained that legislation was necessary because the constitutional provision "provides no means for enforcing itself."  (Lash quotes a May 5, 1869 Columbus, Ohio newspaper report of a congressional debate of April 8, 1869; but the account is also set forth at Congressional Globe, 41st Congress, 1st Session 626 (April 8, 1869)).

The misuse of the Trumbull quotation is perhaps not quite as troubling as the misuse of Stevens's quotation, but Lash definitely presents Trumbull's views in a false light:  Trumbull's statement actually is directly contrary to Lash's thesis.  Quoted in full context, Trumbull was making clear that Section Three was already a self-executing requirement of constitutional law.   Legislation was not necessary in order to trigger a person's disqualification from office. That was accomplished directly by Section Three.

Thus, Trumbull said, the provision of the bill being debated

disqualifies nobody.  It is the fourteenth amendment that prevents a person from holding office.  It declares certain classes of persons ineligible to office, being those who having once taken an oath to support the Constitution of the United States, afterward went into rebellion against the Government of the United States.  (Congressional Globe, 41st Congress, 1st Sess. 626 (April 8, 1869 (emphasis added)).

Nonetheless, it was appropriate for Congress to add enforcement legislation, Trumbull said, because the Constitution's prohibition wasn't being obeyed everywhere:

But notwithstanding that constitutional provision we know that hundreds of men are holding office who are disqualified by the Constitution.  The Constitution provides no means for enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in the Constitution.  The Senator from Ohio says it provides for ever afterward disqualifying these persons from holding office.  That is nothing more than the Constitution of the United States has done.  That Constitution says that no person embraced within the classes specified shall hold any office.  This bill does no more.

Once again, this piece of legislative history does not remotely suggest that Section Three as a constitutional provision is not a self-executing legal command with the immediate force of law.  Quite the reverse. Trumbull was saying exactly what we argue in our article: Section Three's rule is legally automatic; and it is appropriate for Congress to add its enforcement power on its behalf. As we put it (at 22), "The Constitution is generally self-executing law, but still, somebody has to enforce it." Trumbull's point is no different.

In short, neither Stevens and Trumbull say what Lash portrays them as saying.   The positions Lash attributes to them are not the positions they took.  The statements Lash cites concerned other drafts, other provisions of law, or proposals for enforcement legislation that assumed that Section Three as adopted had already legally imposed constitutional disqualification from office.  This is poor, inaccurate, misleading "legislative history."  It is an illustration of precisely what should not be done when looking at legislative debates.

These misrepresentations matter: they can fool people who ought not be fooled.  Indeed, strikingly, some prominent scholars and advocates have carelessly picked up Lash's treatment of Stevens's and Trumbull's statement and adopted them in the service of the mistaken argument that Section three is not self-executing.

Disturbingly, Professor Michael McConnell, in a recent essay we have discussed before, seems to have adopted Lash's treatment of the legislative history (perhaps without checking it?) repeating and building on Lash's inaccurate portrayal.  McConnell writes that "the leading figures in the drafting and enforcement of the Fourteenth Amendment agreed with [Chief Justice Salmon P. Chase's opinion in Griffin's Case] that Section Three would require implementing legislation."  McConnell then offers Lash's out-of-context quotation of Stevens, concerning a different proposal, as if it were legislative history establishing that Section Three was not understood to be legally self-executing.  McConnell quotes Stevens this way: "'[Section Three] will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out.'"  McConnell then states that "Lyman Trumbull, Chairman of the Senate Judiciary Committee, likewise said that 'Some statute is plainly necessary to enforce the constitutional provision.'"

McConnell is obviously relying on Lash's account, and concludes without qualification or clarification that Section Three was understood to require implementing legislation.  But it is simply a factually wrong description of the legislative history to say that Stevens's view, or Trumbull's, was the same as the one Chief Justice Chase would later adopt in Griffin's Case.  McConnell appears to have swallowed Lash's account whole, being misled by it perhaps without carefully verifying it himself.

Equally disturbing is the repetition of the Lash account in an amicus brief filed on behalf of former attorneys general Meese, Mukasey, and Barr, professors Calabresi and Lawson, and two organizations.   Citing Lash, the brief begins (at 22) by noting that Representative John Bingham

expressly raised a concern that Section 3 would be unenforceable without additional action by Congress.  Lash, supra note 2, at 27. In response to Bingham's concern, one leading House Republican, Representative Thaddeus Stevens of Pennsylvania, agreed that there was a need for Congress to pass implementing legislation because Section 3 "will not execute itself." Cong. Globe, 39th Cong., 1st Sess. 2544 (1866). On the Senate side, Judiciary Committee Chairman Lyman Trumbull concurred, publicly explaining that it "provides no means for enforcing itself." Lash, supra note 2, at 7 & n.29 (quoting remarks of Sen. Trumbull as reported in The Crisis at 2 (Columbus, Ohio), May 5, 1869)).

The congressional record, moreover, does not show any Member of the House or Senate disagreeing with Stevens' acknowledgement that Section 3 is not self-executing.

The amicus brief thus advances the false view that Thaddeus Stevens thought the version of Section Three ultimately proposed was not self-executing, that Senator Trumbull believed this as well, and that there was apparently no disagreement about this in Congress.  (The brief's characterization of John Bingham's position is inaccurate for the same reason.)

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All of this highlights the susceptibility of constitutional legislative history to manipulation, misrepresentation, and abuse.  While evidence from such history can indeed be probative, it must be researched with care and reported accurately and with candor.  Professor Lash's work fails on this score.

In our next essay / post, we take up several other problems with Professor Lash's use of legislative history.