Griffin's Case (1869) and The Enforcement Act of 1870

Justice Kavanaugh was right. Chief Justice Chase's decision in Griffin's Case "forms the backdrop against which Congress" legislated The Enforcement Act of 1870. 

[This post is co-authored with Professor Seth Barrett Tillman]

On Thursday, February 15, 2024, Professor Mark Graber published a post on Balkinization titled "The Enforcement Act of 1870: Disqualification Myths and Realities." Graber accuses Trump's lawyers of "fabrication" and "mythmaking" concerning Griffin's Case and the Enforcement Act of 1870. He writes that Trump's lawyers "claim[ed] that Griffin's Case inspired the Enforcement Act of 1870." 

• "Donald Trump's lawyers engaged in mythmaking when in their briefs and in oral argument they insisted that Congress was responding to Chief Justice Salmon Chase's claim in Griffin's Case (1869) that constitutional disqualification was not self-executing, that no person could be disqualified from office in the absence of federal legislation." (emphasis added).
• "The Trumpian claim that Griffin's Case inspired the Enforcement Act of 1870 is a fabrication." (emphasis added).
• "The only evidence Trump and his lawyers have that Griffin's Case influenced the Enforcement Act of 1870 is that Griffin's Case was decided in 1869, the year before the Enforcement Act was passed." (emphasis added).

In fact, Trump's lawyer, Jonathan Mitchell, made narrower claims. Mitchell said:

• "Griffin's Case provided the backdrop against which Congress legislated the Enforcement Act of 1870 when it first provided an enforcement mechanism for Section 3." Trans. at 12 (emphasis added). 
• "Congress relied on Griffin's Case when it enacted the Enforcement Act of 1870." Trans. at 13 (emphasis added).
• "Congress took up the invitation provided by Griffin's Case and established writs of quo warranto in the 1870 Enforcement Act." Trans. at 14 (emphasis added).

And Justice Kavanaugh likewise made a relatively narrow claim as part of the liquidation argument. He said that Griffin's Case was a "precedent" that was "reinforced because Congress itself relies on that precedent in the Enforcement Act of 1870 and [Griffin's Case] forms the backdrop against which Congress does legislate."

We think the positions put forward by Justice Kavanaugh and Jonathan Mitchell were substantially correct. Professor Will Baude and Professor Michael Stokes Paulsen, to their credit, made a point along the same lines. They wrote, "Congress may have been responding to the decision in Griffin's Case (wrongly) holding that such legislation was required for Section Three to have operative legal effect." Baude & Paulsen, The Sweep and Force of Section 3, at 20 n.55 (emphasis added). We too made a similar point. Blackman & Tillman, Sweeping and Forcing, at 442-43.We agree that Congress was responding to Griffin's Case, but we, unlike Baude and Paulsen, maintain Griffin's Case was rightly decided.

In this post, we intend to show that Graber's claims do not withstand scrutiny. To make our case, we will walk through the overlapping chronologies of Griffin's Case and the Enforcement Act of 1870. (This post will presume the reader already has some familiarity with the facts of Griffin's Case and its posture and the general history of Reconstruction.)

Late 1868—Judge Underwood and Griffin's Case

Judge Underwood was the United States District judge for the District of Virginia. In 1868, Judge Underwood held court in Richmond, Virginia. He presided over Griffin's Case, which was a habeas corpus proceeding, that is, a collateral challenge to a state court conviction. See Local Matters, Richmond Daily Dispatch (11/12/1868) at 1. On December 7, 1868, Judge Underwood ruled for Griffin, holding that Section 3 could be enforced in federal court without federal enforcement legislation. Richmond Daily Dispatch (12/8/1868) at 1. That decision would prove to be controversial. At the time, a newspaper from Staunton, Virginia observed that Underwood's judgment was "immediately" appealed, observing that "we feel certain [it] will be reversed." The Caesar Griffin Case, Staunton Spectator (12/15/1868) at 2. The Spectator's prediction was entirely correct. 

March and April 1869—Senate Bill 114

As the Griffin's Case appeal progressed, the first session of the 41st Congress continued. On March 11, 1869, Senator Orris S. Ferry of Connecticut introduced Senate Bill No. 114, and it was referred to the Judiciary Committee. Cong. Globe, 41st Cong., 1st Sess., 47. On March 15, 1869, Senator Lyman Trumbull of Illinois reported several bills from the Judiciary Committee, including Senate Bill No. 114. Cong. Globe, 41st Cong., 1st Sess., 62. On April 8, 1869—two days before the first session concluded—Senator Trumbull moved for the "consideration of Senate Bill No. 114." Cong. Globe, 41st Cong., 1st Sess., 625. The Senate considered the bill "in Committee of the Whole." Id. The first two sections provided:

Sec. 1. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court.

Sec. 2. And be it further enacted. That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding $1,000 and shall forever be disqualified to hold any office of honor, trust, or profit under the United States or any state. (emphasis added).

The second section expressly imposed a permanent statutory disqualification from holding "any office . . . under the United States or any state" following a criminal conviction. Graber and others have argued that Section 3, on its own force, would disqualify people from holding office. This bill suggests that an additional process was required before a person could be disqualified—a criminal conviction. We refer to this element as the "criminal disqualification provision." The bill also did not impose a disqualification from serving as a member of Congress or a presidential elector—the other disqualified positions that are expressly enumerated in Section 3. As we read things, Trumbull was not seeking to exercise the full sweep of authority provided for by Section 3. The bill would not disqualify convicted defendants  from holding seats in Congress or from being presidential electors. It only applied to (in our view) appointed positions in the federal government and certain state positions. And because this Senate Bill No. 114 disqualification was a criminal statutory penalty, it could only be relieved through presidential clemency, and not through Congressional amnesty under Section 3. 

Senator Allen Thurman of Ohio did not object to Section 1's quo warranto provision, which he said was reported from the Judiciary Committee "with no amendment of any consequence." (The earlier version can be found here.) But he moved to strike the second section. Id. at 626. He thought it was harsh to incarcerate a person who was holding office in violation of Section 3 of the Fourteenth Amendment. Moreover, Congress could not relieve a person of the statutory disability under this bill. Senator Garrett Davis of Kentucky likewise objected to the penal nature of the second section of the bill. Id. at 627.

Trumbull addressed these concerns. He said:

I trust the second section [that is, the criminal disqualification provision] will not be stricken out. This section 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. 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. [Id. at 626 (emphasis added).]

After a question, Trumbull continued his explanation. He stated:

Some statute is certainly necessary to enforce the constitutional provision; and the punishment to be prescribed is left entirely in the discretion of the court, except as to the disqualification which is put upon the party convicted. The first section of the bill is not objected to by the Senator from Ohio, and the second section is only cumulative. It is to afford a more efficient and speedy remedy to prevent persons from holding office who are not entitled to take office under the Constitution of the United States. It will interfere with none but the guilty. The innocent will never be prejudiced by it. [Id. at 627 (emphasis added)].

This colloquy was reported in newspapers. See Remarks of A.G. Thurman, The Hancock (Ohio) Courier (5/20/1869) at 1. (Again, this report in an Ohio newspaper is no surprise: Thurman was an Ohio senator.) 

It is not entirely clear how Trumbull used the word "necessary." Does Trumbull's use of "necessary" refer to necessary in the sense that the Constitution required such legislation to implement Section 3 of the Fourteenth Amendment? Or does Trumbull's use of necessary refer to legislation that would be an appropriate and effective means to carry out Section 3? We think the better reading of Trumbull's statements during debate supports the former reading of "necessary." That is, Section 3 requires federal enforcement legislation. We acknowledge that much ink has been spilled about the meaning of "necessary" in the Necessary and Proper Clause: Does it refer to strict necessity or mere convenience? 

Baude and Paulsen take a contrary view. They argue that the latter reading is unquestionably correct. They write, "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." We see no basis for their self-proclaimed confidence in interpreting the cold congressional record. Although Trumbull acknowledged that Section imposes an abstract disqualification, he expressly stated that Section 3 "provides no means for enforcing itself." Thus Trumbull's bill was not an additional means to enforce Section 3, the bill was the only means to enforce Section 3. And Trumbull proposed two methods to enforce Section 3: a civil quo warranto procedure and a criminal disqualification provision. Absent these provisions, or other federal statutes, a disqualified person would remain in office. It is in this sense that Section 3 is not self-executing, and that was Trumbull's primary point.

After Trumbull spoke, Senator Jacob Howard of Michigan entered the debate. Howard did not think this provision was necessary. Howard said he would support the first section of Senate Bill 114, "although I entertain very serious doubts of the necessity for it." Cong. Globe, 41st Cong., 1st Sess., 628 (emphasis added). Howard explained that a disqualified person "is actually out of office by virtue of that clause of the Constitution …." Id. We understand that the Colorado voters, as well as Baude and Paulsen, disagree with Howard's claim. They assert that the disability attaches immediately, but the person remains in office until removed, and any of his actions would be saved by the de facto officer doctrine. 

Moreover, Howard seems to understand Trumbull as using necessary to mean strictly necessary. Howard suggests that this legislation is not needed at all, since a person is automatically disqualified from office. It is in this sense that Howard uses the word "necessity." Accordingly, Samarth Desai, a Yale law student and research assistant of Professor Akhil Amar, described Howard's use of necessity as providing a "convenient mechanism of enforcement," in addition to the self-executing character of Section 3. Here, we think Howard was rejecting a non-self-executing understanding of Section 3. Were Trumbull merely talking about an effective means to enforce Section 3, Howard would not be in disagreement with Trumbull. Our view is that Howard disagreed with Trumbull. This disagreement demonstrates that there was a diversity of views on whether Section 3 required federal enforcement legislation. 

Graber quotes Howard for the Section 3 is self-executing position, but Graber does not indicate that Howard's remarks came before Chief Justice Chase's decision. Graber's post does not quote Trumbull's contrary remarks, which appeared on the page before Howard's remarks. One sees that Graber's perspective of the congressional debates is one-sided.

No further substantial action was taken on Senate Bill 114 before the first session concluded on April 10, 1869. See Index to the Congressional Globe, First Session Forty-First Congress, History of Bills and Resolutions: Senate Bills, iii, vi.

Graber wrote, "The provisions in the Enforcement Act relevant to constitutional disqualification were introduced in the Senate on April 8, 1869. Griffin's Case was decided more than a month later." This statement fails to provide the reader with the full context. The bill debated on April 8, 1869, was never enacted when the session concluded. As we will explain below, Senate Bill 114 was not what became known as the Enforcement Act of 1870. Instead, the bill which became the Enforcement Act was introduced after Griffin's Case. In short, before Griffin's Case was decided, the first session of the 41st Congress failed to enact the quo warranto provision in Senate Bill 114. And at that time, there was limited debate on the topic. However, in the interregnum between the first and second session of the 41st Congress, Chase decided Griffin's Case. Only after Griffin's Case was decided, did the second session of the 41st Congress, having substantially the same membership as the prior session, enact the quo warranto provision in a different bill. And there was debate on other enforcement bills about whether Section 3 was self-executing and that debate expressly referenced Chase and Griffin's Case. And this should be no surprise. Griffin's Case was not a state secret; it was widely reported in the newspapers of the day. Contra Graber, as will be shown below, this is some good evidence that the Enforcement Act, and its quo warranto provision, was a response to Griffin's Case. 

May 1869—Griffin's Case

On May 1, 1869, Chief Justice Chase "declared himself ready to try the Caesar Griffin case." Caesar Griffin's Case, Richmond Daily Dispatch (5/1/1869) at 1. The Dispatch observed that "Mr. Chase has his opinion prepared in the case, and whether or not he will postpone is a matter of considerable doubt." Nine days later, on or about May 10, 1869, Chief Justice Chase issued his decision in Griffin's Case. Chief Justice Chase's Opinion in the Caesar Griffin Case, Richmond Daily Dispatch (5/11/1869) at 1. 

Chase's opinion concluded, "To accomplish this ascertainment [under Section 3] and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress." (emphases added) We do not know if Chase had seen Trumbull's comments, but his holding is consistent with the strict necessity reading of Trumbull's remarks. Will Baude and Michael Stokes Paulsen argue that it is "simply a factually wrong description of the legislative history to say that . . . Trumbull's [position], was the same as the one Chief Justice Chase would later adopt in Griffin's Case." We disagree for the reasons described above: Trumbull did not view Section 3 as self-executing in any practical sense, and it was from that practical perspective that Chase had examined the self-execution issue.

In the aftermath of Griffin's Case, northern and southern newspapers alike praised Chase's decision. Blackman & Tillman, Sweeping and Forcing, at 478-79. One such newspaper expressly observed "the Fourteenth Amendment is not self-enforcing, and needs further legislation of Congress to enforce it." Important Decision of Chief Justice Chase—the Eligibility of Virginia State Officers Sustained—Judge Underwood's Decision Reversed, New York Herald (5/11/1869) at 7. After 1869, and until circa 2020, Griffin's Case was cited by the U.S. Supreme Court and by many other federal and state courts. Blackman & Tillman, Sweeping and Forcing, at 477-78 (collecting citations). We know of no court of record that rejected Chase's holding; we know of no court of record that suggested Griffin's Case's holding might or ought be revisited. We know of no substantial body of legal commentary, prior to 2020, that cast doubt on Chase's handiwork, and we know of no single article or treatise taking any such position. As recently as 1971, Professor Fairman defended Chase and Griffin's Case. See Charles Fairman, Reconstruction and Reunion 1864–1888, Part One, at 607 (1971); Blackman & Tillman, Sweeping and Forcing, at 474. Still, Graber writes: "What Republican commentary existed on Griffin's Case outside of Congress was quite critical." He supplies no explanation what sources he examined and how he arrived at this inexact generalization. 

December 1869—February 1870—Discussion of Griffin's Case

The second session of the 41st Congress began on December 6, 1869. On December 22, 1869, the House debated a bill to promote reconstruction in Georgia. Cong. Globe, House of Representatives, 41st Cong., 2d Sess., Appendix 34. Representative William Lawrence was an Ohio Republican. Lawrence favorably quoted Griffin's Case, as reported by George Washington Paschal. Id. at 35.

A few weeks later, the House debated a bill (H.R. No. 783) to readmit Virginia. On January 13, 1870, Representative Lawrence again cited Griffin's Case to justify the need for enforcement legislation. Cong. Globe, 41st Cong., 2d Sess., 431: "There is a necessity for such legislation founded on constitutional law. It has been held by the Chief Justice of the United States, in re Caesar Griffin, that section three of the fourteenth amendment does not execute itself; that legislation by Congress is necessary to enforce it." (emphasis added) We think Lawrence understood "necessary" to mean that legislation was required. Rep. Lawrence then asked the clerk to read a passage from Chase's decision. The excerpt from Griffin's Case read into the record by the clerk included the passage we quoted above: "To accomplish this ascertainment and [e]nsure effective results proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable and these can only be provided for by Congress." Lawrence continued, quoting Chase, "'These [federal proceedings] can only be provided for by Congress,' says the Chief Justice; then it is our duty to do so." Lawrence explained, "It is our duty to make all laws necessary to enforce its [i.e., Section 3's] provisions." Lawrence, a former judge from Ohio, accepted Chase's reasoning and sought to act upon it by enacting federal legislation to implement Section 3 of the Fourteenth Amendment. 

The next day, on January 14, 1870, Representative Hamilton Ward Sr., a New York Republican, referred back to Lawrence's remarks. Cong. Globe, House of Representatives, 41st Cong., 2d Session, 485. Ward, in discussing a related matter, asked why Congress needed to prescribe an oath by statute "if it is in the Constitution." By way of explanation, Ward favorably cited Lawrence's prior remarks and Griffin's Case. And he offered not even the slightest hint that he thought the Griffin's Case was wrongly decided. (Ward would serve as a New York state trial court and appellate judge, and afterwards as New York Attorney General.)

On January 17, 1870, the Senate debated the same bill–H.R. No. 783–which governed the readmission of Virginia. Senator Arthur I. Boreman, a West Virginia Republican, discussed Chase's decision in Griffin's Case. (Prior to 1870, Boreman was the first Governor of West Virginia, and he held the position of state court trial judge both before and after his senate term.) Boreman stated:

But, sir, as another reason, I may say, for the introduction of this amendment, we have had called to our attention by a decision of the Chief Justice of the United States a fact to which the attention of most members probably had not been called before, the fact that the Constitution of the United States does not execute itself; that this fourteenth amendment will not execute its own provisions, which prohibit certain persons from holding office in the country. In the opinion of Chief Justice Chase in the case of Caesar Griffin, decided May 10, 1869, at Richmond, . . . . [Cong. Globe, 41st Cong., 2d Sess., 513 (emphasis added)]

Then Boreman quoted from the same passage in Chase's decision that Lawrence had quoted.

Boreman continued to cite Chase:

I understand that this decision of the Chief Justice of the United States has called the attention of the people of Virginia to this question, and that if this amendment is not incorporated in this bill [then] officers may be installed in office in Virginia without looking to the qualifications under the third section of the fourteenth amendment. It is to provide against that contingency that those who support this amendment now advocate it. Let it be remembered, sir, that this amendment does not simply apply to the officers who are already elected, and to the existing members of the Legislature, but there are innumerable officers to be elected in Virginia in pursuant of the provisions of their [state] constitution. There are their judges of the court of appeals; these are their circuit judges; there are their county judges, and all the various officers of the State, who may be inducted into office without regard to the requirements of the fourteenth amendment, if some provision of this sort is not incorporated in this bill. [Cong. Globe, 41st Cong., 2d Sess., 513-514] 

On January 17, 1870, H.R. No. 783 was amended by Senator Oliver Morton, an Indiana Republican, to include a criminal disqualification provision that was identical to the text in Senate Bill 114. This legislative history reflects that members of Congress responded to Griffin's Case with practical legislation. 

On February 8, 1870, Representative Lawrence discussed another bill that would enforce the Fourteenth Amendment, H.R. No. 818. (Congress.gov records version of that bill here.) That bill was introduced by Representative Whittemore of North Carolina on January 17, 1870. Cong. Globe, 41st Cong., 2d Sess., 519. Lawrence said this bill "was of great importance, and under a decision of the Chief Justice of the United States is necessary to enforce the amendments to the Constitution." Cong. Globe, 41st Cong., 2d Sess., 1161 (emphasis added). Again, Lawrence's use of "necessary" here conforms to that used by Chase, and so, necessary means required, and not just a matter of convenience.

The views of Lawrence, Ward, and Boreman, are consistent with a reading of Trumbull's remarks from April 1869 that Section 3 requires federal enforcement legislation. Furthermore, Lawrence's remarks, like those of Trumbull, were in the context of debate on actual federal enforcement legislation for the Fourteenth Amendment.

Graber wrote "What Republican commentary existed on Griffin's Case outside of Congress was quite critical." Of course there were comments inside Congress that are worth discussing. Senator Boreman and Representatives Lawrence and Ward were all Republicans. We offer these party affiliations for the benefit of those persuaded by Graber, who consistently rejects the views of any Democrats because they opposed the Fourteenth Amendment and other elements of Reconstruction. In our view, party affiliation counts for little in establishing original public meaning. What matters (or what ought to matter) is not the expectations of any speaker, but the consistency with which a speaker holds a position, the depth of his learning, and, most importantly, the reasons offered to substantiate his view.

Boreman, Lawrence, and Ward did not criticize Griffin's Case at all. Our view is that they accepted the premises, logic, and conclusions put forward by Chase's opinion. We also saw no pushback against their positions about Griffin's Case. (Moreover, we did not see any discussion of how the Case of Jefferson Davis in any way contradicted Griffin's Case; that argument did not arise until circa 2020) After May 1869, members of Congress took Chase's view in Griffin's Case as the final word on self-execution. If there were dissenters in Congress, neither Graber nor anyone else (as far as we know) have put those dissents forward prominently in the literature. 

February—May 1870—The Enforcement Act of 1870

Next, we will track the legislative history of the Enforcement Act of 1870. It is impossible to draw a straight, uninterrupted line between the bill that Trumbull debated in April 1869 and the bill that President Grant signed in May 1870. Rather, the overwhelming majority of the legislative deliberations occurred after Chase had decided Griffin's Case. To illustrate how the process developed, we will get into the weeds of the legislative process in the House and the Senate.

On February 21, 1870, what would become the Enforcement Act was introduced in the House by Representative John Bingham as H.R. No. 1293. Cong. Globe, 41st Cong., 2d Sess., 1459. (Congress.gov reports several versions of H.R. No. 1293.) Discussion of the bill would begin in the House on May 16, 1870. Cong. Globe, House of Representatives, 41st Cong., 2d Sess., 3503. The House bill as introduced had ten sections; importantly, it did not have any quo warranto provision or provide for incarceration of those who held public office in violation of Section 3 of the Fourteenth Amendment. Id. at 3503-3504. In other words, Bingham's bill did not include any provisions analogous to the key provisions in Senate Bill 114.

On April 22, 1870, Senate Bill 114 was on the calendar, and discussed on the floor of the Senate. Senators Stewart and Trumbull urged the matter to be taken up. Cong. Globe, 41st Cong, 2d Sess., 2892. However Senator William T. Hamilton of Maryland objected. The Vice President announced that the bill would "go over." Id.

Professor Xi Wang wrote a careful study of the drafting history of the Enforcement Act of 1870. Xi Wang, The Making of Federal Enforcement Laws, 1870-1872, 70 Chi.-Kent L. Rev. 1013, 1023-25 (1995). Senate Bill 810, which would enforce the Fifteenth Amendment, was introduced by Senator George Edmunds of Vermont on April 19, 1870. Cong. Globe, Senate, 41st Cong., 2d Sess., 2808. (Congress.gov tracks several versions of Senate Bill 810.)

On May 16, 1870, Senator William Morris Stewart, a Nevada Republican, added to Senate Bill 810 the two key provisions from Senate Bill 114, including the Quo Warranto provision and the criminal disqualification provision. Id. at 3480. Again, there was much discussion about the criminal disqualification penalty for violating Section 3. Id. at 3509. Professor Wang explains "All these Senate bills, including Stewart's own bill (S. 503), were put aside when the Senate Judiciary Committee decided to bring before the Senate a new bill (S. 810, originally proposed by George F. Edmunds of Vermont on April 19, 1870) for discussion." Wang, supra at 1023 n.36. Senator Orris Ferry of Connecticut favored the "short, speedy, efficacious" quo warranto remedy, but moved to strike the criminal provision. He thought the latter provision was in "defiance of the principles upon which our party rests" by denying a "political right, to this large class of society." Id. at 3490. In March 1869, Ferry was the Senator who first introduced Senate Bill 114. It seems that Ferry had second thoughts about the criminal disqualification provision. Ferry's proposal was supported by Senator Hiram Revels of Mississippi, the first black member of the U.S. Senate. Id. at 3520. 

On May 17, 1870, Senator Stewart moved to strike out the criminal disqualification penalty: "and shall forever be disqualified to hold any office of honor, trust, or profit under the United States or any State." Id. at 3518. However, Senator Howard objected to that amendment. Id. Stewart suggested that when the Senate bill "shall have been perfected it can be offered as a substitute for the House bill." Id. 

On May 18, 1870, Senator Stewart did as he said he would do, and offered the Senate bill with amendments as a substitute for John Bingham's House Bill. The House bill did not include any Quo Warranto provision, but the substitute Senate bill did include the Quo Warranto provision. Id. at 3561. Sections 13 and 14 of the Senate bill were copied verbatim from Trumbull's proposal at the end of the first session, including the criminal disqualification penalty. Id. at 3561-62.

The Senate passed the Senate bill on May 20, 1870. Id. at 3689, 3690. That version of the Senate bill removed the criminal disqualification penalty that imposed a statutory disqualification against convicted defendants. Id. at 3689. But the Senate bill retained the other criminal sanctions for holding an office in violation of Section 3: jail time or a fine. The House would pass the bill on May 27, 1870. Id. at 3884. The Enforcement Act was approved by President Grant on May 31, 1870, including the quo warranto provision. 

Sections 14 and 15, as enacted, provide:

Sec. 14. And be it further enacted, That whenever any person shall persons hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the of the court to which it is made returnable, and shall not be continued unless continued unless for cause proved to the satisfaction of the court.

Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court.

It is true that Senator Trumbull discussed a draft bill with a quo warranto provision in April 1869, a month before Chase decided Griffin's Case. And some discussion of that bill, with its quo warranto provision, is consistent with an understanding that Section 3 requires enforcement legislation. But that starting point tells only a small portion of the legislative history of the Enforcement Act of 1870. The overwhelming majority of the deliberations on this issue occurred after Griffin's Case was decided. 

Conclusion

In Sweeping and Forcing, we made this observation about Chase's opinion:

To put it another way, Congress responded to Griffin's Case by passing substantive enforcement legislation: just as Chase thought Congress needed to do. The Enforcement Act of 1870 was passed about a year after Chase issued his Griffin's Case opinion. Admittedly, individual members might have had any number of reasons to pass this legislation. But the key reason we suggest was not that its members feared Chase was wrong on the self-execution issue, but that they feared, as a legal matter, Chase was correct. What do we mean by correct? Correct in the sense that Congress's members feared that (at least) four other of the eight Supreme Court Justices (in office in May 1870) agreed with Chase, along with a substantial number of judges on the inferior courts. [Blackman & Tillman, Sweeping and Forcing, at 442-43]

We think this statement, as well as the statements made by Justice Kavanaugh and Jonathan Mitchell, is substantially correct. By 1870, Congress was legislating against the backdrop of Griffin's Case. Three Republican members of Congress specifically cited Chase's decision as a justification to enact enforcement legislation. Senator Trumbull contended that enforcement legislation was necessary. Senator Jacob Howard, however, thought the legislation may not be necessary. But our knowledge of Howard's views springs from what he said prior to Griffin's Case being decided. It is true that prior to Griffin's Case, there was some disagreement about whether legislation was strictly required. But after Griffin's Case, such disagreement is difficult to find in debates on the Force Act of 1870. 

Graber charges Trump's lawyers with "fabrication" and "mythmaking." These claims are not accurate. Graber writes: "What Republican commentary existed on Griffin's Case outside of Congress was quite critical." These claims fail to account for Republican members of Congress who were supportive of Griffin's Case. Graber asserts, "The provisions in the Enforcement Act relevant to constitutional disqualification were introduced in the Senate on April 8, 1869. Griffin's Case was decided more than a month later." The bill introduced on April 8, 1869, was never enacted. Rather, what became the Enforcement Act was introduced after Griffin's Case was decided. 

In the end, Justice Kavanaugh was correct: Chief Justice Chase's decision in Griffin's Case "forms the backdrop against which Congress" legislated the Enforcement Act of 1870.