The Amnesty Act of 1872 is a United States federal law passed on May 22, 1872, which removed most of the penalties imposed on former Confederates by the Fourteenth Amendment, adopted on July 9, 1868. Section 3 of the Fourteenth Amendment prohibits the election or appointment to any federal or state office of any person who had held any of certain offices and then engaged in insurrection, rebellion, or treason. However, the section provides that a two-thirds vote by each House of the Congress could override this limitation. The 1872 act was passed by the 42nd United States Congress and the original restrictive Act was passed by the United States Congress in May 1866.[4]
Specifically, the 1872 Act removed office-holding disqualifications against most of the secessionists who rebelled in the American Civil War, except for "Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States."[5]
In the spirit of the act, then United States President Ulysses S. Grant, by proclamation dated June 1, 1872, directed all district attorneys having charge of proceedings and prosecutions against those who had been disqualified by the Fourteenth Amendment to dismiss and discontinue them, except as to persons who fall within the exceptions named in the act.[5] President Grant also pardoned all but 500 former top Confederate leaders.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.[6]
Attempted post-Civil War application
The Amnesty Act of 1872 states that all political disabilities imposed by the Fourteenth Amendment "are hereby removed," but does not explicitly mention whether future disabilities under the same amendment are also to be considered removed. Section 3 of the Fourteenth Amendment has been invoked only twice since the American Civil War: in 1919 and 1920, it blocked Victor L. Berger, a member of the Socialist Party who had won both elections, from taking office as the Representative from Wisconsin because he had been convicted of violating the Espionage Act of 1917.[7] Although Section 3 was applicable to Berger, it does not appear that the Amnesty Act of 1872 was considered. Thus, it is not entirely clear whether this Act also automatically removes political disability for subsequent actions that violate Section 3.
↑ "Chapter 157: The Oath As Related To Qualifications", Cannon's Precedents of the U.S. House of Representatives, vol.6, January 1, 1936, In regard to the first question, your committee concurs with the opinion of the special committee appointed under House resolution No. 6, that Victor L. Berger, the contestee, because of his disloyalty, is not entitled to the seat to which he was elected, but ... that having previously taken an oath as a Member of Congress to support the Constitution of the United States, and having subsequently given aid and comfort to the enemies of the United States during the World War, he is absolutely ineligible to membership in the House of Representatives under section 3 of the fourteenth amendment to the Constitution of the United States.
↑ Cawthorn v. Amalfi,35F.4th245, 248(4th Cir.2022)("Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment's eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment.").
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