The pardon of Jefferson Davis and the 14th Amendment - National Constitution Center

On October 17, 1978, President Jimmy Carter signed a bill restoring US citizenship to Jefferson Davis. According to Davis, “It has been said that I should apply to the United States for a pardon, but repentance must precede the right of pardon, and I have not repented,” Davis said in 1881. If unrepentant, should President Carter have pardoned him? From the article:

"The pardon of Jefferson Davis and the 14th Amendment

On this day in 1978, President Jimmy Carter officially restored the full citizenship rights of former Confederate president Jefferson Davis, signing an act from Congress that ended a century-long dispute.

Davis is most remembered today as one of the leaders of the Confederacy, along with General Robert E. Lee. In 1976, Lee’s citizenship was restored by Congress, also about a century after Lee’s death after the Civil War. The restoration of Davis' citizenship soon followed.

“In posthumously restoring the full rights of citizenship to Jefferson Davis, the Congress officially completes the long process of reconciliation that has reunited our people following the tragic conflict between the States,” the resolution read on October 17, 1978.

“Earlier, he was specifically exempted form resolutions restoring the rights of other officials in the Confederacy. He had served the United States long and honorably as a soldier, Member of the U.S. House and Senate, and as Secretary of War. General Robert E. Lee's citizenship was restored in 1976. It is fitting that Jefferson Davis should no longer be singled out for punishment,” the resolution said.

Attempts to restore Davis’ full citizenship were a hot-button issue in 1876, when there was talk about Davis as a potential Senate candidate. Specifically, provisions in the 14th Amendment made that nearly impossible, unless Congress decided otherwise.

Section 3 of the 14th Amendment said that the House and Senate would need to approve Davis as an officeholder because of his association with the Confederacy.

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any 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 executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability,” the section reads.

It wasn’t Davis’ first brush with the 14th Amendment.

He was charged with treason after the Civil War, and his defense team claimed that the 14th Amendment already punished Davis by preventing him from holding public office in the future and that further prosecution and punishment would violate the Double Jeopardy Clause of the Fifth Amendment.

In fact, the 14th Amendment had been passed during the time of Davis’ indictment in the federal court system, when the case of United States v. Jefferson Davis was being heard.

One of the trial justices in the Davis case in 1868 was Supreme Court Chief Justice Salmon Chase, who was at the district court in his role as a circuit judge. Chase wanted the treason charges dismissed, but a second judge, John C. Underwood, disagreed with him.

With a deadlock in district court, the Davis case would head automatically to the Supreme Court. But President Andrew Johnson issued a general pardon on Christmas Day in December 1868 for all those who fought for the Confederacy, provided that anyone eligible applied for one.

It was actually Johnson's fourth amnesty provision for Confederates, and it restored civil and property rights and provided immunity from treason charges. But it didn't allow former Confederate officials to vote or hold office. In 1872, the Amnesty Act was amended to allow almost all former Confederates, except for several hundred former high-ranking officials (such as Davis), to hold public office and vote. So while Davis became eligible for a general pardon, he didn’t have full citizenship rights if he wanted to hold elected federal office.

In 1876, Davis was specifically excluded from a universal amnesty bill that restored the full citizenship rights of the remaining former Confederates. The amendment to the bill was proposed by James G. Blaine, a candidate in that year’s presidential election.

When it passed, there was outrage in some Southern states. And Davis had no inclination to ask for any kind of pardon. “It has been said that I should apply to the United States for a pardon, but repentance must precede the right of pardon, and I have not repented,” Davis said in 1881.

In a book published right after his death, his wife Varina Davis said people in Mississippi had asked her husband to run for the Senate again in the 1870s, but he had no interest, citing his age.

Before his involvement with the Confederate government, Davis was a highly respected U.S. senator from Mississippi and a former secretary of war. And his Senate resignation speech from 1861 was one of the most dramatic moments in the run-up to the Civil War.

Davis explained that Mississippi was leaving the Union because “we are about to be deprived in the Union of the rights which our fathers bequeathed to us.” There was open weeping in the Senate chamber after the speech.

“I hope ... for peaceful relations with you, though we must part. They may be mutually beneficial to us in the future, as they have been in the past, if you so will it. The reverse may bring disaster on every portion of the country,” Davis said."