While I have not had the chance to review the history of Section Three in detail, I came across a few very interesting pieces of evidence from June 1868 about whether Section Three's enforcement requires congressional action. (As it turns out, after checking the briefs to see if anyone else had found it, I discovered that the Amars' amicus brief also mentions some of it–see here at 21–but without highlighting the juiciest bits.)
Josh Blackman and Seth Tillman argue in their big article, as part of their argument that states were not authorized to enforce it without congressional authorization,
Congress understood how to assign a role to the States to implement Section 3. For example, on June 25, 1868, about two weeks before the Fourteenth Amendment was ratified on July 9, 1868, Congress enacted a statute that set conditions for the readmission of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida to representation in Congress. Section 3 of this Act provides, in part:
[N]o person prohibited from holding office under the United States or under any State, by section three of the proposed amendment to the Constitution of the United States, known as article fourteen, shall be deemed eligible to any office in either of said States, unless relieved from disability as provided by said amendment….
Through this statute, Congress required the States to deem ineligible those individuals who were disqualified from holding "any office in either of said States." … This statute demonstrates that Congress understood how to assign the States a role to enforce Section 3. And this statute was self-executing upon its enactment.
This provision in the six-state readmission act was not, however, understood by its proponents as the enforcement of Section Three itself; it was adopted because of the worry that those disqualified by the Fourteenth Amendment would be able to serve during the brief-but-critical interregnum after direct federal military control of the states had ended but before the Fourteenth Amendment was in force. Details after the jump.
(Parenthetically, July 9 is the date of the Fourteenth Amendment's ratification only if we assume, as I think we should not, that New Jersey and Ohio were not allowed to rescind their ratifications, and that the entire 37 states in the Union are the relevant denominator. If only states represented in Congress count in the Article V denominator, then the Fourteenth Amendment became law in February 1867, when Pennsylvania ratified and brought ratifications to 20 out of the 26 states then represented in Congress. If we use a full denominator and New Jersey and Ohio were allowed to rescind ratification, then the Fourteenth Amendment became law only when Georgia ratified on July 21, 1868. On this theory, it was almost a month between the six-state admission act and Section Three itself becoming law.)
Senators Oliver Morton of Indiana and George Williams of Oregon (the latter a member of the 15-man Joint Committee on Reconstruction that proposed the Fourteenth Amendment, as well as an important player in the drafting of the Reconstruction Act of 1867) explained this very directly. Morton said on June 8,
In regard to the second clause [of Morton's amendment which he planned to offer], it is intended to meet this difficulty: to make ineligible officers who have been elected in the recent elections who would be ineligible when the fourteenth article becomes a part of the Constitution; in other words, to prevent the installation in advance of officers who would be ineligible and disqualified when the fourteenth article becomes a part of the Constitution by having been ratified by enough States. It is to prevent the anomaly of now installing officers that in a month or six weeks might become incompetent and ineligible by reason of the fourteenth article become a part of the Constitution.
Morton explained himself the same way on June 9:
The amendment I presented provides for the contingency of preventing officers from being inaugurated who are disqualified by the fourteenth article, which is not yet a part of the Constitution. The amendment I offered provides that officers who will be disqualified or ineligible when that article becomes a part of the Constitution shall not be inaugurated in advance. It prevents rather an anomalous and strange case.
Frederick Frelinghuysen then pointed to the Section-Three-analogous provision in the Reconstruction Act of 1867, which George Edmunds explained only applied to provisional governments, rather than "the State governments proposed to be set up."
On June 10, Williams explained himself the same way as had Morton, shortly before the relevant language was inserted into the proposed six-state statute:
As to the other provision [in Williams's proposed amendment], the adoption of the constitutional amendment by the Legislature of a State does not necessarily put the constitutional amendment in force, and by virtue of that constitutional amendment certain persons are made ineligible to any office under the Government of the United States, or under any State government. Certain persons who have held offices under the Government of the United States, taken an oath to support the Constitution, and have afterward gone into the rebellion are disqualified under that constitutional amendment from holding any office under the Federal Government or under any State government unless Congress shall relieve them. There is a question in the country as to whether or not that amendment is now a part of the Constitution of the United States; but in any event, no matter what may be the view taken of that question, when these States ratify the constitutional amendment, and when it becomes a part of the Constitution, which it is supposed will be the necessary effect of their action, let their offices be subject to that amendment. If persons who will be ineligible under the constitutional amendment when it takes effect are now permitted to go into office the offices will be vacated by the adoption of that constitutional amendment. Why not provide at once that no such men shall be inaugurated?
There is no hardship whatever in this provision of law, because we intended, when we passed the constitutional amendment and submitted it to the States, that the persons therein described should be disqualified from holding office in the States lately in rebellion. That was our purpose in passing the constitutional amendment; that was our purpose in requiring it to be ratified by the requisite number of states. If it be true that twenty-three States, being more than three fourths of the loyal States of the Union, having ratified the constitutional amendment, it is now a part of the Constitution, then this clause is perfectly constitutional and perfectly proper; but there is doubt upon that question; people do differ as to whether or not that has taken effect. The object of this provision is not to allow persons to go into possession of office in the southern States who are made ineligible by that fourteenth amendment to the Constitution, for if they are allowed to take possession of the offices now, when the States ratify the constitutional amendment, when twenty-eight shall have given their assent to it, then these persons in office must necessarily vacate and there will be no provision for filling the offices.
Williams stated very clearly that Section Three would by itself vacate the relevant offices, without any further congressional action being required. Morton later commented about the statutory amendment,
It simply provides, and that is the whole of it, that the same rule as to eligibility shall be applied to officers inaugurated before the fourteenth article becomes a part of the Constitution, which will exist after it does become a part of the Constitution, which will exist after it does become a part of the Constitution, and the disability in either case is to be removed in the same way by a simple act of Congress. Otherwise it may happen, as the Senator from Oregon says, that persons may be inaugurated who will become disqualified the moment the fourteenth article becomes a part of the Constitution, and whom Congress, perhaps, may choose never to relieve; but if we now vote to apply the same rule to officers what will be applied by the fourteenth article when it becomes ratified, then we shall have no contention about it, and the act of Congress relieving the particular person will be equally applicable in either case.
In response to complaints from Edmunds and Frelinghuysen that Congress lacked any power over state qualifications during the interregnum, Morton elaborated on the lack of congressional Section-Three-enforcement discretion once the Fourteenth Amendment was ratified:
[T]he character of the State is not put on until all of the conditions have been complied with, the last one of which is the ratification of the fourteenth article of amendment. It is clearly within the control of Congress up to that time, and then when the fourteenth article becomes a part of the Constitution the thing is taken from the control of the State as well as from Congress, as far as the provisions of that article are concerned. It is a part, then, of the supreme law of the land that these parties shall not be qualified.
Accordingly, the discussion preceding the six-state readmission act, rather than suggesting that congressional action was required in order to remove former Confederates from power, proves exactly the opposite. Williams and Morton thought–and no one in Congress seems even to have suggested otherwise–that Section Three was self-executing.
Posted at 10:21 AM