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Wednesday, August 19, 2020

Section Three and Officers of the United States

Take a look again at the language of Section Three of the Fourteenth Amendment: 

No person shall be a Senator of 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.

What's missing from Section Three's list of political disabilities? The Presidency. Now this may seem odd. Jefferson Davis could not be elected to Congress but could still be elected President? The oddness goes away, though, if you say the presidency is an office under the United States. What's not an office under the United States? Section Three seems to say that the answer is (1) a member of Congress; (2) a presidential elector; and (3) any state official. 

I haven't yet gone into the debates on Section Three. One alternative is that nobody thought that an ex-Confederate would get elected President or Vice-President, and thus Section Three was not written to cover those positions. But this strikes me as unlikely.

Posted by Gerard Magliocca on August 19, 2020 at 03:43 PM | Permalink


My thought is a brute political one: if tens of thousands, or a couple hundred thousand, people from a single Congressional District, or even maybe a million in a single state in a Senate race, vote for someone subject to removal under Section 3, that will only upset that small minority. But how can you refuse to seat someone who over half the country voted for for President? The framers of Section 3 may have seen the potential for abuse and reignition of the civil war, related to slavery and reconstruction or related to some other issue dividing the country, and wisely excluded the Presidency.

Posted by: RComing | Aug 31, 2020 4:58:57 PM

I would also take a look at Article VI that this seems to parallel.

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Posted by: Joe | Aug 24, 2020 1:37:31 PM

Why do they keep deleting El Roam's comments? Who is trying to rewrite history?

Posted by: theRealAnonymous | Aug 19, 2020 8:19:21 PM

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