« Number of FAR Forms in First Distribution Over Time - 2020 | Main | Podcast on "Clauses and Controversies" »

Thursday, August 20, 2020

Section Three Esoterica

Section Three of the Fourteenth Amendment was used more than once to exclude people from Congress. In 1870, North Carolina chose Zebulon Vance, who was a state prosecutor before the Civil War and Governor during the War, as its Senator. The Senate refused to seat him. More interesting is that Victor Berger, a self-styled Socialist congressman during World War I, was excluded from the House of Representatives for his opposition to the war and conviction (later overturned) under the Espionage Act. The House concluded that Section Three made Berger ineligible because he had "given aid or comfort to the enemies" of the United States. This is the only time that Section was used to exclude after Reconstruction.

These example raise an unclear question about Section Three. Is it an additional qualification for office or not? No court has resolved this issue. This matters because a qualification is not covered by the Supreme Court's decision in Powell v. McCormack. It's also not clear that Section Three (at least as applied by Congress to one of its alleged members) is subject to judicial review.

Posted by Gerard Magliocca on August 20, 2020 at 02:09 PM | Permalink


After the sentence was overturned, Berger was elected again and seated.

Powell v. McCormack cites the Berger case.

Posted by: Joe | Aug 21, 2020 11:17:49 PM

The comments to this entry are closed.