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Tuesday, August 11, 2020

Section Three of the Fourteenth Amendment

Section Three of the Fourteenth Amendment provides: 

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.

There is almost no scholarly commentary on this provision, though my friend Mark Graber is writing a book on the Fourteenth Amendment that will look at this part of the Constitution more closely. I've started looking into what happened to Section 3 after ratification, and I've found some very interesting things. Enough for a paper. (And you thought every nook and cranny of the Constitution was covered.)

  1. Was Section Three self-executing? 

Chief Justice Chase thought that the answer was no. In a circuit opinion he wrote in 1869, he said that Congress needed to legislate to make Section 3 operative. The alternative was that every decision taken by a now-ineligible official was void, and this would mean that many criminal convictions would be invalid. He said that this sort of serious disruption should not be accepted when an alternative construction was available.

2. Was Section Three a punishment? 

Chief Justice Chase said yes. He thought that Jefferson Davis could not be tried for treason because the Double Jeopardy Clause was implicated by Section Three. The issue never reached the Supreme Court, though, as Davis was pardoned by Andrew Johnson.

3. How was this enforced?

In 1870, Congress passed a law stating that the relevant United States attorney was authorized to bring an action to unseat any official covered by Section Three whose disability was not removed by Congress. Moreover, the law said that these actions were to be given priority on the docket of a federal court and that it was a misdemeanor to hold the office illegally. Many actions were then brought (against more than one Justice of the Tennessee Supreme Court, for example).

4. How did removing the disability work?

People applied to Congress for a pardon. (There was even a standard form.) In fact, some people received a pardon before the Fourteenth Amendment was even ratified. These "pardons" were presented to and signed by the President, though there was no agreement on whether that was required.

5. And then?

In 1871, President Grant asked Congress to grant a broad Section 3 amnesty. Congress (for reasons I don't yet fully understand) did so in 1872 with John Bingham's backing. Charles Sumner tried to attach his civil rights bill to the amnesty (as Michael McConnell explained in his article on Brown and the original understanding) which led to protracted debate.

Finally, in 1898 (with the Spanish-American War in the offing), Congress gave amnesty to those not covered by the 1872 Act as a symbolic gesture. 

And so the next article begins.


Posted by Gerard Magliocca on August 11, 2020 at 08:52 PM | Permalink


I’d love to read any new thoughts on this topic as it relates to the events in and around the US Capitol on January 6, 2021.

Posted by: heathermsc | Jan 23, 2021 11:44:51 AM

If you're interested in diving deeper into this, I have recently written an article that I am submitting for publication this cycle.

My pre-submission draft is available on SSRN, here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3749407

Would be happy to talk about it with you!

Posted by: Myles Lynch | Jan 6, 2021 8:01:58 PM

That is a very important lesson to be learned from musicals. Although you could also have the takeaway that rocking an awesome pair pf shoes will sic evil witches and flying monkeys on you…

Posted by: fashion store | Nov 16, 2020 4:44:33 AM

Dear gracious, we're going to relitigate the Civil War and Reconstruction...


Posted by: thegreatdisappointment | Aug 13, 2020 12:23:08 PM

"He thought that Jefferson Davis could not be tried for treason because the Double Jeopardy Clause was implicated by Section Three."

Chase might not be the median vote here. He also dissented in Bradwell v. Illinois. It seems to me a qualification for office. I'm unsure if it really is a punishment. The special rule to remove it adds a special quality to it as well. And, what is the breadth of the argument? Can someone be prosecuted for something more than "insurrection or rebellion" such as abuse of prisoners or the like? I'm sure something of that nature could be found for the president of the Confederacy.

The breadth does suggest the provision is not a dead letter. Someone who previously took an oath could in some fashion be involved in an "insurrection or rebellion" though again I wonder what the breadth of that is.

Posted by: Joe | Aug 13, 2020 11:04:01 AM

This is a fantastic step by step process for successful blogging. Outstanding guide that anyone can benefit from even if you have an established blog. Thanks so much for sharing your wisdom and experience.

Posted by: lisa | Aug 13, 2020 8:48:59 AM

Interesting, and well organized. By the way, I have come across very interesting argument, about the unconstitutionality of the 14th amendment ( itself, the ratification process I mean). Here:




Posted by: El roam | Aug 12, 2020 6:41:55 AM

Super interested in reading this! Interesting question (1) whether Matt Shea in Washington State should be kicked out of the state legislature under Section 3 (see, e.g., https://www.seattletimes.com/seattle-news/politics/washington-state-rep-matt-shea-engaged-in-domestic-terrorism-against-the-u-s-says-state-house-inquiry/) and (2) whether private citizens could sue to have him removed (without a U.S. Attorney).

I got weirdly obsessed with this a few months ago (after reading Foner's latest), and was puzzled by Chase's reasoning. It seems to lack textual basis and, more importantly, is logically unsound: "Congress must affirmatively disqualify someone from holding office . . . otherwise everything they've ever done in office would be a nullity"? Not at all. Seems equally plausible that an ineligible person occupies the office and carries out official acts, until someone (say, a defendant in a particular case . . . or voters in a particular jurisdiction) challenge them.

But I gave up pretty quickly; eager to see what you find!  

Posted by: Thomas Frampton | Aug 12, 2020 1:51:38 AM

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