[Editor’s note from Ryan Goodman: With attention turning to Congress’s ability to use section 3 of the 14th Amendment to disqualify former President Donald Trump and others involved in the insurrection on Jan. 6 from holding future office, I asked a foremost legal historian on the 14th Amendment, Mark A. Graber, for his views on the topic. Professor Graber sets the stage with some historical context, and then addresses specific questions that I posed to him.]
In late December 2020, I concluded a fifty-page book chapter on the drafting of Section 3 of the Fourteenth Amendment that began by declaring “Section 3 is the most forgotten provision of the forgotten Fourteenth Amendment.” Less prophetic words were never spoken.
My present book project, The Forgotten Fourteenth Amendment, explores what Republican members of the Thirty-Ninth Congress were doing when they drafted the Fourteenth Amendment. The project diverges from the numerous published works on the Fourteenth Amendment in two important respects. First, the manuscript maintains that, Representative John Bingham of Ohio aside, the Republicans who drafted the Fourteenth Amendment were far, far more concerned with changing the basis of representation (Section 2), limiting the political participation of former confederates (Section 3), and making certain financial guarantees (Section 4) than with providing additional constitutional protections for individual rights (Section 1). Second, the manuscript focuses on how Republicans thought the Fourteenth Amendment would work rather than exclusively on what they thought the text meant. My concern is with what Republicans perceived to be the central problems requiring constitutional amendment in the wake of the Civil War and the conceptual apparatus they employed to resolve those problems. My work does not ask, as much contemporary originalism does, how Republicans would have resolved the problems we have today if Republicans had access to our conceptual apparatus. This approach to the Fourteenth Amendment, which might be called historical originalism as opposed to legal originalism, sheds some light on what Republicans in 1866 might say about contemporary problems, but also highlights the difficulties inherent in translating efforts to solve problems created by the aftermath of the Civil War into efforts to solve problems created by the aftermath of the Trump presidency.
The record made by the Thirty-Ninth Congress reveals far less about Section 3 than any other provision in the Fourteenth Amendment. Republicans when setting out the conditions for restoring former confederate states to the Union demanded, in rough order of priority, a constitutional change in the basis of apportionment (Section 2), constitutional provisions respecting the state and federal debt (Section 4), constitutional or statutory provisions limiting confederate participation in politics (Section 3), constitutional or statutory provisions protecting the rights of former slaves and white Unionists (Section 1), and a constitutional ban on secession that did not become part of the final Fourteenth Amendment. Before considering the omnibus Fourteenth Amendment, Congress debated stand-alone versions of Section 1, Section 2 and Section 4. These debates provide some perspective on Republican thinking on the meaning and implementation of the rights, apportionment and financial provisions in the final Fourteenth Amendment. Congress did not, however, consider a stand-alone version of Section 3. What Republicans thought that provision meant and how they planned to implement that provision must be determined primarily from the debates over the omnibus Fourteenth Amendment. At least two problems exist with making any confident inferences on both meaning and implementation.
The first version of Section 3 was born in chaos. On Wednesday, April 25, 1866, the Joint Committee on Reconstruction reached agreement on an omnibus Fourteenth Amendment. The centerpiece of that text was the provision mandating black suffrage by 1876. The Republicans on that committee immediately learned from their peers that this provision would not fly. Desperate to produce an amendment by Monday, April 30 the Joint Committee hastily cobbled together a new omnibus draft on Saturday, April 28. The centerpiece of that text was Section 2, which the Republican members of the committee thought would induce former confederate states to accept black suffrage by reducing state representation in the House of Representatives and Electoral College in proportion to disenfranchised males over 21. Section 2 of the new omnibus text could not be implemented until after the next census. To ensure loyal control of state governments until that time, the Joint Committee added Section 3, which disenfranchised until July 4, 1870 all persons who gave “aid and comfort” to the rebellion.
The second version of Section 3 was reared in secret. The Joint Committee’s Section 3 engendered substantial debate among Republicans in Congress. Republicans disputed how that provision would be implemented and whether that provision would be effective. In mid-May Republican Senators held a three-day caucus to resolve disputes over Section 3 (and Section 2). We know the subjects of that caucus (largely Section 3), but not the details of what was said. No one leaked then or later in memoirs. When that caucus ended, Senator Jacob Howard of Michigan proposed, with a few tweaks, the Section 3 we have today. That Section 3 replaced temporary disenfranchisement with a permanent officeholding ban (both federal and state) while limiting the subjects of the ban to persons who, holding certain offices, had previously taken an oath to support the Constitution. Republicans fell in line immediately. Party members responded to Democratic criticisms, but did not discuss the meaning of the Republican Senate Caucus’s Section 3 or how to best implement that provision.
Determining how members of the Thirty-Ninth Congress would resolve contemporary problems is also difficult because the Republicans responsible for the Fourteenth Amendment had very narrow time horizons. The main object of their Fourteenth Amendment was to empower and protect the people who remained loyal to the Union during the Civil War. Republicans assumed the constitutional problems the Fourteenth Amendment was meant to solve would largely vanish once either white Unionists or a biracial coalition of white Unionists and former slaves controlled southern governments and sent loyal representatives to Congress. Section 3 would, of course, apply to any future insurrection. Nevertheless, Republicans were focused almost exclusively on preventing confederates from regaining power. They did not concern themselves with what might constitute a future insurrection once the slave power had been permanently interred.
1. Did the framers of the 14th Amendment envision it could be implemented by legislation whereby Congress would be able to identify one or more individuals who are disqualified under the insurrection clause? Or does the Amendment require setting up an adjudicative procedure for a court or other tribunal to issue a judgment as to whether it applies to specific individuals as Congress did with the First Ku Klux Klan Act?
2. Do sections 3 and 5 of the 14th Amendment allow for implementation through a joint resolution of both houses of Congress (and thus not subject to the filibuster in the Senate)? Put another way, did the framers envision that implementing legislation would require presentment for signature by the president?
Republicans detailed how they planned to implement the Joint Committee’s Section 3, which disenfranchised in federal elections held before July 4, 1870 “all persons who voluntarily adhered to the late insurrection, giving it aid and comfort.” Proponents of the Joint Committee’s Section 3 insisted that provision could successfully be implemented by congressional legislation establishing a registry of ineligible voters. These Republicans clearly contemplated legislation, laws that were passed by both houses of Congress and signed by the President. Representative Thaddeus Stevens of Pennsylvania, the Republican leader in the House and a member of the Joint Committee, stated:
You must legislate for the registry such as they have in Maryland. It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have a right to do.
Representative Samuel Shellabarger of Ohio agreed. “You can have registry laws,” he asserted. “Upon this registry list you may place the names of men who are to be disqualified, and you may also have the names of all who are qualified to vote under the law.”
Republican proponents of the Joint Committee’s Section 3 thought each House would be authorized to determine whether a person claiming a seat had been elected by ineligible voters. Representative Nathaniel P. Banks of Massachusetts declared, “In regard to the election of members of Congress here is the tribunal. In regard to the election of Senators, the Senate at the other end of the Capitol is the tribunal.” Republicans agreed that the Joint Committee’s Section 3 barred former confederates from serving on the Electoral College. No one specified how that was to be implemented, but a fair inference might be that each House would make that decision when receiving electoral college votes from the states.
In short, outside the context of seating members and receiving Electoral College votes, the assumption was that Congress would proceed through normal legislation, naming names, and that legislation would become law if signed by the president or, if vetoed, approved in a second vote by 2/3s of the members of both Houses.
There was no, and I mean no, Republican discussion on how to implement the Republican Senate Caucus’s Section 3, which banned from federal and state offices certain persons who had taken an oath to support the Constitution. Republicans responded only to Democratic criticisms of what became the final version of Section 3 and no Democratic worried that the Republican Senate Caucus’s Section 3 might be unworkable. We might infer that Republicans thought the same means for implementing the Joint Committee’s Section 3 (disenfranchisement) could be employed for the Republican Caucus’s Section 3 (ban on office-holding), but that is an inference from the debates that has no foundation one way or the other in any speech given by any member of the Thirty-Ninth Congress.
3. Some commentators suggest that Congress’s naming specific individuals as disqualified from office under the 14th Amendment would be an unconstitutional bill of attainder. What does the history of the provision tell us about that specific claim?
Democrats (and the most conservative Republicans) in Congress claimed that Section 3 was an unconstitutional bill of attainder. Their arguments anticipated what has become known as the basic structure doctrine. Contemporary courts in India and Germany had declared that constitutional amendments are valid only when consistent with the fundamental principles of the constitution. White supremacists made the same argument in 1866. Leading Democrats insisted that the constitutional commitment to procedural justice forbade Americans from passing a constitutional amendment that authorized bills of attainder, even if that amendment was passed using the procedures for amendment set out in Article V.
Republicans vigorously rejected claims that Section 3 was a bill of attainder. Bills of attainder imposed punishments. Section 3 merely changed the qualifications for public office. If no constitutional problem existed with laws declaring future dogcatchers could not suffer from caniphobia, then no constitutional problem existed with a constitutional amendment declaring that future officeholders could not have participated in an insurrection against the United States. Senator John Henderson of Missouri declared, “this is an act fixing the qualifications of officers and not an act for the punishment of crime.” Numerous Republicans emphasized this distinction between punishments and qualifications. Trumbull pointed out that preexisting constitutional bans on officeholding were not punishments. “Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life,” he queried, “because by the Constitution he is ineligible to the Presidency?” Senator Lot M. Morrill of Maine pointed to “an obvious distinction between the penalty which the State affixes to a crime and that disability which the State imposes and has the right to impose against persons whom it does not choose to intrust with official station.” The ban on office holding, Senator Waitman T. Willey agreed, is
not . . . penal in its character, it is precautionary. It looks not to the past, but it has reference, as I understand it, wholly to the future. It is a measure of self-defense. It is designed to prevent a repetition of treason by these men, and being a permanent provision of the Constitution, it is intended to operate as a preventive of treason hereafter by holding out to the people of the United States that such will be the penalty of the offense if they dare commit it. It is therefore not a measure of punishment, but a measure of self-defense.
Republicans also rejected the notion of unconstitutional amendments. Henderson pointed out that nothing in the Constitution prohibited Americans from ratifying amendments making exceptions to the Constitution’s ban on bills of attainder and ex post facto laws. He asserted, “They tell us that it is a bill of attainder. Suppose it were; are the people in their sovereign capacity prohibited from passing a bill of attainder? . . . It is said that the law is ex post facto in its character; what if it is? Have not the people the right, by a constitutional amendment, to enact such a law?”
4. How much weight should we give to Chief Justice Salmon Chase’s interpretation of the 14th Amendment in Griffin’s Case (1869)? Relatedly, it appears that Justice Chase’s analysis was predicated on a claim that section 3 imposes a punishment. He wrote, “It can hardly be doubted that the main purpose was to inflict … exclusion from office as a punishment for the offense.” Is that a necessary assumption in his analysis, and is the assumption correct?
The weight to be given Justice Salmon Chase’s narrow interpretation of Section 3 in Griffin’s Case raises both legal and historical questions. American constitutional law quite frequently gives substantial weight to constitutional opinions that are inconsistent with what the persons responsible for a constitutional amendment may have expected, intended, or meant. Consider the contemporary significance of the Slaughter-House Cases (1872), which neutered the privileges and immunities clause of Section 1 that most Republicans in 1866 thought was the most important rights provision in the Fourteenth Amendment. On questions concerning the weight of precedents, the legal historian must defer to the doctrinalist, having little more to offer than any other citizen.
What legal history demonstrates is that Chase is an unreliable guide to what Republicans in the Thirty-Ninth Congress understood they were doing when they framed Section 3. Chase repeatedly urged Republicans to drop Section 3 entirely (he also had little use for Section 1). His letters described Section 3 as “overloading the ship with amendment freight” and “unnecessary to the main object, reorganization of the Union by the restoration of just terms of the States in rebellion.” Chase appears to have made even more hostile arguments that have not been recorded for history. Given Chase’s antipathy to Section 3, the precedential value of Griffin’s Case should not be rooted in any sense that Chase had any particular access and any particular commitment to what Republicans had in mind when they drafted the constitutional ban on officeholding.
In this vein, one might note Chase’s position in the Jefferson Davis trial that Section 3 eliminated every other punishment for treason. Senator James Doolittle of Wisconsin made this claim in a speech opposing Section 3 and the entire Fourteenth Amendment. No Republican who voted for the Fourteenth Amendment took the Doolittle/Chase position in part because, as noted above, Republicans proponents of the Fourteenth Amendment repeatedly denied that Section 3 imposed a punishment. Chase’s claim to the contrary is another example of his hostility to Section 3, and not an instance of his implementing faithfully the handiwork of Republicans in Congress.
5. Section 3 of the 14th Amendment refers to individuals who “engaged in insurrection.” Do those terms apply to someone who incited an insurrection? Would incitement constitute giving “aid and comfort” under the 14th Amendment?
6. Should the scope of section 3 of the 14th Amendment be limited to the definition of “insurrection,” “incitement,” and “aid and comfort” as defined by federal criminal law (eg, 8 U.S. Code § 2383)?
Both questions 5 and 6 are rooted in a way of thinking about constitutions that gained hegemony in American constitutional thought only in the late nineteenth and early twentieth centuries. On this view, which continues to structure contemporary constitutional thought in the United States. constitutions are legal documents whose meaning is best interpreted by legal authorities. Persons who draft a constitution provision that speaks of “insurrection,” “incitement,” or, for that matter, “freedom of the press” have in mind a fixed legal meaning that courts are expected to implement. From this legal perspective, the question “what did the persons responsible for Section 3 mean by ‘insurrection’?” makes sense, just as the more common question “what did the persons responsible for Section 1 mean by ‘equal protection’?”
Many, not all, Republicans in 1866 were popular constitutionalists who believed the meaning of constitutional provisions was worked out at least partly through politics rather than through legal proceedings. Consider Lincoln’s famous claim in his First Inaugural that the people could not cede control over the meaning of constitutional provisions to the Supreme Court. Elections, Lincoln indicated, ultimately determined whether the Constitution was best interpreted as banning slavery in the territories. The Republicans who drafted the Fourteenth Amendment had a similar political notion of how constitutional meaning was determined. If the Fourteenth Amendment worked as they expected, the national government would be controlled by persons of unquestioned loyalty to the government. These representatives could be trusted to determine what constituted an insurrection and what sort of participation in an insurrection merited disqualification under Section 3. No need existed to hamstring them with a technical legal definition of “insurrection” or “participation” that might turn out to be inconsistent with the constitutional purpose of giving Congress the tools necessary to maintain loyal control of the state and federal government. We might make an analogy to a tenure committee in a functional department (does one exist?). The standards are quite vague (original professional work of high quality), but the members of the committee because of their rectitude and expertise can be trusted to distinguish tenurable work from dreck.
A fair case can be made that the government of the United States no longer works as either the first or second framers anticipated. That, however, is good reason for doing what we think is best rather than trying to figure out how people who failed to anticipate contemporary political developments might act in our times.
7. Section 3 of the 14th Amendment can be used to bar individuals from “hold[ing] any office, civil or military, under the United States.” Do those terms bar individuals from the office of the presidency?
Republicans in 1866 almost certainly thought the Section 3 bar on officeholding extended to the presidency and vice-presidency. Republican proponents of the Joint Committee’s Section 3 thought that Congress could treat as illegal any former Confederate who participated in the Electoral College. During the debates over the Joint Committee’s Section 3, Representative Thomas D. Eliot of Massachusetts asked fellow Republicans, “Shall our enemies and the enemies of the Government, as soon as they have been defeated in war, help to direct and to control the public policy of the Government.” Representative Rufus P. Spaulding of Ohio agreed that such men should not “make laws for the loyal people of the country.” Representative Robert C. Schenck of Ohio declared, “those who have proven false traitors and have raised their parricidal hands against the life of the country, who have attempted to strike down our Government and destroy its institutions, should be the very last to be trusted to take any share in preserving, conducting, and carrying on that Government and maintain those institutions.” These comments could be multiplied ad nauseum. No Republican made any statement that suggested a presidential exception to Section 3. Trumbull, as noted above, used the presidency when examining why changing qualifications was not a punishment. Stevens, also as noted above, used the presidency as well in discussing the Joint Committee’s draft Section 3. In the absence of any statement even hinting the contrary, no Republican could have believed that traitors should not become members of Congress, but ought to be allowed to be President of the United States.
8. Some may question whether the historical purpose of section 3 applies to the events on January 6 and the President’s alleged actions. How much should be read into the fact the article of impeachment cited and quoted from section 3 in reference to President Trump’s actions?
Impeachment and disqualification under Section 3 of the Fourteenth Amendment require distinct procedures. An impeached president may be convicted only by a two-thirds vote of the Senate. A president may be disqualified under Section 3 only by legislation, which must pass both Houses of Congress and be signed by the then sitting president. Section 3 of the Fourteenth Amendment is evidence that Republicans in 1866 thought “engaging in insurrection and rebellion” against the United States is an offense that should disqualify a person from office, but that is the only relevance of Section 3 for the impeachment process. The inclusion of Section 3 in the impeachment indictment and the subsequent vote in the Senate indicate that a majority of representatives and senators believe President Trump is subject to disqualification under Section 3, but such disqualification requires a legislative proceeding separate from impeachment.
Putting aside Mr. Trump’s behavior, Reconstruction Republicans would have had no problem applying Section 3 to some other participants in the mob that invaded Congress on January 6. According to press reports, some members of the mob were former officers in the military forces of the United States. If, like Robert E. Lee, those former officers took an oath to support the Constitution of the United States, Congress by law may declare them ineligible for future state and federal office.
NEW: 9. Section 3 applies to any person “who, having previously taken an oath … as an officer of the United States.” Does that clause apply to the Office of the President of the United States?
During the controversy over the emoluments clause, Mr. Trump’s lawyers claimed that the president is not an officer of the United States and, therefore, not subject to the ban on accepting gifts from foreign governments. The overwhelming weight of scholarship and evidence is against this proposition. Norman Eisen, Richard Painter and Laurence Tribe point out,
“[T]he text of the Constitution . . . repeatedly refers to the President as holding an “Office.” For example, Article II, Section I provides that the President “shall hold his office during the term of four years.” It further provides that no person except a “natural born citizen . . . shall be eligible to the office of President,” and addresses what occurs in the event of “the removal of the President from office.”
Add the obvious point that a person who holds an office is an officer (three years of law school for this?) and the declaration in Article I, Section 7 that a person impeached and convicted may be disqualified from holding any “Office of Honor” (does that mean the presidency is the one office an impeached president is eligible for) and one has as certain an argument as exists in constitutional law that the presidency is an office of the United States and the President is an officer of the United States.
Common sense in 1787 remained common sense in 1866. Republicans in the Thirty-Ninth Congress repeatedly referred to the President as an officer. Senator Benjamin Wade of Ohio declared, “the President is a mere executive officer.” Representative Samuel McKee of Kentucky, when proposing a stand-alone version of what became Section 3 of the Fourteenth Amendment, began his proposition by declaring “No person shall be qualified or shall hold the office of President or Vice President of the United States.” None of the hundreds of uses of “office” or “officer” in the 1866 Congressional Globe indicate that any Republican could have made any sense of the alleged distinction between “an office under the United States” and an “officer of the United States” other than that the former referred to a position and the latter referred to the occupant of that position.