What the framers said about the 14th Amendment's disqualification clause: Analysis

It is being used to challenge Trump in some states from being on the ballot.

December 29, 2023, 5:54 PM

The intent of the 14th Amendment's disqualification clause is central to the debate over whether former President Donald Trump's name should be stricken from GOP primary ballots now that the issue has landed at the steps of the Supreme Court.

Judges and officials across many states around the country are now grappling with language that was written a year after the end of the Civil War. The words "insurrection" and "rebellion" had certain meanings to those who had them added to the Constitution, and a key question for arbiters now is whether the language drafted a century-and-a-half ago should be applied to Trump's role in the Jan. 6 riot.

As it originally passed the House, the 14th Amendment's third section was not nearly as broad as the version now being invoked to strike Trump's name from the ballot. It was narrowly crafted to apply only to those who willingly took part in the Civil War, and it was only meant to deprive former confederates of their right to cast ballots in federal elections. It also had an expiration date.

PHOTO: Former President Donald Trump greets the crowd at a campaign rally, Dec. 16, 2023, in Durham, N.H.
Former President Donald Trump greets the crowd at a campaign rally, Dec. 16, 2023, in Durham, N.H.
Reba Saldanha/AP

"Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States," the original, House-passed version read, according to congressional records of the era.

The Senate spent several days debating the House-passed amendment in the spring of 1866. While the birthright citizenship provisions in Section 1 earned a lot of time in debate, Section 3 was also the subject of an intense back-and-forth on the floor. The transcripts can be read in the Congressional Globe, a forerunner to the Congressional Record.

Sen. Jacob Howard of Michigan, who led the Republicans in debate, insisted that it wouldn't be enough to deprive the former confederates of their right to vote in federal elections -- he wanted them banished from government service altogether.

"I should prefer a clause prohibiting all persons who have participated in the rebellion, and who were over twenty-five years of age at the breaking out of the rebellion, from all participation in offices, either Federal or State, throughout the United States," Howard said on the Senate floor on May 23, 1866. "I think such a provision would be a benefit to the nation."

After about a week of discussions with colleagues, Howard offered the Sec. 3 language that was ultimately ratified. Howard's revision removed specific references to "the" rebellion and added an important qualifier: those who were to be excluded from government service would have to have violated prior oaths to defend the constitution by having "engaged in insurrection or rebellion against [it] or given aid or comfort to the enemies thereof."

Senators rejected various attempts to re-insert the word "voluntarily," or to restrict the exclusion to those who violated their oaths during the time they were still serving in office.

There was a great deal of concern voiced in debate that Howard's exclusion clause might leave the South ungovernable, with so many confederates poised to be disqualified from serving, even in state posts. Opponents expressed fear that the provision might alienate Union-loyal supporters in state legislatures. Nevertheless, the version Howard introduced made it through the entire ratification process and became effective on July 9, 1868.

In 2024, the originalists on the Supreme Court will likely seek to determine whether the ratifiers could have had it in mind 158 years ago that Sec. 3 might not only be applied to the "late insurrection," as the House-passed version originally had it, but also to any other rebellion that might later take place.

But originalists might take note of what Sen. Peter Van Winkle of West Virginia said as he sought to have the threshold for congressional amnesty in Howard's version lowered to a simple majority, rather than two-thirds.

PHOTO: Former President Donald Trump greets the crowd at a campaign rally, Dec. 16, 2023, in Durham, N.H.
Former President Donald Trump greets the crowd at a campaign rally, Dec. 16, 2023, in Durham, N.H.
Reba Saldanha/AP

"This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood," Van Winkle said at the time.

It's also worth noting that there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as "officer(s) of the United States," the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?

"Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.

Maine's Lot Morrill jumped in to clarify.

"Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.

Earlier this week, the Colorado Republican Party asked the Supreme Court to answer whether the office of the president is covered by the amendment. Colorado district judge Sarah Wallace ruled last month that it is not. The Colorado Supreme Court overturned her finding last week and a majority of Colorado's seven justices wrote that the former president "engaged in insurrection."

Trump is facing more than a dozen tests over his ballot eligibility under the 14th Amendment in various state and federal courts, with challenges or appeals pending in about 15 states.

Michigan, Minnesota and California have kept Trump on their ballots despite efforts to disqualify him.

In a statement Thursday following the decision by Maine Secretary of State Shenna Bellows ruling Trump would not appear on the Republican 2024 ballot, Trump campaign spokesman Steven Cheung said they would "quickly file a legal objection in state court."

He added that Bellows was a "hyper-partisan Biden-supporting Democrat who has decided to interfere in the presidential election."

Trump is expected to appeal the decision to disqualify him from the Colorado ballot to the Supreme Court.

"The Colorado Supreme Court issued a completely flawed decision tonight .... We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits," Cheung said in a statement, in part, after the ruling.

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