The current effort to disqualify Donald Trump under Section Three of the Fourteenth Amendment makes for high-stakes politics, but bad history. Section Three of the Fourteenth Amendment disqualified certain people from serving in the House or Senate, or as a presidential elector, if they had betrayed their oath of fealty to the United States and joined the rebellion during the American Civil War. Whether Section Three accomplishes anything more remains unclear as a matter of both history and constitutional text.
To date, the debate over Section Three has taken place without any systematic investigation of either the drafting process or the ratification debates. Scholars, lawyers, and judges have been flying (historically) blind—a situation I hope to change.
The text declares that “[n]o 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 . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion.” The text does not expressly (1) apply to future rebellions or insurrections, (2) apply to persons elected as President of the United States, (3) apply to persons seeking to qualify as a candidate for the Presidency, or (4) indicate whether the enforcement of Section Three requires the passage of enabling legislation.
The omission of express language on these issues is significant because prior publicly announced drafts did expressly apply to present and future rebellions, did expressly name the office of the President of the United States, and did expressly bar certain persons from either holding or qualifying for office. For example, the very first draft proposed:
No person shall be qualified or shall hold the office of President or vice president of the United States, Senator or Representative in the national congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate, who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the United States.
The final draft of Section Three omitted the express reference to being “qualified,” the express reference to the office of the President of the United States, and any reference to future rebellions (those “hereafter”). Instead of disqualifying someone elected President by the Electoral College, the final draft prohibits any oath-violating rebel from serving in the Electoral College.