Graber on the Section 3 of the 14th Amendment

Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section 3 of the Fourteenth Amendment: Is Trump's Innocence Irrelevant? which is forthcoming in the Maryland Law Review:

Much debate over whether former President Donald Trump should be disqualified under Section 3 of the Fourteenth Amendment focuses on matters tangential to whether the events of January 6, 2021, were an insurrection and whether Trump engaged in that insurrection. Debate centers on the role of Section 3 in the Reconstruction Project, whether Section 3 is self-executing, whether disqualification is a punishment that requires a criminal conviction, whether Section 3 is restricted to the Civil War, whether Presidents are exempt from disqualification, and whether the Presidency is exempt from disqualification. The existing literature rarely delves deeply into the historical sources, either assuming that the persons responsible for Section 3 were largely working from a tabula rasa or, in the manner of advocates, cherry-picking favorable citations, often wrenching them out of context.

The following pages are part of a project that engages in an exhaustive survey of the Congressional Globe, case law, legal treatises, and contemporaneous commentaries to determine how persons when Section 3 was framed and ratified would have responded to contemporary questions about the implementation of that constitutional provision. This survey supports the following conclusions. First, the constitutional disqualification of government officials who violated their oath of office was central to the Fourteenth Amendment’s goal of ensuring government by persons who could be trusted to be faithful to the Constitution. Second, with one notable exception, Americans during the 1860s regarded Section 3 as self-executing. Third, Section 3 when framed was thought to be an additional qualification for officeholding and not a punishment for crime. Fourth, Section 3 of the Fourteenth Amendment was intended to bar from office any past or present state or federal officeholder who engaged in an insurrection, not just persons who participated in what members of the 39th Congress referred to as “the late rebellion.” Fifth, the persons who framed Section 3 thought Presidents of the United States are officers of the United States who are disqualified from holding present or future federal or state offices if they engage in an insurrection after or while holding office. Sixth, the persons who framed Section 3 thought that Presidency of the United States was among the offices under the United States that past and present officeholders who participated in insurrections were disqualified from holding.  

This paper speaks of what certain persons responsible for the Fourteenth Amendment thought and did rather than the original meaning of Section 3. Original meaning is a freighted term and often is used to compel contemporary constitutional decisions. In many cases, while we can determine what particular framers thought about some matters—for example, about whether Section 3 is self-executing—no good evidence exists as to what the average person thought or if the average person had any thoughts on the subject at all. Moreover, while the findings below are relevant to contemporary constitutional decision-making, they should not be decisive. The dead do not rule the living. The question for the present is whether any constitutional or political change has taken place between the time the Fourteenth Amendment was framed and ratified and the present that would justify acting inconsistently with the framing expectation that oath-breaking Presidents should be disqualified under Section 3.

--Dan Ernst