Section Three of the Fourteenth Amendment: Our Questions, Their Answers

55 Pages Posted: 4 Oct 2023

See all articles by Mark Graber

Mark Graber

University of Maryland - Francis King Carey School of Law

Date Written: October 3, 2023

Abstract

The Congressional Globe, case survey, and constitutional commentaries clearly support 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 Three as self-executing. Third, Section Three when framed was thought to be an additional qualification for officeholding and not a punishment for crime. Fourth, Section Three 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 Thirty-Ninth Congress referred to as “the late rebellion.” Fifth, the persons who framed Section Three thought presidents of the United States are officers of the United States who are disqualified from holding future federal or state offices if they engage in an insurrection after or while holding office. Sixth, the persons who framed Section Three thought that presidency of the United States was among the offices under the United States that past and present officeholders who participation in insurrections were disqualified from holding. Seventh, an insurrection at the time Section Three was framed consisted of two or more persons resisting the implementation of any law by force, violence and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Eighth, the events of January 6, 2021 are consistent with the legal understanding of insurrection in 1866. Ninth, constitutional authorities before, during and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection as having engaged in the insurrection, even if that person did not personally commit an act of violence or were far from the scene of the violence, force, and intimidation. Tenth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol are true, Donald Trump participated in the insurrection that took place on January 6, 2021.

Keywords: Insurrection, Section Three, Reconstruction, Fourteenth Amendment, officer

Suggested Citation

Graber, Mark, Section Three of the Fourteenth Amendment: Our Questions, Their Answers (October 3, 2023). U of Maryland Legal Studies Research Paper No. 2023-16, Available at SSRN: https://ssrn.com/abstract=4591133 or http://dx.doi.org/10.2139/ssrn.4591133

Mark Graber (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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