The Meaning and Ambiguity of Section Three of the Fourteenth Amendment

Abstract

Section Three of the Fourteenth Amendment disqualified anyone from serving in the House or Senate, or as a presidential elector, if they had betrayed their oath of fealty to United States and joined the Confederacy during the American Civil War. Whether Section Three accomplishes anything more remains unclear as a matter of history and ambiguous as a matter of constitutional text. Section Three 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.

At the time of the Fourteenth Amendment, congressional precedent and the leading constitutional authority denied that the office of President of the United States was a "civil office under the United States." This was standard understanding of the Senate's ruling in Blount's Case (1799) and this was Joseph Story's authoritative analysis in his massively influential Commentaries on the Constitution. No framer or ratifier aware of Blount's Case and Story's analysis would presume Section Three's reference to "any office, civil or military, under the United States" referred to the office of President.

One prior draft of Section Three expressly named the office of the President of the United States and expressly applied to both past and future rebellions. Congress, however, omitted all of this language from the final version of Section Three. This final language led the best lawyer in the House to assume that the text did not include the office of the President. Although a single member disagreed, their exchange went unreported in the press, leaving open the possibility that less sophisticated members of the public might also read the text as excluding the office of the President.

Such a reading would not have been absurd, since no one worried about the American people electing a former rebel as President of the United States. The actual concerns involved influential rebels using their remaining local popularity to secure a position in Congress or as a presidential elector. Section Three addressed all of these realistic concerns. We do not know what the ratifiers thought, however, because there is no evidence of any ratifier discussing whether the text included the office of the President.

In sum, on multiple key matters, the original understanding of Section Three remains historically unclear and textually ambiguous.

Keywords: Constitution, Fourteenth Amendment, Election Law, Originalism