As a pro-Trump mob stormed the Capitol last week, Eric Foner, one of the nation’s premier Civil War historians, watched in horror.
The 14th Amendment, ratified in 1868, is most famously known for providing citizenship and equal protection under the law to anyone born or naturalized in the United States, including formerly enslaved and free Black people.
But as calls emerged almost immediately for President Trump’s ouster and ban from office via the 25th Amendment or impeachment — neither course is expeditious or easily accomplished — Foner began pondering a different remedy provided by Section 3 of the amendment, which says:
No 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, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
“Nobody really had heard about this except people like me who study this era,” said Foner, a Columbia University professor and author of numerous books on the Civil War, Reconstruction and Abraham Lincoln. “And then I had other historians emailing me saying, ‘Wouldn’t Section 3 apply here if Trump is guilty?’ ”
Over the weekend, interest grew in Section 3 beyond the historical realm, with at least one congresswoman broaching the strategy to bar Trump from holding federal office. Then House Speaker Nancy Pelosi (D-Calif.) warned that the House would move forward with impeaching Trump for a second time if Vice President Pence does not seek to remove him under the 25th Amendment, which Pence declined Tuesday to do. The House could impeach Trump on a charge of “incitement of insurrection" — a reference to the 14th Amendment — as early as Wednesday, and some Republicans, including Rep. Liz Cheney (R-Wyo.), said they would support the move.
Others want to use the 14th Amendment against members of Congress who supported the baseless allegations that the election was stolen from Trump and the demonstrations that led to the deadly attack on the Capitol.
“In protecting our Constitution and our Democracy,” Pelosi wrote in a letter to colleagues that invoked the 14th Amendment, “we will act with urgency, because this President represents an imminent threat to both.”
Ending Trump’s presidency under the 14th Amendment is probably impossible, scholars say, because there is no mechanism for removal in the provision. It could, however, be used to prevent Trump or other politicians who supported the attempted insurrection from holding office again.
If Trump is impeached by the House, two-thirds of the Senate would have to vote to convict him in a trial that would be held after he leaves office. Using Section 3 of the 14th Amendment wouldn’t require a super majority, historians noted, and wouldn’t complicate the start of Joe Biden’s presidency.
Gerard N. Magliocca, an Indiana University law school professor who has studied Section 3, said a majority vote in Congress would express lawmakers’ opinion that Section 3 applies. The courts would then have to make that legal declaration.
“It’s not just something that Congress can do,” he said in an interview.
The history of Section 3, though little known, is a remarkable one. Though it doesn’t mention them by name, the provision was specifically aimed at Confederates following the Civil War, seeking to bar them from holding public office during Reconstruction.
“The language in Section 3 applies to anybody who has made an oath to the Constitution and then violates that oath,” Foner said. “It’s pretty simple.”
But the politics around it was not, according to Magliocca, who in a prophetic act of scholarship recently completed a 67-page paper on Section 3, which he calls “one of the vestigial parts of the Constitution.”
Southerners deeply opposed the provision, arguing it would harm any effort to unite the country. Though it was ultimately passed, Section 3 was sparsely applied and, as Magliocca put it, “quickly neutered” by Congress just four years later.
In 1872, Magliocca wrote, President Ulysses S. Grant and then Congress “concluded that Section Three was not helping Reconstruction and could be making matters worse by giving white Southerners an excuse to aid the Ku Klux Klan,” which the federal government was trying to squash.
With a presidential election looming, Grant told Congress: “More than six years having elapsed since the last hostile gun was fired between the armies then arrayed against each other, it may well be considered whether it is not now time that the disabilities imposed by the fourteenth amendment should be removed.” He continued:
When the purity of the ballot is secure, majorities are sure to elect officers reflecting the views of the majority. I do not see the advantage or propriety of excluding men from office merely because they were before the rebellion of standing and character sufficient to be elected to positions requiring them to take oaths to support the Constitution, and admitting to eligibility those entertaining precisely the same views, but of less standing in their communities.
Congress passed the Amnesty Act of 1872, which removed a prohibition against holding office by all but the most senior Confederate leaders. In 1898, wider amnesty was granted as a “gesture of national unity” during the Spanish-American War, Magliocca wrote. (In the 1970s, Congress posthumously granted the same benefits to Confederate Gen. Robert E. Lee and Jefferson Davis, president of the Confederacy.)
Magliocca said the amnesty was aimed only at Confederates, not anyone else in the future who might violate the provision.
“Those waivers don’t mean that it can’t be applied today,” Magliocca said in an interview.
Section 3 has been invoked since the Confederate issue was settled, but just once.
In 1919, Congress barred Victor L. Berger, a socialist from Wisconsin, from occupying a House seat following his opposition to the United States entering World War I. A special House committee that took up the issue concluded:
that Victor L. Berger, the contestee, because of his disloyalty, is not entitled to the seat to which he was elected, but that in accordance with the unbroken precedents of the House, he should be excluded from membership; and further, that having previously taken an oath as a Member of Congress to support the Constitution of the United States, and having subsequently given aid and comfort to the enemies of the United States during the World War, he is absolutely ineligible to membership in the House of Representatives under section 3 of the fourteenth amendment to the Constitution of the United States.
How would Section 3 play out with regard to Trump?
Foner and Magliocca aren’t sure.
But they suspect the interest in examining the idea to increase rapidly.
“I thought of it as soon as people started to use the word ‘insurrection,’ ” Magliocca said.
Read more Retropolis: