The Insurrection or Rebellion Clause

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. But Congress may by a vote of two-thirds of each House, remove such disability.

—Gerard N. Magliocca

Introduction

Section Three of the Fourteenth Amendment encapsulated President Abraham Lincoln’s call for “malice toward none with charity for all” following the Civil War. Instead of imposing criminal punishments on former Confederate officials, it provided that only some military and civilian officers who served the Confederacy were disqualified from returning to federal or state offices unless a supermajority of Congress waived their disqualification. Section Three was enforced for only a brief time and, with a single exception during World War I, lay dormant until the violence at the Capitol on January 6, 2021.

Drafting of Section 3

When the Civil War began, many sitting members of Congress left their positions and joined the rebel government. In December 1865, when the Thirty-Ninth Congress convened, the ex-Confederate states sent many of those former members back to Congress.¹ Republicans opposed seating men who had taken an oath to support the Constitution but supported the Confederacy. The Joint Committee on Reconstruction concluded that these individuals “made no secret of their hostility to the government and the people of the United States” and recommended “the exclusion from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies of the Union, and unworthy of public confidence.”²

Later, the Joint Committee proposed what would become the Fourteenth Amendment. But that initial proposal did not include an exclusion from officeholding.³ Rather, the Senate substituted what became Section Three in an amendment written by Senator Jacob Howard of Michigan.⁴

Section Three did not bar all former Confederates from holding all offices. A person could be subject to disqualification only if he had “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.” If such a person had “engaged in insurrection or rebellion,” he would be disqualified from “be[ing] a Senator or Representative in Congress, or elector of President and Vice-President, or hold[ing] any office, civil or military, under the United States, or under any state.” Representative John Bingham of Ohio described the provision as “an act of forgiveness on the part of the American people, without a parallel . . . in the history of nations.”⁵ Section 3 also granted Congress the power to waive a disqualification with a two-thirds vote of each house of Congress.

Implementing Section 3

Section Three broke with the original Constitution by imposing the first federal constitutional limit on the ability of individuals to hold a state office. In 1868, prior to ratification of Section 3, Congress readmitted five of the ex-Confederate states to the Union on condition that they deem ineligible from holding certain state offices those individuals who would be disqualified by Section 3.⁶ The Florida Constitution barred people who would be disqualified by Section 3 from holding state offices.⁷

The Civil Rights Act of 1870, also known as the First Ku Klux Klan Act, established the first general enforcement statute for Section Three.⁸ Section 14 directed federal prosecutors to remove from office certain individuals who were disqualified by Section Three, and Section 15 made it a criminal misdemeanor for a person disqualified by Section 3 to hold a covered office.⁹ In 1870, the Senate enforced Section 3 to refuse to seat Zebulon Vance, a member-elect who had served as governor of North Carolina under the Confederacy.¹⁰ North Carolina enforced a state statute that incorporated Section 3 to exclude a disqualified person from a state position.¹¹

By 1872, public opinion supported granting amnesty to most former Confederates. Over the preceding years, Congress had waived the disqualification provision for individual men through private bills,¹² but this approach was viewed as inconsistent and inadequate. Moreover, white northerners increasingly felt that disqualification was not helping and might be hurting Reconstruction policy. Accordingly, President Ulysses S. Grant called on Congress to grant a general amnesty.¹³ Congress responded with the Amnesty Act of 1872. This statute granted a Section 3 waiver for most of the people disqualified by Section 3.¹⁴ In 1898, Congress conferred a waiver on all remaining living ex-Confederates who were subject to Section 3.¹⁵

During the twentieth century, only one person, avowed socialist Victor L. Berger, was purportedly excluded from office due to Section 3, although the grounds are not entirely clear.¹⁶ Berger was later re-elected to Congress and permitted to take his seat in the House of Representatives.

Section 3 After January 6, 2021

In the wake of January 6, 2021, the House adopted articles of impeachment charging President Donald J. Trump with “incitement of insurrection.” Trump was not convicted of those charges. Federal prosecutors did not charge anyone involved with the events of January 6 with insurrection, but there were many efforts to disqualify people from holding certain offices using Section Three.

New Mexico County Commissioner Couy Griffin was at the Capitol on January 6 and was later convicted of trespassing on the Capitol grounds.¹⁷ In 2022, a New Mexico trial court applied Section 3 to remove Griffin from office. His appeal was dismissed on other grounds, and the Supreme Court denied review.¹⁸

In 2023, litigants in several states sought to disqualify Donald Trump from the presidential ballot. This litigation presented four primary questions on which judges and scholars disagreed: (1) Was Donald Trump’s presidential oath an oath to support the Constitution as an “Officer of the United States”? (2) Did Donald Trump engage in “insurrection”? (3) Is the presidency an “Office . . . under the United States” that a disqualified person could not hold? (4) Could a state enforce Section 3 to remove Trump from the ballot?¹⁹

A trial court in Colorado answered “yes” to the second and fourth questions but “no” to the first and third. The Colorado Supreme Court later answered each of these questions in the affirmative and removed Trump from the presidential ballot. (Your author served as an expert witness on behalf of the plaintiffs in the Colorado litigation.) However, the U.S. Supreme Court unanimously reversed on the fourth question. Trump v. Anderson (2024) held that “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”²⁰

Open Questions

• Is the President an “Officer of the United States” for purposes of Section 3? Is the Presidency an “Office . . . under the United States” for purposes of Section 3?
• What is the original public meaning of “engaged in insurrection or rebellion”?
• Can Section 3 be used to remove a person from the ballot, or can it be used only to remove a person who is currently holding that position?
• Can a joint session of Congress enforce Section 3 when counting electoral votes pursuant to the Twelfth Amendment?

1. Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 91 (2021). ↩︎
2. Report of the Joint Committee on Reconstruction, 39th Cong., at x, xviii (1866). ↩︎
3. Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 115–116 (1914). ↩︎
4. Cong. Globe, 39th Cong., 1st Sess. 2897 (1866). ↩︎
5. The Constitutional Amendment: Discussed by Its Author, The Cincinnati Commercial (Aug. 27, 1866), at 1. ↩︎
6. Act of June 25, 1868, ch. 70, § 3, 15 Stat. 73–74. ↩︎
7. Fla. Const. of 1868, art. XVI, § 1. ↩︎
8. First Ku Klux Klan Act, §§ 14–15, ch. 114, 16 Stat. 140 (1870). ↩︎
9. United States v. Powell, 27 F.Cas. 605 (C.C.D. N.C. 1871). ↩︎
10. James G. Blaine, Twenty Years of Congress: From Lincoln to Garfield 531 n.1 (1886). ↩︎
11. Worthy v. Barrett, 63 N.C. 99 (1869). ↩︎
12. An Act to relieve certain Persons therein from the legal and political disabilities imposed by the fourteenth amendment of the Constitution of the United States, and for other Purposes, ch. 1, 16 Stat. 607–613 (1869). ↩︎
13. Ulysses S. Grant, Third Annual Message (Dec. 4, 1871), in 9 A Compilation of the Messages and Papers of the Presidents (James D. Richardson ed. 1897). ↩︎
14. Act of May 22, 1872, ch. 193, 17 Stat. 142. ↩︎
15. Act of June 6, 1898, ch. 389, 30 Stat. 432. ↩︎
16. Note, The Power of a House of Congress to Judge the Qualifications of Its Members, 81 Harv. L. Rev. 673, 681 (1968). ↩︎
17. New Mexico ex rel. White v. Griffin, No. D-101-cv-2202-00473, 2022 WL 4295619 (N.M. 1st Jud. Dist. 2022), appeal dismissed, No. S-1-SC-39571. ↩︎
18. Griffin v. New Mexico, 144 S.Ct. 1056 (2024). ↩︎
19. Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350 (2024); Kurt T. Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment, 47 Harv. J.L. & Pub. Pol’y 309 (2024); William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605 (2024); Seth Barrett Tillman & Josh Blackman, Is the President an ‘Officer of the United States’ for Purposes of Section 3 of the Fourteenth Amendment?, 15 N.Y.U. J.L. & Liberty 1 (2021); Myles Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30 Wm. & Mary Bill Rts. J. 153, 206 (2021). ↩︎
20. Trump v. Anderson, 601 U.S. 100, 110 (2024). ↩︎