Disqualification for Rebellion
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.
The disqualification of former rebels for federal and state office was the most controversial of the sections of the Fourteenth Amendment. Some called it vindictive. On the other hand, those who had taken a solemn oath to support the United States and had reneged on the oath could, it was argued, justifiably be prevented from simply re-assuming positions of authority in the government. Moreover, many former U.S. officials who had joined the Confederacy led the resistance to the passage of Reconstruction legislation and had supported the imposition of the onerous Black Codes on the freedmen. Other objections to the Disqualification Clause asserted that it intruded on the president’s pardon power, but obviously a constitutional amendment could modify that previously unlimited power. In any event, Congress might well have thought it prudent to limit President Andrew Johnson’s pro-Southern actions.
An earlier draft of the section would have disqualified all who had voluntarily aided the Confederacy until 1870, but the Senate adopted Senator Jacob Howard’s less severe but potentially more permanent version. When Jefferson Davis was indicted for treason, his lawyers argued that this provision foreclosed any other punishment. But President Johnson’s blanket pardon for all crimes related to the rebellion, on Christmas Day 1868, mooted this point. Congress lifted the disqualification of many individuals, and in 1872 it did so for “all persons whomsoever, except Senators and Representatives of Thirty-sixth [1859–1861] and Thirty-seventh [1861–1863] Congresses, officers in the judicial, military and naval service of the United States, heads of Departments, and foreign ministers of the United States.” Act of May 22, 1872, ch. 193, 194, 16 Stat. 142 (1872). In 1898, Congress removed all disqualifications for previous disloyal conduct.
Despite being written in a particular historical context, the clause is still in operation and would still apply in the case of government officers who may participate in insurrection or rebellion, including perhaps terrorist activities.
JAMES E. BOND, NO EASY WALK TO FREEDOM: RECONSTRUCTION AND THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1997)
HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908)
JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956)
VIRGINIA COMMISSION ON CONSTITUTIONAL GOVERNMENT, THE RECONSTRUCTION AMENDMENTS’ DEBATES: THE LEGISLATIVE HISTORY AND CONTEMPORARY DEBATES IN CONGRESS ON THE THIRTEENTH, FOURTEENTH, AND FIFTEENTH AMENDMENTS (Alfred Avins ed., 1967)