Section 3 aimed to keep Confederates from office

Section 3 aimed to keep Confederates from office — and future insurrectionists too
Story by Erick Trickey • 3h
02/07/24

Fullscreen button
Section 3 aimed to keep Confederates from office — and future insurrectionists too
Section 3 aimed to keep Confederates from office — and future insurrectionists too
© Library of Congress/Library of Congress
Just after the Civil War, Union cavalry arrested Confederate Vice President Alexander Stephens at the Georgia plantation where he had enslaved 34 people. The former U.S. congressman was sent to a military prison at Fort Warren in Boston Harbor, where he awaited a potential trial for treason.


Nicknamed “Little Aleck,” the tiny, frail Stephens had a boyish face that had appeared on the Confederate $20 bill. His high-pitched voice belied his skills as an orator. In March 1861, days after he had helped draft the Confederate constitution, Stephens had thrilled an audience in Savannah with his Cornerstone Speech, which proudly identified racism and slavery as the new rebel government’s core principles.
“Its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition,” Stephens had said.

Stephens spent only five months in prison: In October 1865, President Andrew Johnson granted him parole. Three months later, in January 1866, Georgia’s newly elected, all-White legislature voted to send Stephens back to Washington to serve in the U.S. Senate.

Related video: Donald Trump Tells Supreme Court 14th Amendment Does Not Apply To Him (Newsweek)

Newsweek
Donald Trump Tells Supreme Court 14th Amendment Does Not Apply To Him
More videos
Obscure 14th Amendment Section 3 Gains Prominence After January 6th Attacks
Benzinga (Video)/Benzinga (Video)
Obscure 14th Amendment Section 3 Gains Prominence After January 6th Attacks
0:39
Lawrence: Historians’ brief teaches Supreme Court 14th Amendment’s real history
MSNBC/MSNBC
Lawrence: Historians’ brief teaches Supreme Court 14th Amendment’s real history
11:34
The history of the insurrection clause, explained
The Washington Post (Video)/The Washington Post (Video)
The history of the insurrection clause, explained
3:21
Stephens’s story sheds light on the momentous question the U.S. Supreme Court takes up this week: whether Section 3 of the 14th Amendment disqualifies former president Donald Trump from running for president again.

In 1866, Congress wrote Section 3 to keep former Confederates like Stephens from returning to power. It bars anyone who swore an oath to support the Constitution, and then engaged in insurrection or rebellion against it, from holding office again.

In May and June 1866, as the Senate debated the 14th Amendment, Section 3’s framers addressed several questions that Americans are asking today. The senators made it clear that Section 3 applies to presidents. They agreed that insurrectionists didn’t need a criminal conviction to be disqualified from office. They warned of the danger of reelecting oath-breakers and described Section 3 as self-defense for American democracy.


Within months of the war’s end, in late 1865, several Southern states had held elections for state legislatures and Congress — with only White men voting. They had been encouraged by Johnson, a white supremacist and former enslaver from Tennessee whom Abraham Lincoln had picked as his 1864 running mate to broaden his appeal and project national unity. Several Southern legislatures quickly implemented Black Codes, which restored slavery-era restrictions on Black people’s freedom, such as their ability to travel and choose their work.

The South also voted to send several ex-Confederates to Congress. Stephens was the most prominent; others included two Confederate senators, four Confederate congressmen, four Confederate generals, various colonels and some Civil War-era state officials. Congress refused to seat the Southern representatives. Instead, it set conditions for the Southern states to seek readmission to the Union.

Fullscreen button
Former Confederate Vice President Alexander Stephens, elected to the U.S. Senate by Georgia's legislature in 1866, was barred from holding office by Section 3 of the 14th Amendment.
Former Confederate Vice President Alexander Stephens, elected to the U.S. Senate by Georgia's legislature in 1866, was barred from holding office by Section 3 of the 14th Amendment.
© Library of Congress/Library of Congress
Stephens’s testimony before Congress’s Reconstruction Committee in April 1866 further alarmed congressional leaders. The ex-Confederate leader said he still believed in secession: “My convictions on the original abstract question have undergone no change,” he said, but “the sword was appealed to to decide the question, and by the decision of the sword I am willing to abide.” He said that if Black freedmen were granted universal voting rights, White Georgians would regard it as “about as great a political evil as could befall them.”

The Reconstruction Committee, citing Stephens, warned of “leading rebels, unrepentant and unpardoned,” trying to join Congress while “professing no repentance, glorying apparently in the crime they committed … and declaring that they yielded only to necessity.”

Congressional leaders feared that if they let the South back into the Union with few conditions, ex-rebels might “seize upon the government which they fought to destroy” and win at the ballot box what they had lost in the war, which had killed 600,000 soldiers. Rep. John Farnsworth (R-Ill.) warned that the South might elect former Confederate Gen. Robert E. Lee as the next U.S. president and drive the 4 million freed slaves “to the very depths of misery.”

Shadow of Bush v. Gore looms over Supreme Court’s Trump ballot case
So Congress drafted the 14th Amendment, best known for granting citizenship to the formerly enslaved and prohibiting states from denying them — or anyone — the equal protection of the laws.

One of the Republican Party’s founders, Sen. Jacob Howard of Michigan, proposed Section 3’s ban on oath-breaking insurrectionists. In 1854, at a meeting in Jackson, Mich., Howard had written the Republican Party’s platform, which began with a denunciation of slavery as a “great moral, social, and political evil.”

On May 23, 1866, Howard suggested “a clause prohibiting all persons who have participated in the rebellion … from all participation in offices, either Federal or State, throughout the United States. I think such a provision would be a benefit to the nation.”

Fullscreen button
Sen. Jacob Howard (R-Mich.) suggested and introduced Section 3 of the 14th Amendment, prohibiting insurrectionists from holding office, in 1866.
Sen. Jacob Howard (R-Mich.) suggested and introduced Section 3 of the 14th Amendment, prohibiting insurrectionists from holding office, in 1866.
© Library of Congress/Library of Congress
A week later, Howard introduced Section 3’s language, which says, “No person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath … 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.”

Section 3’s framers made it clear that this response to insurrection applies to presidents.

“This amendment does not go far enough,” complained Sen. Reverdy Johnson (D-Md.), because past rebels “may be elected President or Vice President of the United States, and why did you omit to exclude them?”

Sen. Lot Morrill (R-Maine) interrupted, saying, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”

“Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am,” Johnson replied.

Sen. Waitman Willey (R-W.Va.) called Section 3 “a measure of self-defense,” warning, “Shall we again trust men of this character, who, while acting under the obligation of the oath to support the Constitution of the United States, thus betrayed their country and betrayed their trust?”

Sen. John Henderson (R-Mo.) made clear that this wasn’t just about ex-Confederates, saying, “The language of this section is so framed as to disfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come. It strikes at those who have heretofore held high official position.”

Section 3’s framers and critics in the Senate agreed that it disqualified insurrectionists from office whether they had been convicted of a crime or not.

“The guilt or innocence of the party was not the matter at issue,” Willey said. “We were not trying them for their crimes, but we were providing security for the future peace of the country.”

Henderson concurred: “It is said that these leaders ought not to be condemned unheard, that they should not even be disqualified for official position until their guilt is established in a court of justice. … But when it is only proposed to fix a qualification for office and deny them future distinctions, which would rather make their treason honorable than odious, I do not hesitate to act.”

The 14th Amendment passed the Senate on June 8, 1866, and the House on June 13. Three days later, Rep. George Julian (R-Ind.) noted what Section 3 meant for a leading ex-Confederate: “General Lee cannot be President of the United States, nor Governor of Virginia.” The states ratified the amendment in 1868.

From 1868 to 1872, state courts and Congress both enforced Section 3. The North Carolina Supreme Court barred ex-Confederates from serving as county sheriff and state solicitor; the Louisiana Supreme Court removed a state judge. The U.S. Senate refused to seat Zebulon Vance, a former congressman, wartime North Carolina governor and Confederate colonel. Congress passed a law authorizing federal prosecutors to go to court to remove oath-breaking ex-Confederates from public offices.

Most of this came to an end in 1872, when Congress passed the Amnesty Act. Acting on Section 3’s last line — “Congress may by a vote of two-thirds of each House, remove such disability” — it lifted the ban on office-holding for most ex-Confederates. Some amnesty supporters argued that it would promote reunion and reconciliation.

It didn’t. Instead, White Southerners used fraud and violence against Black voters to win mid-1870s elections in several states. Ex-Confederates, elected as governors and legislators, were among those who presided over the end of Reconstruction, passed Jim Crow laws and suppressed Black Southerners’ right to vote.

Among the first ex-Confederates elected to Congress, in 1873, was Alexander Stephens himself. The next year, he spoke out against a civil rights bill, claiming that Black Southerners did not want “social rights” — an argument that Robert Brown Elliott, a Black congressman from South Carolina, rebutted the next day. The bill become the Civil Rights Act of 1875, which promised equal access to inns, trains and theaters. Southern governors mostly ignored it until the Supreme Court struck it down in 1883.

But Section 3 remains in the Constitution, prohibiting “the leaders of any rebellion hereafter to come” from returning to power and betraying their oaths. Its goal, Congress’s Reconstruction Committee explained, was to “fix a stigma upon treason.”

Erick Trickey teaches journalism at Boston University and is enterprise editor at the nonprofit New Bedford Light.