A Section 3 Interpretive Exercise

Gerard N. Magliocca

Here's a question that came up almost immediately after Section Three was ratified: "Are insurrectionists barred from serving as state legislators?" To answer this question, let start with the language:

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. 

Here are two reasons why some people said that the answer was no. First, Section Three does not list state legislative positions as a covered office. It just says "office . . . under any state." Second, federal legislative positions are specifically listed. They are not considered federal offices. Thus, a parallel reading would say that state legislative positions are not state offices.

This interpretation was rejected. In 1869, President Grant announced in his Annual Message that many members of the Georgia legislature were ineligible to serve due to Section Three. The Union Army then removed these legislators. Later, state legislators in Virginia were indicted for serving in office illegally under Section 3, though they received amnesty prior to trial. 

What's the takeaway here? One is that Section Three was applied in a purposive and all-inclusive way subject to congressional amnesty. The other is that a finer textual reading was considered and rejected almost immediately.