Constitutional Disqualifications from Office

Guest Blogger

Lea VanderVelde

Ever since the mob stormed the Capital while Congress was engaged in its constitutional duties, there have been calls for proceedings to remove the current President by impeachment or the 25^th Amendment.  There is another provision of the Constitution, however, that speaks directly to “acts of insurrection,” and sheds some light on the current situation.

Section 3 of the 14^th Amendment builds a disqualification clause into the U.S. Constitution.  Section 3 disqualifies anyone who had previously sworn an oath to support the Constitution, and then engaged in insurrection or rebellion against the United States from holding any office -- civil or military, state or federal.  The language is sweeping, and intentionally so. In the debates surrounding this provision, there were several attempts to weaken it, to curtail its breadth, and all failed.  This disqualification for holding office was then enacted into the Constitution in the Fourteenth Amendment.

The Reconstruction Congress of the United States took oaths as seriously as they did acts of insurrection.  Note that this disqualification did not apply to everyone who ever participated in insurrection.  It did not apply to the entire confederate army, for example.  Section 3 applied only to those who had first pledged to support the Constitution and then turned on that promise, by committing acts of insurrection.  Oaths were sacred to these framers of the modern Constitution.  Having once sworn to uphold the Constitution, the oath was thought to continue to be binding for life. So central was supporting the Constitution, that some oaths went so far as to add a corresponding oath, to encourage others to do support the Constitution as well.

There is nothing in this Constitutional text that limits it to the Civil War era.  The text appears to be self-executing; it declares the disqualification, short and simple.  Yet Section 3 is easier to apply to prevent persons from entering office than to remove those already in office.  What does one do if the person engaging in an act of insurrection holds office at the time of the infraction?  The provision appears to render them instantly disqualified but it provides no means for their removal. Consider for example that the Reconstruction Congress never sought to apply this provision to President Andrew Johnson;  instead they impeached him, though he squeaked by in the Senate vote for removal.  He was accused of high crimes and misdemeanors, rather than acts of insurrection or rebellion, which might merit more immediate removal.

It is clear from Section 3 that the respective houses of congress could prevent disqualified persons from being sworn into office, and so they did.  Their deliberations shed some light on the standards to be applied.  Of course, the language posed the issue of exactly what actions constituted “engaging in insurrection or rebellion.” Congressmen disagreed on where to draw the line, although they insisted that a line must be drawn and held.

The issue of line-drawing played out dramatically in the case of Phillip Thomas, who had been elected to represent the state of Maryland.  Though a slave state, Maryland was loyal to the Union and never seceded during the Civil War.  Phillip Thomas never joined the confederacy.  In fact, Mr. Thomas had taken the oath to uphold the Constitution years earlier as a member of President Buchanan’s cabinet, well before the Civil War. Any political positions he had taken during that time were not an issue for the Congress.

Mr. Thomas’ disqualifying act was his willingness to permit his underage son to go off to join the Confederate army.  Mr. Thomas had attempted to dissuade his son, but when the son insisted, in perhaps a misguided act of fatherly generosity, Mr. Thomas gave his son $100, just in case he found himself in jail somewhere.  It was this relatively innocuous action, tangentially perhaps and remotely in support of the insurrection, that caused the Senators to debate Thomas’ qualification for almost a year.  Eventually, the Senate concluded that this act was enough in fact to disqualify him from taking his seat in the Senate.

Having sworn allegiance to the United States once was enough.  He was a civilian when he gave his son  gift of  100 dollars, but he had indeed sworn an oath to uphold rather than undermine the Constitution.  Changed circumstances, his return to civilian life, an insurrection that he could not have imagined would materialize when he swore that oath, did not excuse his actions.  An oath was not something to be taken lightly, and insurrection was not to be trifled with.

Which brings us back to the current situation.  Inciting a mob to insurrection is act is more serious violation of the oath than giving one’s son $100 if he insists on going to the rally.  The Fourteenth Amendment entitles both houses of Congress to prevent a disqualified person from being sworn in.   But the Fourteenth amendment also gives Congress an additional power in its final clause.  Section 5 gives Congress the authority to pass additional measures appropriate to enforce these ends.  That means that Congress does not need to impeach Donald J. Trump to prevent him from holding office, civil or military, state or federal, in the future.  Congress can enact additional enforcement measures to effectuate the reach of Section 3 of the Fourteenth Amendment.

Lea VanderVelde is Josephine Witte Professor of Law at the University of Iowa College of Law. You can reach her by e-mail at l-vandervelde@uiowa.edu