Is Anyone Disqualified? Mindless and Mindful Textualism in the Second Confiscation Act and Section Three of the Fourteenth Amendment

Mark Graber

Donald Trump, Trump’s lawyers, and Trump’s legal supporters are cornering the market on mindless textualisms when claiming Second Three of the Fourteenth Amendment does not disqualify Trump from holding office.  They claim, common usage and explicit declaration in 1866 to the contrary, that the President of the United States is technically not an “officer of the United States” whose violation of the oath of office triggers Section Three disqualification.  They claim, common usage and explicit declaration in 1866 to the contrary, that the President technically does not take the oath to support the Constitution that triggers Section Three disqualification.  They suggest, common use and explicit declaration in 1866 to the contrary, that the presidency may not technically be an office under the United States that is the subject of Section Three disqualification.  Now Trump, Trump’s lawyers, and Trump’s legal supporters are claiming, common use and explicit declaration to the contrary, that persons who incite insurrections may not trigger Section Three disqualification by “engag[ing] in insurrections.” This ahistorical reading of Section Three, if taken seriously, demonstrates that the persons responsible for the Fourteenth Amendment failed to disqualify a single confederate from holding any office.

This latest exercise in mindless textualism is based on the somewhat different wording of the Second Confiscation Act (1862) and Section Three of the Fourteenth Amendment.  The second section of the Second Confiscation Act frees the slaves of every person who “shall hereafter incite, set on foot, assist or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection.”  Section Three of the Fourteenth Amendment speaks only of persons “engaged in insurrection.”  These drafting choices, Trump, Trump’s lawyers, and Trump’s legal supporters intone, demonstrate that the persons responsible for the Fourteenth Amendment thought that inciting an insurrection was different from engaging in an insurrection.  If inciting an insurrection is not engaging in an insurrection, then persons who incite insurrections remain eligible for public office. Otherwise, Trump and his supporters maintain, the contemporaneous use of “shall hereafter incite” in the Second Confiscation Act would have been without legal significance.  As anyone who reads the records of congressional debates or the U.S. Statutes at Large knows, members of Congress then and now do not waste words. 

This argument from the Second Confiscation Act not only exempts Donald Trump from Section Three’s strictures, but Jefferson Davis, Robert E. Lee, and every confederate supporter, none of whom “engaged in insurrection” under the interpretive canons Trump is advancing.  Jefferson Davis and many other confederates who held state or federal office before Civil War were too old to fight in the Confederate Army.  They merely instigated and assisted secession efforts.  If, however, the Second Confiscation Act demonstrates that persons who “incite” insurrections do not “engage” in insurrections, then presumably persons who “set on foot, assist, . . . and give aid or comfort” to insurrections also do not “engage” in insurrections.  Otherwise, again, the use of those words in the Second Confiscation Act would be without legal significance.  So much for disqualifying Jefferson Davis and most persons who held office in the Confederacy.  But wait, to quote my friend Sandy Levinson, “there’s more.”  Section One of the Second Confiscation Act speaks of “every person who shall hereafter commit the crime of treason against the United States.”  If we take seriously the principle that all words in the Second Confiscation Act have legal significance, then no person who committed the crime of treason against the United States engaged in insurrection under the Second Confiscation Act and Section Three.  Robert E. Lee, his fellow generals, and all members of the confederate army were as eligible for public office immediately after Appomattox as they were immediately before Fort Sumter.

Taken "seriously" Trumpista textualism leads to the conclusion that only persons who did not incite the insurrection, set the insurrection on foot, assist the insurrection, give aid or comfort to the insurrection, or commit treason during the insurrection by levying war against the United States engage in insurrection for Section Three purposes.  Maybe a good lawyer can come up with a hypothetical Confederate who was disqualified from office on this reading of the Fourteenth Amendment.  Whether any person living in 1866 was covered by this mindless textual understanding of Section Three is doubtful.   Section Three, on the Trump textualist reading, fails to disqualify a single traitor.

Trumpista mindless textualism warps the Second Confiscation Act in other ways.  Consider Section Six, which discusses confiscation of property.  That section speaks of all persons “engaged in armed rebellion . . . or aiding or abetting such rebellion.”  If we assume every word of the Second Confiscation Act has legal significance, then those who incited the insurrection, set the insurrection on foot, or in any way gave aid or comfort to the insurrection were not subject to confiscation.  We also have to figure out the relationship between “engaged in armed rebellion” as understood in Section Six, “engage in rebellion” in Section Two and “the crime of treason” in Section One.  Presumably each phrase has a different meaning.  “Engaged in armed rebellion” probably cannot fully encompassed both, otherwise on the textualism logic, that phrase should have appeared in Sections One or Two, Wasted words. The shame. Section Nine’s discussion of fugitive slaves speaks of “persons . . . engaged in rebellion . . . or who shall in any way give aid or comfort.”  On the Trump reading, this section does not cover persons who committed treason, incited the insurrection, set the insurrection on foot, or assisted the rebellion.  Who knew?

History explains why Republicans used various phrases to describe behavior they believed to be treasonous and merited disqualification from holding past and present office.  The Second Confiscation Act was directed at all persons Republicans believed had committed treason during the Civil War.  While that act was being debated, a judicial decision was handed down that many members of Congress interpreted as defining treason far more narrowly than the Republican majority.  The different locutions in the Second Confiscation Act are the consequence of the Republican attempt to make sure that all behavior the congressional majority thought was treason was covered, even if some members of the judiciary did not think that behavior treasonous.

Senator Lyman Trumbull of Illinois, the prime mover of the Second Confiscation Act, maintained the bill was directed at “all rebels, and those who give them aid and comfort.”  Trumbull’s bill was aimed at traitors.  He informed Congress that the Second Confiscation Act “prescribe[s] a punishment for those persons who, though aiding and abetting the rebellion, cannot be reached and prosecuted for treason; and this bill applies to that class of persons.”  Republicans when considering the Second Confiscation Act repeatedly declared the measure is "directed by its supporters against individuals who have committed treason.”  They understood “aid and comfort” or “aiding and abetting” broadly.  Representative William P. Sheffield of Rhode Island, quoting Joseph Story, declared,

If war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of the action, and who are actually leagued in the general conspiracy, are to be considered as traitors.

Incitement to treason had long been considered treasonous behavior.  Grand juries were charged, “successfully to instigate treason is to commit it.”  Trumbull would punish as treason “the instigators of [secession], the conspirators who set it on foot.”

Justice Noah Swayne complicated matters in early 1862.  His decision on circuit in United States v. Chenoweth quashed indictments for treason that charged persons with providing “aid and comfort to the enemies of the United States.”  This prong of the treason clause, Swayne reasoned, applied only to persons who assisted "a foreign enemy."  Swayne stated in his opinion and afterwards that the same indictment would have been good had the government charged the defendants with providing “aid and comfort” to persons levying war against the United States.  Nevertheless, many members of Congress feared that courts might declare unconstitutional any statute that declared assistance to treasonous endeavors to be a form of treason.  

The final version of the Second Confiscation Act solved the potential problem with narrow judicial constructions of the treason clause.  The first section punished treason per se.  Good Republican judges would apply that clause to all behaviors Republicans recognized as treasonous.  The second section punished various behaviors that Republicans thought treasonous, but feared courts might hold not covered by the treason clause of the Constitution.  This language would enable conservative Republicans and Democrats in the judiciary who might not support confiscation under Section One to support confiscation under Section Two. Contrary to Trump, Trump’s lawyers, and Trump’s legal supporters, the verbiage in Sections One and Two of the Second Confiscation Act do not reflect Republican understandings that engaging in treason was something different than inciting treason or committing treason.  Republicans described different forms of treason and used overlapping phrases to ensure that judges who might have a narrower understanding of treason would sustain the sanctions for the behaviors that Republicans thought treasonous.

The Second Confiscation Act makes sense once one recognizes the Republican effort to prevent a narrow judicial understanding of treason from interfering with congressional efforts to free slaves and confiscate rebel property.  Outside of the different punishments, which reflected Republican understandings that there were graduations of treason, the behaviors covered by Sections One and Two of the measure are afterwards treated identically and never distinguished.  The president was authorized to confiscate the property of all persons whose behavior Republican members of Congress thought was treasonous.  The army was forbidden to return escaped enslaved persons from all masters whose behavior Republican members of Congress thought was treasonous.  No member of Congress who favored the Second Confiscation Act make the distinctions that Trump is seeking to import into Section Three of the Fourteenth Amendment.  They described the bill as providing sanctions for all and only behavior they thought treasonous.  Most significantly, these sanctions for behavior Republican members thought treasonous included disqualification from holding public office. The third section of that measure declares that “every person guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office under the United States.”

Mindful textualism and history demonstrate that the Second Confiscation Act (1862) supports claims that persons who incite and assist insurrections are “engaged in insurrection” as that phrase is used in Section Three of the Fourteenth Amendment.  When read together, the use of “engaged” in Sections Two, Six, and Nine of the Second Confiscation Act clearly refer to all behaviors members of Congress thought treasonous.  These behaviors, members of Congress declared during the debates over the Second Confiscation Act, included inciting and assisting insurrections.  The Thirty-Seventh Congress explicitly declared inciting and assisting insurrections to be behaviors that warranted disqualification from public office.  The Ironclad Oath of 1862 disqualifies persons whose behavior merited disqualification under the Second Confiscation Act.  No evidence exists that the Thirty-Ninth Congress by using the phrase “engaged in insurrection” intended to narrow this longstanding policy on who was eligible to hold federal or state office in the United States.