Rinse and Repeat: The President and Presidency are Covered by Section Three: The Basics

Mark Graber

The argument that Section Three of the Fourteenth Amendment covers past presidents, present presidents, and the presidency is simple and compelling.

1.  The Constitution clearly mandates that presidents are officers, that presidents take an oath of office, and that the presidency is an office.

2.  All participants in debates over the framing, ratification, and implementation of Section Three of Fourteenth Amendment acknowledged that the Constitution regards presidents as officers, requires presidents to take an oath of office, and treats the presidency as an office.  Such assertions were often made when Section Three was debated and, as often, made in other debates that took place contemporaneously with the debates over the framing, ratification, and implementation of Section Three.

3. Republican members of Congress, Republicans in state government, prominent political and military actors, and journalists of all political persuasions described Section Three as disqualifying all past and present officer-holders who took an oath of office from all state and federal offices.  No one regarded the words “of the United States,” “support the Constitution” or “under the United States” as modifying “office” or “oath.” Only one Democratic ever questioned this remarkably broad consensus. He recanted within seconds.

4.  No participant in the debate over the framing, ratification, or implementation of Section Three ever gave a reason why presidents or the presidency should be excluded from disqualification.

5. No good reason exists for excluding presidents or the presidency from disqualification.

Gerard Magliocca on almost a daily basis posts new primary sources supporting these claims.  I have found numerous additional sources.  Others, most notably John Vlahoplus, send me additional sources on almost a daily basis.  With the exception to be discussed below, no one has posted a new quotation from a speech or newspaper article published when Section Three was being framed, ratified, or implemented claiming the president was not covered. 

More specifically:

1. When Section Three was being framed, ratified, and implemented, Republican members of Congress, Republicans in state governments, prominent political and military actors, and journalists of all political persuasions often declared Section Three of the Fourteenth Amendment disqualified all past and present office-holders who engaged in an insurrection.   Sometimes the author or speaker described the persons disqualified as officer-holders “of a state” or “of the United States.”   As often, the disqualified were referred to merely as persons who had held office, with the “of” clause omitted.  No one during the time period when Section Three was framed, ratified, and implemented maintained that a constitutional difference existed between persons who held a federal office and persons who were officers of the United States.  Whenever persons made self-conscious reference to the president, they maintained the president was an officer of the United States capable of being disqualified under Section Three.  No one has found a speech or quotation to the contrary.

2. Rinse and repeat with respect to oaths and office.  When Section Three was being framed, ratified, and implemented, Republican members of Congress, Republicans in state governments, prominent political and military actors, and journalists of all political persuasions often declared Section Three of the Fourteenth Amendment disqualified all past and present office-holders who engaged in an insurrection after taking the constitutional prescribed oath of office.   Sometimes the author or speaker described the disqualified as persons who had taken an oath to support the Constitution.  As often, the disqualified were referred to merely as persons who had taken an oath of allegiance or an oath of office with the word “support” omitted.  No one during the time period when Section Three was framed, ratified, and implemented maintained that a constitutional difference existed between persons who took a constitutional mandated oath of office, persons who took a constitutionally mandated oath of allegiance, and persons who took a constitutionally mandated oath to support the Constitution.  Whenever persons made self-conscious reference to the president, they maintained the president took the sort of oath that rendered persons subject to disqualification under Section Three. No one has found a speech or quotation to the contrary.

3. Rinse and repeat with respect to the presidency. When Section Three was being framed, ratified, and implemented, Republican members of Congress, Republicans in state governments, prominent political and military actors, and journalists of all political persuasions often declared Section Three of the Fourteenth Amendment disqualified all past and present office-holders who engaged in an insurrection after taking the constitutionally prescribed oath of office from all state and federal offices.  Sometimes the author or speaker described the proscribed offices as “under the United States” or “under a State.” As often, the reference was merely to state or federal office with the “under” clause omitted.  No one during the time period when Section Three was framed, ratified, and implemented maintained that a constitutional difference existed between an “office” and an “office under.”  Whenever persons during the debates over ratification, framing, and implementation made self-conscious reference to the presidency, they maintained the presidency was one of the offices subject to disqualification under Section Three. With the exception of the quotation below, no one has found a speech or quotation to the contrary.

4.  Senator Reverdy Johnson of Maryland briefly noted that Section Three did not cover the presidency. Senator Lot Morrill of Maine quickly pointed out that the presidency was an office “under the Constitution.”  Johnson immediately confessed error.  The idea that many citizens might have made similar errors is ludicrous.  The accounts of Section Three people read in newspapers and heard on the stump indiscriminately referred to “office” and “office under the United States.”  Only a person desperate to please Jefferson Davis or Donald Trump could have concluded that the ordinary public meaning of Section Three at the time of ratification excluded the presidency from disqualification.