On December 4, 1865, the 39th Congress convened in Washington, D.C., marking its first meeting since the Union victory in the Civil War and the assassination of Abraham Lincoln. The burning questions facing Congress and President Andrew Johnson—Lincoln’s White House successor—were how to reincorporate the former Confederate states into the Union and how to prevent another violent insurrection.
Among the Senators who tried to take their seats in the coming months was Alexander Stephens, former vice president of the Confederate States of America. Stephens had been arrested for treason in May 1865, imprisoned for five months in Boston, then paroled by President Johnson. Upon returning to his home state of Georgia, the state legislature elected Stephens to the Senate.
He wasn’t alone. Southern legislatures elected to Congress two former Confederate senators, four other former Confederate congressmen and a host of former Confederate military officers. Members of the Radical Republicans, the political group that had led the fight to end slavery and now pushed for the rights of newly freed Black Americans, were outraged. Their plan for post-Civil War governance was Reconstruction, an ambitious legislative program to end slavery, extend the vote to Black men and guarantee equal protection under the laws for all “freedmen,” formerly enslaved people.
But enforcement of Reconstruction would be impossible if state and local governments in the South were run by former Confederates, and if Congress, in the words of Pennsylvania Representative Thaddeus Stevens, was “filled with yelling secessionists and hissing copperheads."
The simplest way to legally enshrine loyalty to the U.S. government as a post-war qualification for federal and state political offices was by amending the Constitution. This marked the start of a many-years debate over who should be allowed to serve in government—and who got to decide.
The end result was Section 3 of the 14th Amendment, which disqualified anyone from holding federal or state political office who had violated their oath “to support the Constitution of the United States” by engaging “in insurrection or rebellion against the same.”
Origins of the 14th Amendment’s Disqualification Clause
On the opening day of the 39th Congress, Republicans refused to seat several prominent Confederates. But they needed a constitutional mechanism to legally prevent such men from ever holding office again.
“This was an honor culture,” says Mark Graber, a constitutional law professor at the University of Maryland. “People who violated their oath to the Constitution couldn’t be trusted in the future.”
Before drafting legislation, Congress convened a Joint Committee on Reconstruction and tasked it with investigating political conditions in the South. After months of testimony from Union military officers, Southern politicians and formerly enslaved people, the 15-person committee issued a landmark report in June 1866 that laid the legal foundation for what would become the 14th Amendment, including Section 3.
First Version Applied Only to Confederates Who Fought in Civil War
The first version of Section 3, which barely passed the House of Representatives, looked very different from the disqualification clause currently in the Constitution. It read:
Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.
The original language of Section 3 applied only to those who fought in or supported the “late insurrection,” i.e. the Civil War, and the remedy was disenfranchisement—stripping them of the right to vote in federal elections. The penalty also expired just four years later.
When Section 3 came before the Senate, the bill’s language underwent significant changes. Sen. Jacob Howard of Michigan, a leading Republican on the Joint Committee on Reconstruction, proposed that the penalty for insurrection should be disqualification from holding office, not disenfranchisement. Secondly, disqualification should be broadened to include people who engage in any insurrection, not just the Civil War.
“Congress needed to have something in the Constitution to deal with future insurrections,” says Gerard Magliocca, a constitutional law professor at Indiana University. “The main thing they had in mind at that point was, what if there's another attempt at secession—another violent attempt to resist federal authority in the South and other states? That was something they’d just experienced.”
Disqualification Vs. Punishment Without Trial
The Senate version of Section 3 disqualified all past and future insurrectionists from holding political office in the United States. Importantly, the penalty had no expiration date. It could only be lifted by a two-thirds vote of Congress.
That last provision was a direct rebuke of President Andrew Johnson, a Southern-born Republican who favored blanket amnesty for all former Confederate officials and soldiers. Johnson had already used his executive power to free Alexander Stephens and other Confederate leaders charged with treason. By requiring a supermajority in Congress to lift the Section 3 disqualification, Radical Republicans circumvented the president and his allies.
Johnson and congressional Democrats vehemently objected to the Senate’s language in Section 3, which they claimed violated the 6th Amendment guarantee to a fair trial. The disqualification clause appeared to punish former Confederates for their past actions without a trial or a conviction of treason.
Radical Republicans in Congress dismissed those objections, arguing that Section 3 wasn’t a punishment, but rather a new qualification for holding office. Under Section 3, to qualify for any political office in the United States (federal or state), you couldn’t have engaged in an insurrection.
“The argument was that Section 3 was no different than saying somebody had to be a certain age or be a citizen to hold office,” says Magliocca. “Everybody under 35 is not being ‘punished’ because they can’t be president. It’s a qualification for office, not a punishment.”
By framing Section 3 this way, Radical Republicans made it possible for officials to be disqualified by military and civil procedures instead of through drawn-out criminal trials.
“Congress understood that they probably weren't going to get many criminal convictions for treason, particularly if they held the treason trial in the South,” says Graber, “so this was a way to assure that people won’t hold office even without convicting them of treason.”
How the Disqualification Clause Was Enforced
The final version of Section 3 of the 14th Amendment passed by the Senate in 1866 reads as follows:
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.
How many people were potentially disqualified from office under Section 3? Magliocca estimates that the number was in the tens of thousands. The broad language of the disqualification clause includes not just the top Confederate leadership, but anyone who served in the Confederate military or held political office in the South during the Civil War.
“Think of every sheriff or every clerk who took an oath to the Constitution before they took their position,” says Magliocca. “If you start to add up every county and every town in the South, that’s a lot of people.”
What Section 3 didn’t explain was how the disqualification clause would be enforced. How do you prove that someone engaged in insurrection without a trial? Who makes the decision?
Congress expected that each state would come up with its own mechanism for disqualifying officials, says Graber, but that didn’t happen quickly enough in the South. So Congress had to create its own enforcement mechanism through the Military Reconstruction Acts of 1867.
What’s interesting about the Military Reconstruction Acts, says Magliocca, was that they actually enforced Section 3 before the 14th Amendment was ratified. According to the Constitution, adoption of a new amendment requires ratification by three-fourths of state legislatures or state ratifying conventions. To reach that threshold, ratifying conventions had to be organized in the former Confederate states.
Congress’s only hope for ratifying the 14th Amendment in the South was to prevent Confederate loyalists from being elected to those state ratifying conventions. They did this through the Military Reconstruction Acts and the disqualification clause of Section 3.
“In the Military Reconstruction Acts, Congress instructed the military to use the standard proposed as Section 3 of the 14th Amendment to disqualify people from voting for delegates to state ratifying conventions,” says Magliocca. “In addition, the law said that Black men had to be allowed to vote. It was a twofold way to get votes for the 14th Amendment by including Black men and excluding a certain group of white men.”
The strategy worked and the 14th Amendment was ratified on July 9, 1868.
After the 14th Amendment was in effect, Congress passed the Enforcement Act of 1870 (also known as the “First Klu Klux Klan Act”) that gave federal prosecutors the power to remove people from office who were disqualified under Section 3.
1872 Amnesty Sidelined Section 3
Under Section 3 of the 14th Amendment, only Congress has the power to grant amnesty (or “remove such disability” in the Amendment’s language) by a two-thirds vote. Even before the 14th Amendment was ratified, Congress granted amnesty to roughly 1,000 people, says Magliocca.
“They voted to give amnesty to people if they seemed trustworthy and when Congress needed to fill some particular office,” says Magliocca. “For example, ‘We need somebody to be governor of South Carolina.’”
But in the early years of Section 3, there were also some high-profile disqualifications that triggered political battles. When Zebulon Vance, a former Confederate governor of North Carolina, was denied a seat in the Senate in 1871, his case became the rallying cry of Democrats in the 1872 presidential campaign.
Ultimately, President Ulysses S. Grant, a Republican, won reelection in 1872, but political pressure from both parties convinced Grant and congressional Republicans to reconsider Section 3. By passing the General Amnesty Act of 1872, Congress and President Grant provided blanket amnesty to nearly all former Confederate officials and soldiers, clearing them to hold office in the reunified nation.
After Congress passed a similar amnesty in 1898 to rally support for the Spanish American War, Section 3 was effectively shelved, at least as it applied to former Confederates.
Sen. Waitman Willey, a Republican from West Virginia, argued to the 39th Congress as Section 3 was being debated in 1866, the provision should be thought of, not as a punishment for past rebellion, but a safeguard against future insurrections.
“It looks not to the past,” said Willey, “but it has a reference, as I understand it, wholly to the future. It is a measure of self-defense. It is designed to prevent a repetition of treason by these men, and being a permanent provision of the Constitution, it is intended to operate as a preventive of treason hereafter by holding out to the people of the United States that such will be the penalty of the offense if they dare to commit it.”
