What is the disqualification clause of the 14th Amendment?


A New Mexico judge ruled this week that a county commissioner was disqualified for participating in the attack on the US Capitol on January 6, 2021.

In ordering the removal of Otero County Commissioner Couy Griffin, the judge cited a section of the 14th Amendment disqualifying any elected official “who, having sworn before … to uphold the Constitution of the United States,” then ” engaged in insurrection or rebellion against the same, or aided or comforted his enemies. The advocacy group that filed the lawsuit is also considering trying to use it to disqualify former President Donald Trump from the 2024 presidential contest, according to The New York Times.

The disqualification clause, as it is sometimes called, was drafted during the post-Civil War Reconstruction era, in the brief period when radical Republicans – some of the most progressive lawmakers in American history – held a majority and were determined to stop high-ranking Confederate traitors from returning to public office.

The amendment does not specify who is supposed to apply it, so the responsibility lies with different agencies. Griffin was disqualified in court, but historically Congress itself has sometimes taken votes to keep elected members from sitting.

Two such examples highlight the inconsistency of the clause’s application: the last time it was used successfully, nearly a century ago, against anti-war lawmaker Victor Berger (who was, by any standard definition, an insurgent), and when applied against former Confederate Zebulon Vance – who, like Berger, was allowed to return to office once the political tides turned in his favor.

Vance grew up in a well-connected family that struggled financially but still enslaved more than a dozen people. After law school, he rose through the political ranks, first to the state senate and eventually as the youngest member of the 36th Congress, representing Asheville and surrounding areas.

(Rep. Madison Cawthorn (RN.C.), who currently represents Asheville and was also its youngest congressman, faced a lawsuit trying to disqualify him from Congress under the 14th Amendment. The lawsuit was dismissed as moot after Cawthorn lost his primary in May.)

As the march toward Civil War intensified, Vance initially opposed secession but eventually served in the Confederate Army. He also served as Confederate Governor of North Carolina.

After the war, in 1870, he was appointed senator from North Carolina, but the Senate refused to appoint him, citing the 14th amendment. After spending two years in Washington trying to get an amnesty, he gave up.

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But only a few years later, Washington was handing out the amnesty like candy, defeating the purpose of the clause. Vance got his in 1875 and was elected to the Senate three years later. Not only did he serve until his death in 1894; in a sense, he is still there today: a statue of Vance stands in the National Statuary Hall of the United States Capitol, a 1916 gift from North Carolina that Congress cannot legally remove unless the state decides to replace him.

Berger had a very different story, although he found himself in the same predicament as Vance. Born into a Jewish family in the Austrian Empire, he immigrated to the United States as a young man in 1878. He became a successful Milwaukee publisher of English and German newspapers.

Berger was a leading voice of “sewer socialists”, who believed that socialist goals could be achieved through elections and good governance, with no violent revolution necessary. Today, we would call it a “roads and bridges” platform; at the time, it was working sewers and clean water owned by the city.

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Berger served one term in Congress – the very first member of the Socialist Party – from 1911 to 1913, the high point being when he introduced the first bill for an old-age pension. (Nowadays we call it Social Security.) He was not reelected, but he remained active in Wisconsin politics and publishing.

Then World War I began, and with it came the first Red Scare. Berger was against the war and said so in his editorials, and in 1918 that was enough for him to be charged with “disloyal acts” under the Espionage Act. He was running for Congress again while under impeachment, and shortly after winning the November election, he was convicted and sentenced to 20 years in federal prison.

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While on appeal, Berger reported to Washington to be sworn in. The House declined to seat him by a vote of 309 to 1, saying his words had “given aid or comfort” to the nation’s enemies, and so he was ousted. under the 14th Amendment.

In December 1919, he ran in the special election to replace himself, and incredibly, he won. The Chamber refused it a second time. In 1921, Berger’s conviction was overturned by the Supreme Court, and he returned unimpeded to Congress in 1922, where he served three terms, pushing legislation to crack down on lynching. and end the ban.


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