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U.S. Constitution Title: What the framers said about the 14th Amendment's disqualification clause: Analysis The intent of the 14th Amendment's disqualification clause is central to the debate over whether former President Donald Trump's name should be stricken from GOP primary ballots now that the issue has landed at the steps of the Supreme Court. Judges and officials across many states around the country are now grappling with language that was written a year after the end of the Civil War. The words "insurrection" and "rebellion" had certain meanings to those who had them added to the Constitution, and a key question for arbiters now is whether the language drafted a century-and-a-half ago should be applied to Trump's role in the Jan. 6 riot. As it originally passed the House, the 14th Amendment's third section was not nearly as broad as the version now being invoked to strike Trump's name from the ballot. It was narrowly crafted to apply only to those who willingly took part in the Civil War, and it was only meant to deprive former confederates of their right to cast ballots in federal elections. It also had an expiration date. "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, House-passed version read, according to congressional records of the era. The Senate spent several days debating the House-passed amendment in the spring of 1866. While the birthright citizenship provisions in Section 1 earned a lot of time in debate, Section 3 was also the subject of an intense back-and-forth on the floor. The transcripts can be read in the Congressional Globe, a forerunner to the Congressional Record. Sen. Jacob Howard of Michigan, who led the Republicans in debate, insisted that it wouldn't be enough to deprive the former confederates of their right to vote in federal elections -- he wanted them banished from government service altogether. "I should prefer a clause prohibiting all persons who have participated in the rebellion, and who were over twenty-five years of age at the breaking out of the rebellion, from all participation in offices, either Federal or State, throughout the United States," Howard said on the Senate floor on May 23, 1866. "I think such a provision would be a benefit to the nation." After about a week of discussions with colleagues, Howard offered the Sec. 3 language that was ultimately ratified. Howard's revision removed specific references to "the" rebellion and added an important qualifier: those who were to be excluded from government service would have to have violated prior oaths to defend the constitution by having "engaged in insurrection or rebellion against [it] or given aid or comfort to the enemies thereof." Senators rejected various attempts to re-insert the word "voluntarily," or to restrict the exclusion to those who violated their oaths during the time they were still serving in office. There was a great deal of concern voiced in debate that Howard's exclusion clause might leave the South ungovernable, with so many confederates poised to be disqualified from serving, even in state posts. Opponents expressed fear that the provision might alienate Union- loyal supporters in state legislatures. Nevertheless, the version Howard introduced made it through the entire ratification process and became effective on July 9, 1868. In 2024, the originalists on the Supreme Court will likely seek to determine whether the ratifiers could have had it in mind 158 years ago that Sec. 3 might not only be applied to the "late insurrection," as the House-passed version originally had it, but also to any other rebellion that might later take place. But originalists might take note of what Sen. Peter Van Winkle of West Virginia said as he sought to have the threshold for congressional amnesty in Howard's version lowered to a simple majority, rather than two-thirds. Post Comment Private Reply Ignore Thread |
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