The 14th: Why A Reconstruction-Era Amendment is in the News
February 23, 2021
Now that former President Donald Trump’s second impeachment trial has concluded with another acquittal, some lawmakers and voters remain unsatisfied with the results.1 Had President Trump been found guilty by the Senate, he would have been barred from holding federal office again in the future. With an acquittal, President Trump remains eligible to run once again in 2024, as many have speculated he plans to do.2
With some Americans arguing that President Trump’s acquittal was the result of partisanship instead of a consideration of the evidence, there have been calls to use the 14th Amendment to bar President Trump from being elected again.3 But now, 150 years after its ratification, how does the 14th Amendment apply?
The 14th Amendment passed after the Civil War, as one of the Reconstruction amendments intended to solidify the rights and citizenship of formerly enslaved people. The 13th Amendment formally abolished slavery, and the 14th Amendment established citizenship for any person, including the formerly enslaved, born in the territory of the United States.4 This establishment of birthright citizenship is why the 14th Amendment is often discussed in relation to immigration reform.5 But those hoping to use the 14th Amendment to keep President Trump out of office are citing the lesser-known Section 3, which reads:
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.6
Reconstruction and the History of Section 3
Originally, Section 3 was included in the 14th Amendment to protect post-war reforms in the South by barring members of Congress, state government officials, and military leaders who had sided with the Confederacy from holding office in the future.7 The 14th Amendment also helped lift some of the barriers to Black Americans holding federal office.
For the brief period of 1870-1887, Black senators and representatives served in the halls of Congress, beginning with Senator Hiram Revels of Mississippi and Representative Joseph Rainey of South Carolina, both of whom were elected in 1870. Also during this period, Senator Blanche K. Bruce of Mississippi would serve a full term and an additional 15 Black congressmen would serve.8
However, most of their tenures in office were brief, as the resurgence of white supremacists in Southern governments saw them removed from office or defeated in elections. As Reconstruction ended, marked by the withdrawal of federal troops from the South, nearly all of these senators and representatives were out of office by 1876. Black Americans were sporadically elected to the House of Representatives until 1901, but their time in office was usually brief. It would not be until 1943 that more than one Black representative served in Congress again with any consistency. Another Black senator was not elected until 1966—more than 90 years after Senator Bruce’s term ended.9
The Current Debate
In the wake of the Capitol attack, some lawmakers believe the language of the 14th Amendment gives them the power to prevent President Trump’s return. However, opponents and even neutral legal scholars have raised several issues with this argument. First, the 14th Amendment specifies that a two-thirds vote in both the House and the Senate could undo someone being barred from office on these grounds, but it offers no formal process for barring them to begin with. Second, the language of the 14th Amendment is tied to “a Senator or Representative in Congress, or elector of President and Vice President,” but it makes no direct mention of the office of the president itself.10 To combat this argument, proponents of invoking the 14th Amendment cite the rest of the clause, which states “or hold any office, civil or military, under the United States.” It could be argued that the president, as a civilian leader and commander-in-chief of the military, falls under this category.11
Yet with the impeachment trial now concluded with an acquittal, the validity of invoking the 14th Amendment becomes even less clear. Under its tenets, barring someone from office requires them to have taken an oath to support the Constitution and “have engaged in insurrection or rebellion against the same.” President Trump most certainly took that oath when he was sworn in as president, but he has been constitutionally acquitted of having engaged in insurrection.12
- Should Congress be allowed to bar anyone from holding office? If so, under what circumstances do you think that would be appropriate? If not, why not?
- If Congress was to decide to ban a citizen from holding federal office, what should be required to make that happen? Is a simple majority vote in the House and the Senate enough? Should the process be more involved/require greater approval?
- The 14th Amendment was intended to establish the criteria for U.S. citizenship and to guard against pro-slavery/white supremacist officials undermining Reconstruction in the South. Some people suggest that Congress could use more reforms to help protect democracy and to make itself more representative of all citizens. Do you agree or disagree? What reforms do you think would improve representation in Congress? Or, why do you think Congress does not need such reforms?
As always, we encourage you to join the discussion with your comments or questions below!
Featured Image Credit: Public Domain
 Politico: https://www.politico.com/news/2021/02/15/poll-trump-impeachment-conviction-469051
 NPR: https://www.npr.org/2021/01/30/961919674/could-trump-make-a-comeback-in-2024
 The Nation: https://www.thenation.com/article/politics/14th-amendment-trump-foner/
 Senate.gov: https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm
 Vox: https://www.vox.com/2018/7/23/17595754/birthright-citizenship-trump-14th-amendment-executive-order
 National Archives: https://www.archives.gov/founding-docs/amendments-11-27#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws.
 Lawfare Blog: https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6
 House.gov: https://history.house.gov/baic/
 Voice of America: https://www.voanews.com/usa/us-politics/some-lawmakers-experts-eye-14th-amendment-bar-trump-future-office
 Lawfare Blog: https://www.lawfareblog.com/practical-path-condemn-and-disqualify-donald-trump
 NPR: https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/13/967098840/senate-acquits-trump-in-impeachment-trial-again