The 14th amendment was passed in 1868, to settle important matters arising from the civil war, including how we define equality before the law. Ever since, it has served as the foundation for one landmark supreme court decision after another, from Brown v Board of Education (1954), which banned segregation in public schools, to Obergefell v Hodges (2015), which legalized gay marriage.
In recent times, a little-known feature has come into sharp focus. Six days after the January 6 Capitol attack, Eric Foner, a historian of the US civil war and the Reconstruction era, argued that section 3 of the amendment forbids an “officer of the United States” from holding office if he or she has sworn an oath to the constitution, then participated in an “insurrection or rebellion”.
That could mean Donald Trump is ineligible to hold public office.
The matter is now before the states. In September, New Hampshire’s secretary of state refused to intervene. On 8 November, Minnesota’s supreme court rejected an attempt to prevent Trump from running. On 14 November, a judge in Michigan dismissed a lawsuit that tried to exclude Trump. But other states will be reckoning with the issue in the weeks ahead, including Colorado.
To better understand the origin of the 14th amendment, and its ongoing relevance to 2024, Foner sat down with Ted Widmer, another civil war historian. The interview has been edited for length and clarity.
Ted Widmer: The 14th amendment has been in the news a lot lately. Can you remind us why this particular amendment holds so much sway?
Eric Foner: The 14th amendment is the most important amendment added to the constitution since the Bill of Rights in 1791. It’s an attempt by the victorious north, the Republican party in the aftermath of the civil war, to put its understanding of that war into the constitution.
It is also the longest amendment. They tried to deal with everything that was on the political agenda in 1865, 1866. It deals with many specific issues, such as ensuring that southern enslavers are not going to get monetary compensation. Or that – and this is in the news today – that if you take an oath of allegiance to the constitution, and then you engage in insurrection, you are barred from holding political office in the United States.
On the other hand, the 14th amendment also contains the first section, which is a series of principles arising from the end of slavery, beginning with birthright citizenship, that all persons born in the US are automatically citizens of the US. Although there’s an exclusion of Native Americans, who are still at that point considered citizens of their tribal nation, not the US. Also in the first section, “equal protection of the law”, that no state can deny to any person, not just citizens, the equal protections of the law – this was a fundamental change in American politics and society.
Can you elaborate?
No state gave Black people full equality before the law before the Reconstruction era and the 14th amendment. What equal protection actually means in practice is certainly open to debate. And it has been debated ever since 1868, when the amendment was ratified. There are key supreme court decisions over the last century – whether it’s outlawing racial segregation, establishing the right to terminate a pregnancy, “one man, one vote”, and many others – [that] have rested on the 14th amendment. My basic point is this: to borrow a modern phrase, I think the 14th amendment should be seen as a form of “regime change”. It’s an attempt to change the regime in the United States. It’s not a minor little change in the political system. It’s to change a pro-slavery regime, which is what we had before the civil war, to one based on equality, regardless of race. A fundamental change.
This is what the civil war has accomplished. It has destroyed slavery, and it has created a new political system, which views all persons in the US as entitled to some modicum of equality.
What is the immediate context of the passage of the 14th amendment? What were they trying to address?
Well, the immediate context was what we call the Reconstruction era, the period immediately after the civil war, when the country was trying to come to terms with the consequences of the war, the most important of which were the destruction of slavery and the unity of the nation. As I mentioned, there were specific issues, which really have very little bearing on our political life today, although they keep popping up. For example, part of the 14th amendment says the government has to pay its debt: if it borrows money, selling bonds, it has to pay them off when they become due. This lay there pretty much unremarked for a long time. But lately with the debates over the debt ceiling, it’s back in the news again.
But the fundamental issue was: what was going to be the status of the 4 million former slaves, who were now free citizens? Were they going to enjoy equality, were they going to have the right to vote, which was critical in a democracy? Were they going to be able to hold public office? What about economic equality, would they enjoy anything like that? The 14th amendment tries to deal with that in various ways. There are five sections, all of them relate back and forth to each other.
Even though Abraham Lincoln was no longer alive, does it reflect his thinking?
A constitutional amendment is the only legislative measure in which the president has no role whatsoever. The president cannot veto a constitutional amendment the way he can veto a piece of normal legislation. In fact, when the 13th amendment was passed, irrevocably abolishing slavery in the US, Lincoln worked to get it ratified, and he signed a copy of it as a symbol of his support. He got a handwritten copy of the 13th amendment, approved by Congress, and he signed it, whereupon Congress said, “You can’t sign this, President Lincoln, because the president has no role in the passage of the amendment. You’re trampling on our powers.”
Didn’t know that.
Yeah, they got annoyed when he signed it. Signing it didn’t make it legal or illegal. It becomes part of the constitution when it’s ratified by Congress and by a sufficient number of states.
But the point is, Lincoln was a mainstream Republican. He was a great man, a brilliant writer and speaker, but he was also a party man. And the 14th amendment was approved by almost every Republican in Congress. There is no question Lincoln would have approved it. Also, Lincoln did not get into big fights with Congress the way some presidents have. So I think the basic principle, equality before the law, Lincoln had come to approve that during the civil war. He didn’t really hold that view before the civil war. But there’s no question in my mind that if Lincoln had not been assassinated, and was still president, he would have happily urged Congress to support the 14th amendment.
Is birthright citizenship a uniquely American concept?
Well, that is another complex and important issue and something that is back on the political agenda today. Is it uniquely American? No, it’s not. There are other countries that also automatically make you a citizen.
But the point of birthright citizenship is it’s very important in the constitution to have this. It’s basically a statement that anybody can be a citizen. We are not a country based on a single religion, we are not a country based on a single political outlook, we are not a country with an official sort of set of doctrines that you have to adhere to. We’re not a country with an ethnic identity. A person of German ancestry born in Russia could automatically be a citizen of Germany, just by that ethnic identity. But the child of a guest worker, born in Germany, is not automatically a citizen of Germany.
So birthright citizenship is an important consequence of the civil war. And of course, it had been deeply debated before then. Just before the civil war, in 1857, the supreme court in the Dred Scott decision ruled that no Black person could be a citizen. There were half a million free Black people. They were born in the US, most of them, and they could never be a citizen.
The first section of the 14th amendment abrogates the Dred Scott decision, and creates a national standard for who is a citizen. The original constitution mentioned citizens, but it didn’t say who exactly they are, or what are the qualifications for being a citizen. So this clears up an ambiguity of the constitution and establishes a basic principle, equality, as fundamental to American life.
Does that mean between Dred Scott in 1857 and the 14th amendment in 1868 that African Americans, even if they had liberated themselves and fought in the union army, were not citizens?
Well, the Republican party and Lincoln had repudiated the Dred Scott decision on paper. Even as early as 1862, the attorney general, Edward Bates, issued a ruling saying Dred Scott was wrong.
But what you said is true, it’s the 14th amendment that creates Black citizenship as a constitutional principle. The Civil Rights Act of 1866 established it in national law. By then 200,000 Black men had fought in the civil war. They were almost universally considered to be citizens. If you would fight and die for the nation, they’re not going to say after the war, “You can’t be a citizen.”
Dred Scott destroyed the reputation of the supreme court in the north. During the secession crisis, nobody said, “Let’s let the supreme court decide this.”
Unlike the Declaration of Independence, or the constitution, whose signers are well known, the 14th amendment is more anonymous. Who were the principal authors?
It was written by the joint committee on Reconstruction, a 15-member body set up by Congress to figure out what laws and constitutional amendments were necessary to enforce the verdict of the civil war.
My book The Second Founding begins by saying exactly what your question says. People have heard of James Madison, “father of the constitution”. They have heard of Alexander Hamilton, for reasons we know nowadays. These are people who were critical in writing the constitution.
But who remembers John Bingham, the congressman from Ohio, who was more responsible than anyone else for the first section of the 14th amendment, about the federal government having the power to prevent states from denying Americans equality? We don’t remember Thaddeus Stevens, the great radical Republican from Pennsylvania who was the floor leader in the House, who did more than anyone else to get the 14th amendment ratified. We don’t remember James Howard, from Michigan, who got it through the Senate. In other words, the 14th amendment is not seen as fundamental to our constitutional system, whereas, of course, the original constitution is.
So what I say in my book is, we’ve got to think of these people as like the founding fathers. This was a refounding of the nation, and the people who were critical in that deserve to be remembered.
Were there parts that could have been written more clearly?
The writing was in two modes. One was very clear. If you loaned money to the Confederacy, it’s never going to be repaid. That’s a highly specific point. But the language of the first section of the 14th amendment is much more ambiguous or general. Equal protection of the law. All citizens are entitled to due process of law. People cannot be denied life, liberty and property without due process of law.
The language might have been clearer. But John Bingham wanted it to be ambiguous. What issues relating to the political equality of race relations would get on to the national agenda in the next 10, 50 or 100 years? He wanted to have a general set of principles which could be applied when necessary, and in fact, the fifth section, the final section of the 14th amendment, specifically states, “Congress shall have the power to enforce” this amendment. What does it mean to enforce the equal protection of the law? Well, that’s for the courts and the Congress and others to decide. So the language could have been clearer, but I’m not sure it would have been better if it were clearer. They wanted it to be ambiguous to leave room for future action.
In other words, they thought this was not the end of Reconstruction. This was just one step toward creating what Thaddeus Stevens called “the perfect republic”, which they wanted to build on the ashes of slavery.
Love that phrase.
That’s Stevens’ speech, before the House. You know, the 14th amendment was a compromise. There were radical Republicans, conservative Republicans, moderate Republicans. And they hammered out a series of compromises. But Stevens, who was a real radical, also knew when you had to compromise. In his final speech before Congress, before the 14th amendment was ratified, he said, “Yeah, I had always hoped that when we could get out from under the power of slavery, we could create this perfect republic that the founders tried to, but failed to, because they allowed slavery.”
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But that dream has vanished, he said. The perfect republic is never really achieved, in any human endeavor. So, yeah, that’s what they were trying to do. Erase the mistakes of the founders, when it came to slavery, and remake the republic.
Could the 14th amendment have passed if Congress had not taken a strong stand against seating southerners?
The passage of the 14th amendment is interesting. Immediately after the civil war, Congress said, “We’re not letting the southern states back in quite yet.” They cannot vote on whether to ratify the three Reconstruction amendments. So the vote in Congress was only among northerners. If the south had had all the congressmen it normally did, the 14th amendment would never have been ratified. You need a two-thirds vote in Congress, and three-quarters of the states. It’s a very high bar to amend the constitution.
But another aspect of this is, could it have passed the states? When the 14th amendment is first passed by Congress, President Andrew Johnson’s plan of Reconstruction is still in effect. Johnson had set up all-white racist governments in the south. They were still in power. And they all voted not to ratify the 14th amendment, every one of the southern states except Tennessee. They did not want Congress establishing this principle of equality for Black Americans.
Congress got so infuriated that in 1867, they abolished those governments. They said, “We are going to give Black men the right to vote.” They hadn’t done that at the beginning of Reconstruction. They’re going to set up new state governments in the south, and those governments are going to ratify the 14th amendment. They ordered them to ratify it. And the way they guaranteed it was to allow Black men to vote. New governments were set up, biracial governments. For the first time in American history, Black and white men were sitting in legislatures, voting on laws, holding public office. This was a radical change in American democracy. And with those new governments, in which Black people for the first time had a voice, the southern states ratified the 14th amendment. So how the 14th amendment was ratified is irregular compared to most other amendments.
Why was section 3 added?
Section 3 is one part of the amendment that has been almost completely ignored until the last couple of years. It doesn’t apply to all southern whites, or even most of them, but to anyone who held an office before the civil war, who took an oath of allegiance to the constitution. That would mean people who served in the military or held some kind of public office. Even a postmaster has to take an oath to the constitution. The purpose was to eliminate the old ruling class of the south from public office. It was to create a space where new governments could come into being which would approve of the principles of the 14th amendment. They did not deny the right to vote to ex-Confederate leaders. But they did deny the right to hold office.
It was almost never enforced. There are only a few examples of this amendment being enforced during Reconstruction. A couple of local officials were disqualified from office because they had held an office before the civil war then served in the Confederate army. In other words, they gave aid to insurrection after having pledged allegiance to the constitution. I think there were a couple in Tennessee. But basically, Congress gave an amnesty after a few years to just about everybody that this covered.
And in the first world war, a socialist member of Congress, Victor Berger, was convicted under the Espionage Act. If you criticized the American participation, you could be put in jail. Congress expelled him under the third clause of the 14th amendment. In other words, he pledged allegiance to the constitution and was now convicted of what they called espionage. It wasn’t actually spying, it was really just opposing the war. But then the supreme court overturned the conviction and Congress let him back in.
In the last year or two, this has become a major issue in relation to Donald Trump. Depending on how you analyze it, Trump took an oath to support the constitution – obviously, when he was sworn in as president – but gave aid to insurrection. If you consider the events of 6 January 2021 an insurrection. He tried to overturn a governmental process, tried to prevent the legitimate election of a president.
There have been lawsuits in a number of states to keep Trump off the ballot in 2024. Thus far, none has succeeded. Some are pending. A couple of cases have come up about lesser officials who took part in the events of January 6. And in fact, a guy in New Mexico, a county commissioner, was ordered out of office by a court on the grounds that he was barred by the third section of the 14th amendment.
A congressman in North Carolina, Madison Cawthorn, faced claims that he could not serve. It became moot because he lost his primary. But there was a court that did say that it was a legitimate question whether he could serve if elected, because he had been there taking part in the events of January 6.
So it’s on the agenda now. But there is no jurisprudence really related to section 3. Nobody knows what the supreme court would say. Some people say you would need a judicial ruling. How do you know that a guy participated? It’s like you’re convicting him without a trial. But on the other hand, others say, no, this is just a qualification for office. This is not a criminal trial.
Being barred from office is not a criminal punishment. It’s one of the qualifications for office. For example, let’s say somebody was elected president who was under the age of 35. The constitution says you have to be 35. Let’s say Alexandria Ocasio-Cortez was elected president. Not likely, but she’s a well-known figure in politics. Well, she couldn’t serve because she’s under 35. And a court or somebody would just have to say, “I’m sorry, you don’t meet the qualifications here.” I am not a law professor. Neither I nor anyone else knows what the courts would decide. But in actuality the 14th amendment says it’s Congress that enforces the 14th amendment, not the supreme court. They didn’t want the court involved because of Dred Scott.
The final section of the amendment says, “Congress shall have the power to enforce this amendment by appropriate legislation.” Would Congress have to declare somebody having participated in insurrection? I don’t know. But this was brought up including by me about two years ago, in the op-ed, in the Washington Post, after the insurrection of January 6.
There was an effort to impeach President Trump, but it didn’t succeed. But I pointed out you don’t need impeachment, which requires a two-thirds vote to convict in the Senate. If you really want to keep Trump out of office because of his actions on January 6, you could do it through the third section of the 14th amendment.
Certainly, regarding a president, there is no precedent. But the third section has never been repealed. So there it is.
Did the 1872 Amnesty Act supersede section 3?
That’s been brought up. The 14th amendment also says Congress can eliminate this punishment or disability by a two-thirds vote. In 1872, in the run-up to the presidential election of that year, Congress did pass a general Amnesty Act, which saved almost all prominent Confederates.
Now, some people say that eliminated section 3, and therefore it can’t be enforced. But that’s not the case. You can let people off from one punishment, but it didn’t say this section is no longer applicable. It said that a whole lot of people would no longer be punished as part of an effort to bring about sectional reconciliation. The Amnesty Act doesn’t necessarily repeal a previous measure unless it says the previous measure is automatically repealed.
How has section 3 been interpreted since Reconstruction?
It has barely been interpreted. There have been only a handful of cases. There’s almost no jurisprudence related to it, which is one of the reasons Congress has been reluctant to enforce it. Joe Biden has said he doesn’t really want to get into this. It would guarantee a prolonged legal battle if you tried to enforce section 3 against Trump. Enforcing it against the county commissioner in New Mexico probably didn’t raise a lot of animosity. But it has happened. So there is a bit of jurisprudence, but not enough that a court could easily say, “Here’s the precedent, this is what we’ve done in the past.”
Is the president “an officer of the United States”?
Again, because there’s no jurisprudence, it hasn’t been decided. A couple of prominent conservative law professors wrote an article saying section 3 is on the books and can be enforced. Then they changed their mind. And they said the president is not an officer of the United States. So it does apply to all sorts of other offices. But not the president.
This has never been exactly determined, but it certainly seems the normal understanding of the term “officer” is someone holding office. The president certainly holds office. When the constitution was ratified, there was no president. The previous constitution, the Articles of Confederation, didn’t have a president. There was no executive officer. It was only the Congress. So it’s unclear. They added the president as someone who could execute the laws. But I don’t see how you can eliminate the president or exclude the president from this language. If you take the whole of section 3, I think it’s pretty clear that they are trying to keep out of office anybody who committed the acts that section 3 describes. But again, it’s complicated.
Did the events of January 6 constitute “an insurrection or rebellion against the constitution”?
They certainly tried to a halt a constitutional procedure, the counting of the electoral votes. One of the more bizarre parts of our constitution, actually, but nonetheless, it’s there.
What is your definition of insurrection or rebellion? You know, this gets into a question we actually haven’t talked about, which is very important in relation to the 14th amendment, which is the notion that you can clearly ascertain the original meaning, or the original intention of a law or a constitutional provision or something like that, and that the constitution should be interpreted according to the original meaning of the people who wrote the provision, or the original intention.
This notion that you can ascertain, clearly, the original intention is absolutely absurd. No important document in history has one intention, or one meaning. Particularly the 14th amendment, it was written with compromises, with 8-7 votes in the joint committee. It was ratified by hundreds of members of state legislatures. Who can tell us exactly what the intention is? It is a legitimate historical question to ask, what were they trying to accomplish? But that’s a little different than saying what was their intention, at least in the legal realm.
Yes, historians are always trying to figure out, why did they write and ratify the 14th amendment? In a way, that’s an intention question.
But to answer that question, unfortunately, justices have a way of going purely to debates in Congress. They do not look at the general historical context. The meaning of the 14th amendment was debated and argued and fought out at all levels of society.
One of my favorite quotations from this period comes from Elizabeth Cady Stanton, the great advocate of women’s rights. She said, during Reconstruction, I’m paraphrasing, “The basic principles of our government were debated at every level of society, in Congress, in the pulpits, in schools, at every fireside.” I love that. In other words, even in their homes, people are debating the issues around the 14th amendment. There is no one single intent that you can locate in that gigantic discussion about constitutional issues, which accompanied the ratification of the 14th amendment. So I think, as most historians would say, it’s a pointless test to try to identify one single intention.
Wouldn’t the legal challenges take longer than the election itself?
Yes, the legal challenges would take a long time, and it would be weird if Trump is elected next fall, then a year into his term of office he’s evicted because he doesn’t meet the qualifications. We saw how Trump reacted to actually losing an election. But now, if he won and then was kicked out of office, that would certainly be a red flag in front of a bull.
Eric Foner, DeWitt Clinton professor emeritus of history at Columbia University, is a Pulitzer prize-winning author whose most recent book is The Second Founding: How the Civil War and Reconstruction Remade the Constitution
Ted Widmer is a distinguished lecturer at the Macaulay Honors College, City University of New York, and a former special assistant to President Bill Clinton. His most recent book is Lincoln on the Verge: Thirteen Days to Washington
Source: US Politics - theguardian.com
