Several states, including Massachusetts, are grappling with interpreting Sec. 3 of the Fourteenth Amendment. That is the one that says (and I am paraphrasing, but here is the text) anyone who once took an oath to uphold the United States Constitution and then engaged in “insurrection or rebellion against the same” or anyone who gave aid or comfort to anyone who engaged in insurrection or rebellion shall be denied any office, federal or state, civil or military, unless 2/3 of both the United States Senate and House of Representatives vote otherwise. Basically, it bars these massive flip-floppers from holding office.
Given the insurrection and rebellion on January 6, 2021, indictments, trials, convictions, and sentences of some of the actors as well as pending litigation regarding others, maybe it makes sense to review – really, really briefly - how and why this very specific section of the Fourteenth Amendment came to be.
The two principal architects of the 14th Amendment, John Bingham and Thaddeus Stevens, were not naïve men. Both were well aware that the slave-holding powers in the South and those who profited from the same in the North benefitted from flaws in the original Constitution. Both of these men wished to create a world in which the second sentence of the Declaration of Independence could become a reality for all Americans.
They knew that writing pretty words and making forceful declarations would not suffice. They had to craft a way to enshrine the privileges and rights previously guaranteed to some for all; further, they had to allow for new voices to be heard in state and federal governments. The only way to do that would be to prohibit those who were previously in power from holding office as those people would inevitably silence the people previously shut out. In fact, their original plan was to bar people who engaged in rebellion from voting at all. Section 3 is a compromise. And, even though the powerful, brilliant, and majestic 14th Amendment is written very much like the war reparations it was intended to be, the entire Amendment is really just a shell of what its authors dreamed of. Their willingness to compromise came about because they – as all of the so-called Radical Republicans – knew how tenuous was the victory of the Civil War.
This week, in fact, marks the beginning of the turn toward that fragile Union win. On September 17, 1862, the famed bloody Battle of Antietam began. This was General Robert E. Lee and his insurrectionist, rebellious troops’ first foray bringing the Civil War battles to Northern states. It would take nearly twice as many Union forces to hold off the rebellious onslaught. This battle alone resulted in over twenty thousand casualties (wounded and killed). To this day, Antietam marks the single deadliest day in American history.
This inconclusive battle – which some historians believe could have been significantly more decisive if McClellan had pursued Lee’s retreat - would, however, be the beginning of the end of the war. Photographs of the battlefield strewn with thousands of dead soldiers made their way to Northern cities. Lincoln lost faith in McClellan and relieved him of his leadership role. After a series of decisive Union losses, however, the ambivalent result of Antietam, just 65 miles from Washington, DC prompted Lincoln to issue his Emancipation Proclamation. This shift redefined the war, finally, as a war to end slavery in the United States. This clear directive scared off foreign wealthy powers such as England and France from siding with Jefferson Davis and the states in rebellion because they could not bear to be seen as pro-slavery. Antietam is the turning point that would lead to Union victory, to Lincoln’s re-election (and, sadly, his assassination), to civil rights initiatives, and to the Reconstructionist Amendments.
It is the blood spilled at Antietam 161 years ago this week that would nourish the direction of the nation. It is hallowed ground. Indeed, the Union soldiers who died there were all reburied on-site (actually on ground that had been held by the rebel forces). These heroes lie within sight of the large boulder where Lee stood to review his battle plan. They did not live to witness Lee’s surrender to General Grant at Appomattox Courthouse. But, they did not die in vain.
Cemetery at Antietam Rabbit Hole – There was a large boulder at the battle site which came to be known as Lee’s Rock. It was the high ground upon which Lee stood surveying the terrain. The giant rock is no longer there. It turns out that shortly after the war, people did not want to glorify the folks who lost who also happened to be those responsible for the thousands dead near Antietam Creek. Because the rock had become a gathering point and almost a shrine to General Lee (who, remember, was a traitor and an insurrectionist - the actual opposite of a hero), folks in the 1860's and 1870's decided that it would be better to remove the boulder rather than have a memorial to Robert E. Lee overlooking the graves of the Union soldiers who fought for their country and not against it. Let that be a lesson today to those who want to "preserve" the statues and memorials and homilies for traitors. Just say no.
So, as Secretaries of State and courts today review whether or not to keep individuals who formerly took an oath to protect and defend the United States Constitution but then participated in insurrection or rebellion against the same off the ballot, they should remember those who fought for the Union on the battlefield. They should remember those who worked in Washington on our historical arc bending toward justice as they wrote and negotiated legislation to perfect that Union. The Framers of the Fourteenth Amendment knew that compromise would govern these changes. But, core values cannot be subject to that compromise. Indeed, our Union would be worthless if it could not guarantee to all citizens due process and equal protection under the law without also sanctioning those who took an oath to protect those rights only to mutiny and fight for the exact opposite principles.
The people who stormed the Capitol on January 6, 2021 in insurrection and rebellion, their friends and allies, those who gave comfort to them in any way, shape, or form, and certainly those who led the charge in word and deed are traitors just as clearly as those who fought to uphold slavery in the Civil War. Any of them who previously swore to uphold the United States Constitution should be prevented from holding civil or military office under Section 3 of the Fourteenth Amendment unless 2/3 of Congress votes to relieve them of that disability.
To do otherwise would denigrate the sacrifices of the soldiers buried at Antietam, the lifelong work of Thaddeus Stevens and John Bingham, and all who have fought under the flag and for the United States Constitution. This is not revisionist history: the Union won the Civil War. The Reconstructionist Amendments became part of the Constitution that all who now swear to uphold it also promise to defend. Anyone incapable of doing that – especially those who engaged in insurrection and rebellion against the same - at a minimum, should not be permitted to hold elected or appointed office.
The reason we know so little about Section 3 of the Fourteenth Amendment is because, as bad as some office holders have been, their transgressions have largely been personal. A few were removed by impeachment, some went to prison, others have been shunned by the voters. But since the passage of the Fourteenth Amendment, none of them - until recently - has waged war against this country, its values, its institutions, and its people. The Supreme Court of the United States has fallen in love with the notion of textualism. If it wants to be literal and textualist, fine. Section 3 does not use archaic words, it is not obscure or easily misinterpreted or, in any way, unclear. Its plain language bars those who once promised to uphold the Constitution but then rose up in insurrection against the United States of America from holding office in these United States. It should mean what it says.