The 14th Amendment’s “Disqualification Clause” Was Drafted to Protect the Republic from Violent Overthrow

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. But Congress may by a vote of two-thirds of each House, remove such disability.

The Congressional Research Service of Congress has published an explanation of the Disqualification Clause that can be accessed here. The clause bars a person from holding any state or Federal office, now or in the future, if that person ever taken an oath of office and then engaged in rebellion or insurrection, even if the person was no longer holding the office at the time of the rebellion.

Prior to the Civil War, there were a surprisingly large number of cases involving insurrection or rebellion against the United States government. The Whiskey Rebellion of 1794, the Fries Insurrection of 1799-1800, and the Burr Conspiracy are all well-known insurrections of the first decades of the United States. While the Whiskey Rebellion was not an attempt to overthrow the government of the United States, it was still viewed as an insurrection because it involved violent resistance to Federal law and authority. The Fries Insurrection was even more limited. Fries was an auctioneer who organized men in Western Pennsylvania to resist a Federal tax. The group burned the homes of some tax collectors.  Fries and two of his colleagues were convicted of treason and sentenced to be hung in 1800. In the Circuit Court charge to the jury, Justice Samuel Chase said:

the court are of opinion, that any such insurrection or rising to resist, or to prevent by force or violence, the execution of any statute of the United States, for levying or collecting taxes, duties, imposts, or excises; or for calling forth the militia to execute the laws of the Union, or for any other object of a general nature or national concern, under any pretence, as that the statute was unjust burthensome, oppressive, or unconstitutional, is a levying was against the United States, within the contemplation and construction of the constitution. The reason for this opinion is, that an insurrection to resist or prevent, by force, the execution of any statute of the United States, has a direct tendency to dissolve all the bands of society, to destroy all order and all laws, and also all security for the lives, liberties and property of the citizens of the United States. The court are of opinion, that military weapons (as guns and swords, mentioned in the indictment) are not necessary to make such insurrection or rising amount to a levying war, because numbers may supply the want of military weapons, and other instruments may effect the intended mischief. The legal guilt of levying war may be incurred without the use of military weapons or military array. The court are of opinion that the assembling bodies of men, armed and arrayed in a warlike manner, for purposes only of a private nature, is not treason, although the judges, or other peace officers, should be ‘insulted or resisted, or even great outrages committed to the persons or property of our citizens.

Justice Chase further said that: “if a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force” and “they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war.”

President John Adams later pardoned the Pennsylvanians.

It will surprise many Americans today to learn that violent opposition to the enforcement of the Fugitive Slave Act led to prosecutions for treason because they were considered insurrections. For example, when the resistance to the recapture of a fugitive slave led to the death of one of the slave catchers in Christiana, Pennsylvania in 1851, 41 of the resisters were under threat of being tried for treason to the United States.

In a recent essay on this topic, Mark Graber wrote that a key to understanding pre-Civil War treason and insurrection jurisprudence is an understanding of what acts constituted “levying war” against the United States. Graber explains:

The 19th-century understanding of “levying war” was more expansive than contemporary analysts might realize. Federal judges in the 1850s maintained that organized resistance to federal law—not an effort to overthrow the government—was the linchpin of treason. “The words ‘levying war’ include not only the act of making war for the purpose of entirely overturning the government,” Curtis informed grand jurors in Massachusetts, “but also any combination forcibly to oppose the execution of any public law of the United States.” The judge’s instructions continued: “I hardly need inform you that it is not material what law of the United States is thus resisted. We can know no distinction between one law of the United States and another.” Constitutional government depended on the sanctity of all laws.

…When confronting resistance to the Fugitive Slave Act, federal judges adopted the common law rule that in treason, all involved are principals—there are no mere accessories. Ordinarily, a person who gives a gun to a friend knowing the friend intends to murder someone is an accessory to murder, but not a murderer himself. But a person who gives a gun to a friend knowing the friend intends to participate in an insurrection is as much a traitor as the friend. Sprague and Curtis both stated, “All those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”

Graber writes that legal scholars supported the half-century of case law on what constituted an insurrection:

The leading legal treatises published between the ratification of the Constitution and the ratification of the 14th Amendment endorsed the law of treason advanced by federal judges. Such luminaries as Joseph Story, William Rawle, William Duer, Simon Greenleaf, Francis Lieber, and Nathan Dane agreed that organized resistance to any federal law was treason when the resisters had a public purpose, and that all people leagued with such insurgents were traitors. Rawle wrote that “an insurrection, the object of which was to suppress an office of excise established under a law of the United States,” was “a levying of war against the United States.”

In drafting the 14th Amendment, Congress was aware that case law and legal treatises held that violent resistance to Federal law was “insurrection or rebellion.” The fact that nearly a million men engaged in insurrection during the Civil War, some of whom had sworn an oath to the United States, led to this being incorporated into the Constitution.