The Supreme Court heard oral arguments on Feb. 8 to determine whether former President Donald Trump could appear on the state of Colorado’s primary ballot. The arguments come after the Colorado Supreme Court ruled in Anderson v. Griswold that Trump couldn’t appear on the state’s primary ballot.
The decision hinges on the interpretation of the rarely-used, nearly 150-year-old Section 3 clause in the 14th Amendment. The clause comprises just 110 words, and disqualifies anyone who shall have “engaged in insurrection or rebellion” against the U.S. or “given aid or comfort to the enemies thereof” from holding a state or national office in the U.S.
The clause dates back to 1866, and came about as the country was grappling with the issue of how to reintegrate thousands of Confederate officials who had just engaged in active rebellion.
The clause changed significantly during the 14th Amendment’s passage through Congress. The original House of Representatives version of Section 3 disenfranchised “all persons who voluntarily adhered to the late insurrection, giving it aid or comfort,” until July 4, 1870.
It was in the Senate where the current version of the clause took shape, removing the expiration date and disqualifying insurrectionists from holding political office, rather than removing their enfranchisement. The clause, however, didn’t include a method to prove that someone engaged in insurrection.
The 14th Amendment, including Section 3, was ratified on July 9, 1868. Two years later, Congress passed the Enforcement Act of 1870, giving federal prosecutors power to enforce the disqualification parameters set out by the 14th Amendment.
But there wasn’t much time for federal prosecutors to use this newfound power. Soon after former President Ulysses S. Grant’s reelection in 1872, he signed the General Amnesty Act of 1872 into law, making Section 3 moot for the vast majority of former Confederates.
In the interval between enforcement and amnesty, Zebulon Vance was the most notable case of a politician denied office by the 14th Amendment. During the Civil War, Vance served as the Confederate governor of North Carolina. In 1870, he was appointed as a Senator from North Carolina, but was denied his seat in the body. Vance would eventually get amnesty and serve as Senator from 1879 to 1894.
A few decades later, Victor Berger found himself barred from his seat in the House of Representatives under the 14th Amendment. Berger was indicted and convicted for disloyal acts under the Espionage Act based on editorials he wrote opposing World War I.
Berger was running for Congress while under indictment and won his election. The House cited the “given aid or comfort” section of the 14th Amendment and barred him from his seat by a vote of 309 to 1.
Berger ran again in 1919 to replace himself in a special election. After another victory, the House refused to seat him again. But Berger would only have to wait a few years before he regained his seat in Congress. The Supreme Court overturned his conviction in 1921, and he took his seat in Congress in 1922.
More recently, two politicians who were present during the events of Jan. 6. 2021, have had brushes with Section 3.
Couy Griffin, a former county commissioner in New Mexico, was found by a judge to have engaged in insurrection on Jan. 6, 2021. He was removed from his office in 2022. He lost his appeal in the case.
The second politician who nearly found himself in court was former Rep. Madison Cawthorn of North Carolina. But the case never went to trial, as the 14th Amendment lawsuit was dismissed after he lost in his 2022 primary election.