B. Section 3 is a Vital Tool of Self-Protection for Our Republic
Section 3 was the means by which the 39th Congress sought to protect against the re-establishment of political power by former insurrectionists. There were alternatives debated for how this might be executed. Stripping former insurrectionists of their voting rights was one method debated at length. But although the methods of how best to protect against the political empowerment of former insurrectionists were the subject of intense debate, Republicans who led the Reconstruction Congress were unified in their view that loyalty to the Constitution must be a prerequisite for public service. What ultimately became Section 3’s provisions barring insurrectionists who had violated their oath of office, from serving in federal or state government or in the military, was a compromise that it was believed would protect against the return to power of unrepentant former rebel leaders, whom many southerners continued to regard as “the best portion of our citizens.”8
The adoption of this compromise was an explicit rejection of President Johnson’s vision of Reconstruction
(or as he preferred to call it ‘restoration”), in which former rebel states would be welcomed with open arms back into the Union, led by men who had without inquiry or evaluation of loyalty to the country, taken the reins once again of local leadership. Indeed, former rebels had not only returned to lead state offices. Many sought to be seated in the House and Senate as the duly elected congressional representatives of their state. “The Vice President of the Confederacy, four Confederate Generals, five Confederate colonels, six Confederate cabinet officers, and fifty-eight Confederate Congressmen, none of whom was able to take the oath of allegiance” sought to be seated when Congress opened.
To allow former insurrectionists to hold office would, the Joint Committee on Reconstruction believed, render the United States, “powerless for its own protection,” allowing “[t]reason, defeated in the field” to prevail in political office. By making loyalty to the Constitution a prerequisite for serving in public office, the 39th Congress equipped our republic with a critical tool of self-protection. But the 39th Congress also well understood that the return to office by insurrectionists would ultimately defeat the guarantees of citizenship and equal protection in Section 1.
The Senate was hearing directly from Black people in southern states about the conditions in which they were living under white rule. Violence was rampant. Black Codes were enacted in states throughout the South rendering freedmen unable to rent a home in town, walk on public roads without proof of employment, or to sell, barter or exchange merchandise without permission of that white employer. Black conventions and assemblies in Alabama, Georgia, North Carolina, South Carolina and New York, the latter attended by Black delegates from across the country, were meeting and issuing petitions and resolutions, which were sent directly to the Senate and to President Johnson. In these petitions they described the dire conditions of life under the control of unrepentant and violent white leaders. Black Mississippians were unable to “assemble” because of fears of hostility and violence, but in a simple petition explained they their “fear that they were to be reenslaved.”
Black Alabamans reported that a number of their churches had been burned and that they were routinely subject to violent threats, and that “many of their people daily suffer almost every form of outrage and violence at the hands of whites….that many of their people are now in a condition of practical slavery, being compelled to serve their former owners without pay and to call them ‘master.’” All emphasized the need for Black voting rights as the only means of self-protection against “Southern hate” and “malign hostility.” These and other reliable accounts convinced abolitionist Senators that “the reconstructed states were in the power of the rebels.”
Rights were meaningless without protection. Section 1 would have no integrity or meaning if the defeated insurrectionists could, having laid down their arms, take up the gavel and pen to continue their rebellion. For this reason Section 3 is integral to the overall vision of the amendment. All of the Amendment’s provisions reflect an Interlocking set of priorities– a bold and expansive promise of citizenship for Black people, and the pragmatic tools for protecting the promise of full citizenship, and protecting the integrity of the republic. The Amendment reflects a masterful integration of aspiration and a cleareyed assessment of the challenges ahead. When viewed in this light, Section 3 is a vital part of the infrastructure of the 14th Amendment. That it has seldom been used is neither surprising nor unwelcome. Insurrection in a stable democracy should be rare and firmly rejected. But when it occurs, its proponents must be barred from political leadership.Trump’s Insurrection Exemplifies the Threat Anticipated by Section 3. Former President Donald Trump fomented, encouraged, and participated in an insurrection designed
to overturn the results of the 2020 presidential election and interfere with the peaceful transfer of power. This has been recognized and affirmed by courts, political leaders of both parties,11 and the pre-eminent scholar of the Reconstruction period.
Trump did so by encouraging millions of his followers to come to the Capitol on January 6th with orders to “take back our country.”13 Trump encouraged his assembled supporters to go to the Capitol to “stop the steal.” He called his duly elected successor as President “illegitimate” and told them that “different rules ”apply” when you “catch somebody in a fraud.” He knew that many in the crowd were armed, but dismissed safety concerns, saying, “They’re not here to hurt me.” Trump explicitly exhorted the crowd to “fight like hell.” Promising he would accompany them, Trump told his followers on January 6th that once at the Capitol they would “try and give our Republicans, the weak ones . . the kind of pride and boldness that they need to take back our country.” Id. Trump also made Vice President Mike Pence, a target of his anger, and encouraged the crowd to do so as well. Later when protesters shouted, “Hang Mike Pence,” and assembled a mock gallows outside the Capitol, Trump reportedly told aides that his Vice President deserved the crowd’s anger, because of Pence’s refusal to acquiesce to Trump’s illegal plan to replace legitimate state electors with his own.
During the most violent part of the insurrection, Trump tweeted, encouraging the crowd to “BE STRONG,” and continuing to urge Vice President Pence to “[d]o it[!].”15 As the violence continued, Trump watched on television, refusing to heed calls that he call-off the mob despite pleas from his daughter, the Senate Majority Leader, the Ranking Member of the House, the Chair of the Senate Judiciary Committee Lindsey Graham, and many other Republicans. But Trump’s attempt to overturn the election began well before January 6th. The use of racist tropes and stereotypes were key features of his efforts. Trump stoked his followers for over month with a false narrative discrediting the votes cast by voters in jurisdictions with high concentrations of Black voters. Trump’s claim of having won the election was premised on this charge. His narrative was not subtle. Trump insisted that votes cast in Detroit, in Philadelphia, and in Atlanta had been miscounted, handled improperly, manufactured or destroyed.16 In the weeks following Election Day, Trump repeatedly sought to discredit votes cast in those cities.
Trump’s targeting of those jurisdictions was not accidental. By targeting “urban” areas that his followers would associate with race and using racist dog whistles to describe voters in those jurisdictions and those charged with counting the votes, Trump created a narrative his followers would embrace. His relentless and unfounded attacks on two Black polls workers, Shaye Moss and her elderly mother Ruby Freeman, were blatantly racist in nature. At one point, Trump referred to the women as “hustlers.”Trump’s racially targeted actions seeking to disqualify votes cast by Black voters have resulted in four lawsuits: two charging violations of 42 U.S.C. § 1983 (“the KKK Act”), one filed on behalf of the United States, and one by the NAACP Legal Defense Fund.
Trump’s followers acted on his racial targeting. On November 4, 2020, a mob of white protesters surrounded the TCF Center in Detroit where ballots were being counted.19 There were several reports of people taking photographs of Georgia voters in their cars at their respective voting locations. The former President’s lawyer, Rudy Giuliani, added to the racialized narrative of Trump’s false claims, accusing the two Black poll workers—Ms. Moss and Ms. Freeman— of improperly handling votes and confiscating flash drives of vote tabulations, suggesting that they were “passing [the flash drives] between them like vials of heroin.” Moss later testified under oath that what her mother passed her was, in fact, a ginger mint. A Trump follower harassed the two election workers, visited their homes, and attempted to press them to “confess” to having engaged in illegal activity.21 Another follower attempted to execute a so-called “citizens’ arrest” of Moss and Freeman by showing up at the home of Moss’ elderly grandmother, demanding entry.
For Black Americans, this particular threat carries profound and terrifying significance. The guise of a “citizens’ arrest” was often used to take custody of innocent Black people who were then lynched. Ruby Freeman testified before the January 6th Committee that, after being targeted by President Trump as part of his insurrectionist scheme, she no longer feels safe. “Can you imagine how it feels to be targeted by the President of the United States?,” she asked. “There is nowhere I feel safe,” the 64 year-old Freeman testified. The Georgia Board of Elections later confirmed that Jason Szep and Linda So, Kanye West Publicist Pressed
Trump and Giuliani’s allegations against Freeman and Moss were false and “unsubstantiated.”24 Two years later Moss and Freeman successfully sued Rudy Giuliani for defamation and were awarded a judgment of nearly $150 million.25 But the damage was done. Moss and Freeman testified that they still feel unsafe, and precautions are undertaken to ensure their safety. Death threats from white supremacists plagued Black officials, especially postal and other federal workers, in the aftermath of the Civil War. White officials of the Freedman’s Bureau were also subject to violent attack by white racists. Attempts to overturn elections when Black or Republican candidates won was also a feature of Reconstruction. These challenges by southern whites often involved violence—threats, intimidation, and in far too many cases murder.26 The remarkable similarity of the threats and violence precipitating Trump’s insurrection to similar attacks in the south during the Reconstruction is an uncanny, but important indication that Section 3 remains relevant and important to the protection of our republic.
It is perhaps no wonder, that the violent insurrectionists who Trump ordered to “walk down to the Capitol” and whose rampaging he refused to denounce or discourage, stormed the Capitol bearing Confederate flags alongside Trump flags.They fully internalized the racially-fueled messaging of Trump’s plan to overturn the election by any means necessary, including violence. One insurrectionist even paraded a large Confederate flag across the second floor of the Capitol—an affront that even members of the Reconstruction Congress never witnessed, and likely could not have imagined. Legitimate votes cast by Black voters to fuel his effort to overturn the results of the presidential election, former President Trump’s insurrection touched on key concerns of the 39th Congress in its drafting of, and deliberations about the 14th Amendment.