Opinion: Disqualification under the 14th Amendment was once an issue in Tennessee

File photo/Doug Mills/The New York Times / In New Hampshire, Republicans are feuding over whether the 14th Amendment bars Donald Trump from running for president; other states are watching closely. In this file photo, the former president appears with the new State Party Chairman Chris Ager, right, and outgoing State Party Chairman Steve Stepanek, center, after he addressed the New Hampshire Republican State Committee 2023 annual meeting, in Salem, N.H., on Saturday, Jan. 28, 2023.

The 14th Amendment went into effect on July 28, 1868. Its most significant provision was to impose a due process obligation upon the several states. Section 3 of the Amendment, however, was geared to punish certain persons who had aided the Confederacy during the Civil War. Section 3 states:

"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 events of Jan. 6, 2021, at the Capitol have inspired some legal scholars to opine that the "insurrection" that occurred there subjects former President Donald Trump to the disqualification imposed by of Section 3 of the 14th Amendment.

Proceedings that occurred in Virginia and Tennessee in the years after the Civil War shed light on the disqualification clause. The question then, as it is now, is whether Section 3 was "self-executing." In non-lawyer terms, is legislation required to put Article 3 into effect, or by its very existence does it disqualify a person who engaged in "insurrection?"

In 1869, in connection with the upcoming state constitutional convention, a Tennessee lawyer opined that without a judicial determination that the facts giving rise to the disability imposed by Section 3 (i.e., participation or aiding in the rebellion), there could be no disqualification. But in Virginia, U.S. District Judge John Underwood found that the provision was indeed "self-executing."

Underwood's decision was reviewed by Salmon P. Chase, chief justice of the U.S. Supreme Court. Writing in Griffin's Case, Chase opined that legislation was necessary to put Section 3 into effect. He deemed two provisions of the 14th Amendment relevant to the issue: First, he observed that the final clause of Section 3 gave Congress the power to remove the disability imposed by Section 3 by a two-thirds vote. Second, he noted that Section 3 must be read in the context of Section 5 of the 14th Amendment, which states: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

He found that the language "gives to [C]ongress absolute control of the whole operation of the amendment." His decision requiring action by Congress was written in 1869. Congress responded, and on May 31, 1870, President Ulysses S. Grant signed into law the Enforcement Act of 1870. Section 14 of the Act provided that the United States attorney had the power to file a quo warranto (a means of challenging a right to an office) action in federal court to remove from office someone disqualified by Section 3.

Section 15 made a disqualified person holding an office a misdemeanor "upon conviction thereof ... [and] shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court."

Federal authorities in Tennessee acted quickly. In Middle Tennessee, quo warranto writs were issued for a number of local officials in early October 1870. On Oct. 22, 1870, the U.S. attorney filed charges against three of the newly elected six justices of the Tennessee Supreme Court. But as hard feelings from the late Civil War cooled, the clock ran out on most of these cases, and none of the state justices were removed. Eventually, most of the cases were dismissed. Sections 14 and 15 of the Enforcement Act of 1870 remained on the books until 1948.

It is therefore a historical fact that in the first matters in which Section 3 of the 14th Amendment became relevant, the chief justice of the United States and the Congress of the time considered legislation to implement Section 3 was needed to disqualify an "insurrectionist" from office, which legislation required a judicial determination to effect the disability imposed by Section 3.

The wisdom of this position is evident. Depending on one's political stripes, the unfortunate events of Jan. 6 were variously an "insurrection," a "riot," a demonstration gone bad, or an unscheduled tour of the Capitol where people wearing bizarre costumes got a bit unruly.

In our system, the courts determine the legal significance of such events. It is noteworthy that none of the persons charged in connection with the events at the Capitol have been charged by the Biden Justice Department with violation of 18 USC §2383, which makes insurrection against the United States illegal and disqualifies a person convicted thereof from future office. Donald Trump, now indicted four times over, has yet to be charged with that crime. A criminal charge of insurrection requires indictment, trial and conviction — in other words, due process. Article 3 of the 14th Amendment is not a convenient means to evade those requirements.

Sam D. Elliott, a member of the law firm of Gearhiser, Peters, Elliott and Cannon, is a past-president of the Tennessee Bar Association and the Chattanooga Bar Association, a member and former chairman of the Tennessee Historical Commission, and the author or editor of several books and articles on Tennessee in the Civil War era.