At least eight public officials have been formally adjudicated to be disqualified and barred from public office under Section 3 of the Fourteenth Amendment since its ratification in 1868.
Section 3, also known as the Disqualification Clause, has gained new relevance in the wake of the January 6th insurrection, when a violent mob that then-President Trump summoned and urged to “fight like hell” seized the United States Capitol to disrupt the peaceful transition of power. Adopted after the Civil War to protect American democracy from those who sought to destroy it, Section 3 disqualifies from office anyone who swore an oath to support the Constitution as a federal or state officer and then engaged in insurrection or rebellion against it, unless Congress removes the disqualification by a two-thirds vote.
CREW analyzed historical records to identify all public officials who a court, legislature, or other body determined to have been disqualified under Section 3. The list includes six officials aligned with the Confederacy who held office after the Civil War, as well as former New Mexico County Commissioner Couy Griffin, who a state court removed from office last year based on his participation in the January 6th insurrection following a lawsuit CREW brought on behalf of three New Mexico residents.
Section 3 adjudications against former Confederates were rare in the aftermath of the Civil War. That is because it was widely understood that former Confederates who took an oath to support the Constitution before the Civil War were disqualified under Section 3 and therefore many likely did not seek office in the first place. In fact, ex-Confederates flooded Congress with thousands of amnesty requests to “remove” their Section 3 disqualification, demonstrating that they understood themselves to be disqualified even without a formal adjudication. In addition, the window for disqualifying ex-Confederates was small: the Fourteenth Amendment was ratified on July 9, 1868, and Congress removed the Section 3 disqualification for most ex-Confederates less than four years later in the Amnesty Act of May 22, 1872 (that statute withheld amnesty from Confederate leaders such as Jefferson Davis). So while only eight officials have been formally ruled to be disqualified under Section 3, thousands more were understood to be disqualified in the period between the Fourteenth Amendment’s ratification in 1868 and Congress’s passage of the Amnesty Act in 1872 that applied to former Confederates.
Historical precedent also confirms that a criminal conviction is not required for an individual to be disqualified under Section 3 of the Fourteenth Amendment. No one who has been formally disqualified under Section 3 was charged under the criminal “rebellion or insurrection” statute (18 U.S.C. § 2383) or its predecessors. This fact is consistent with Section 3’s text, legislative history, and precedent, all of which make clear that a criminal conviction for any offense is not required for disqualification. Section 3 is not a criminal penalty, but rather is a qualification for holding public office in the United States that can be and has been enforced through civil lawsuits in state courts, among other means.
The precedent likewise confirms that one can “engage” in insurrection without personally committing violent acts. Neither Kenneth Worthy nor Couy Griffin were accused of engaging in violence, yet both were ruled to be disqualified because they knowingly and voluntarily aided violent insurrections. These rulings are consistent with the views of Attorney General Henry Stanbery, who opined in 1867 that when a person has “incited others to engage in [insurrection or] rebellion, he must come under the disqualification.” President Andrew Johnson and his Cabinet approved that interpretation, and Johnson directed officers commanding the Southern military districts to follow it.
Below is the full table of past disqualifications from public office under Section 3:
|wdt_ID||Name||Took oath in what public position?||"Engaged" in insurrection how?||Public position when disqualified||Mechanism of disqualification||Deciding body||Court Review||Convicted of a crime?||Year||Notes|
|1||Kenneth H. Worthy||County Sheriff||Held local office in a Confederate state. Worthy was not accused of engaging in violence.||County Sherriff||
Mandamus action by Worthy to challenge his disqualification by county commissioners under state law implementing Section 3.
|North Carolina Supreme Court||Yes. Worthy v. Barrett, 63 N.C. 199 (1869), appeal dismissed, 76 U.S. 611 (1869)||No||1869||“The oath to support the Constitution is the test. The idea being that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.”|
|2||William L. Tate||County Attorney||Served as an officer in the Confederate Army||State Solicitor||Mandamus action by Tate challenging his Section 3 disqualification by state judge.||North Carolina Supreme Court||
Yes. In re Tate, 63 N.C. 308, 309 (1869)
|3||J.D. Watkins||District Attorney||“Engaged in the late rebellion” (unclear precisely what Watkins did)||State Judge||Quo warranto action filed against Watkins under state law and Section 3.||Louisiana Supreme Court||
Yes. Louisiana ex rel. Sandlin v. Watkins, 21 La. Ann. 631 (La. 1869).
|No||1869||Court confirmed state courts can enforce Section 3 and that Section 3 is not a criminal punishment but a qualification for office.|
|4||Zebulon B. Vance||U.S. Rep (NC)||NC governor under Confederacy. Served in Confederate army.||U.S. Senator (NC)||Congress refused to seat, though Senate refused disqualification petition by losing candidate.||U.S. Senate||No||No.||1872||Vance was arrested and imprisoned in 1865, during the Civil War. Later the same year, he applied for and was granted parole through President Johnson’s amnesty program. Vance was formally pardoned in 1867, though no charges were ever brought against him.
Vance was elected by the state legislature to his U.S. Senate seat. His appointment was challenged by the losing candidate. Neither were seated. At the time, President Andrew Johnson's amnesty program did not apply to former U.S. Representatives. Ultimately re-elected in 1878 and served a long U.S. Senate tenure.
|5||A.F. Gregory||Unclear||Unclear||Local Postmaster (Grayson County, VA)||Removed by Postmaster General following a quo warranto action filed in court||Postmaster General||No||Unclear||1871|
|6||Victor L. Berger||U.S. Rep (WI)||Conviction under Espionage Act, and being “disloyal to the United States, giving aid and comfort to a public enemy, [and for] publication of expressions hostile to the government.”||U.S. Rep (WI)||Congress refused to seat.||U.S. House of Reps.||No||Yes, convicted under the Espionage Act. In 1921, the Supreme Court overturned Berger’s conviction based on Berger’s affidavit of prejudice against the presiding judge. Berger v. United States, 255 U.S. 22 (1921).||1919||Convicted under the Espionage Act. While under indictment, elected to the House in 1918. Congress formed a committee that on 11/10/1919 decided to leave the seat vacant citing Section 3. Conviction appealed and overturned by the US Supreme Court after disqualification. Afterward, Berger lost election to the 67th Congress, but successfully won election to the 68th, 69th, and 70th.|
|7||Couy Griffin||County Commissioner||Mobilizing the mob before the Jan. 6th Capitol insurrection, and then joining and inciting the mob attack on Jan. 6th. Griffin was not accused of personally being violent or entering the Capitol building.||County Commissioner||Quo warrant action filed against Griffin under state law in state court.||New Mexico State District Court||Yes. New Mexico ex rel White v. Griffin, 2022 WL 4295619 (N.M. Dist. Sept. 6, 2022), appeal dismissed and reconsideration denied, No. S-1-SC-39571 (N.M. Feb. 16, 2023)||Yes, convicted of trespass; acquitted of disorderly conduct.||2022|
|8||John H. Christy||Unclear||“[V]oluntarily giv[ing] aid, countenance, counsel, and encouragement to persons engaged in armed hostility to the United States.” (unclear precisely what Christy did)||U.S. Rep (GA)||Georgia Governor refused to commission him, and Congress refused to seat him.
||U.S. House of Reps.||No||No||1868||After Christy won the election, Georgia Governor determined he was disqualified under Section 3 and certified the losing candidate, John Wimpy, for the House seat. However, a House committee later found that Wimpy had served in the Confederate Army and was likewise disqualified. Neither was admitted.|
|Name||Took oath in what public position?||"Engaged" in insurrection how?||Public position when disqualified||Mechanism of disqualification||Deciding body||Court Review||Convicted of a crime?||Year||Notes|
- Kenneth H. Worthy: Worthy v. Barrett, 63 N.C. 199 (1869), appeal dismissed, 76 U.S. 611 (1869)
- William L. Tate: In re Tate, 63 N.C. 308, 309 (1869)
- J.D. Watkins: Louisiana ex rel. Sandlin v. Watkins, 21 La. Ann. 631 (La. 1869)
- Zebulon B. Vance: The Election Case of Joseph C. Abbott v. Zebulon B. Vance and Matt W. Ransom of North Carolina (1872)
- A.F. Gregory: A Case Under the 14th Amendment, Daily Dispatch
- Victor L. Berger: Cannon’s Precedents, Ch. 157, § 56
- Couy Griffin: New Mexico ex rel White v. Griffin, 2022 WL 4295619 (N.M. Dist. Sept. 6, 2022), appeal dismissed and reconsideration denied, No. S-1-SC-39571 (N.M. Feb. 16, 2023)
- John H. Christy: Hinds’ Precedents, Ch. 14, § 459 ; Col. John H. Christy Obituary, Calhoun Times (Mar. 3, 1877)
- Table does not include United States v. Powell, 27 F. Cas. 605, 607 (C.C.D. N.C 1871), because we have located only the jury charge and not the verdict. However, the court instructed the jury to find that the defendant “engaged in” the rebellion if they found he voluntarily “furnished a substitute for himself to [serve in] the Confederate army.”
- Table does not include unsuccessful or mooted Section 3 challenges, such as:
- U.S. Rep. John Rice, Hinds’ Precedents, Ch. 14 (overruling of majority report which had found Rice was disqualified under Section 3 due to membership of Kentucky House of Representatives during Confederacy, after he had taken oath as member of the Kentucky House of Representatives before secession).
- U.S. Rep. Alfred Waddell, Hinds’ Precedents, Ch. 14 (swearing in Waddell and referring his credentials to the Committee on Elections because Waddell’s position as an officer in Confederate army was not “judicial in character” and therefore Waddell was not disqualified, despite having taken oath as North Carolina Clerk and Master of Chancery).
- Quo Warranto Cases of 1870 (federal cases brought to remove half of the Tennessee Supreme Court were mooted by the Amnesty Act of 1872).
- Background Sources:
- Gerard N. Magliocca, Background as Foreground: Section 3 of the Fourteenth Amendment and January 6th
- Gerard N. Magliocca, Amnesty and Section 3 of the Fourteenth Amendment, 36 Constitutional Commentary 87
- Congressional Research Service, The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment
- Litigation of Criminal Prosecutions for Treason, Insurrection, and Seditious Conspiracy, 179 Am. Jur. Trials 435, § 17 (2023)
- Myles S. Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment
- McKinney, Gordon B. “Zebulon Vance and His Reconstruction of the Civil War in North Carolina.” The North Carolina Historical Review 75, no. 1 (1998): 69–85. via JSTOR