‘Insurrection’ clause’s Civil War-era history scrutinized in third day of Trump trial

By: - November 1, 2023 6:01 pm
A man in a gray suit and blue tie sitting behind a microphone

Gerard Magliocca, professor at Indiana University’s Robert H. McKinney school of law, testifies during a hearing for a lawsuit to keep former President Donald Trump off the state ballot in court Wednesday, Nov. 1, 2023, in Denver. (AP Photo/Jack Dempsey, Pool)

This story originally appeared on Colorado Newsline.

When Gerard Magliocca, an Indiana University law professor, submitted a draft law review article on Section 3 of the 14th Amendment for publication in December 2020, few in the world of constitutional law could have anticipated just how relevant it would become a short time later.

At the time, Magliocca said in testimony in Denver District Court on Wednesday, there was virtually no modern scholarship on the interpretation and application of Section 3, a post-Civil War provision that bars anyone who took an oath to support the U.S. Constitution and then “engaged in insurrection” from holding office. For nearly a century and a half, the text had widely been considered a “vestigial” clause in the Constitution.

“It’s changed quite a bit, especially in the last few months,” he said.


Eight days after Magliocca’s draft article was posted online, supporters of then-President Donald Trump stormed the U.S. Capitol and interrupted congressional proceedings to certify the results of the 2020 election. Trump has been indicted by federal prosecutors for his role in spreading “pervasive and destabilizing lies” that had “targeted a bedrock function of the United States federal government.” Shortly before leaving office, he was impeached, though not ultimately convicted, by Congress for “incitement of insurrection.”

Six Colorado voters, with support from the nonprofit Citizens for Responsibility and Ethics in Washington, have sued Trump and Colorado Secretary of State Jena Griswold in state court, arguing that Trump engaged in insurrection and that the 14th Amendment requires Griswold, the state’s top elections official, to deny Trump a place on Colorado’s 2024 presidential ballot.

Magliocca is one of several constitutional law experts whose views on Section 3 were cited by the plaintiffs in their lawsuit, and he was called to testify in as an expert witness as a trial in the case entered its third day on Wednesday.

Previous testimony in the trial had concerned the questions of whether the Jan. 6 attack was an “insurrection,” and whether Trump “engaged in” that insurrection. In his testimony, Magliocca did not weigh in directly on whether he believed Trump is ineligible under Section 3. But with prompting from plaintiffs’ attorneys, he said that a number of different arguments marshaled by Trump’s lawyers against the enforcement the insurrection clause aren’t consistent with the historical record.

“The violent mob that carried the Confederate flag into the Capitol, an invasion that Robert E. Lee never achieved, should be forced to confront the only constitutional provision that was specifically directed against those who helped carry that flag into battle,” Magliocca wrote in a January 2021 article for legal news outlet Lawfare. “Along with anyone who engaged in that insurrection with them.”

Reconstruction-era history

Following the 14th Amendment’s ratification in 1868, Section 3 was aggressively enforced by federal and state authorities for a period of several years, when, Magliocca wrote in his 2020 review, “the reforming zeal of Reconstruction was at its peak.” Federal prosecutors, military occupation officials, state courts and Congress itself used the measure to remove or bar from office large numbers of ex-Confederate legislators, judges and executive-branch officials.

“It was not intended as punishment,” Magliocca said in testimony Wednesday. “This was simply adding another qualification because of the events that had occurred.”

By 1871, however, amid rising public support for reconciliation between North and South, Congress began to enact a series of amnesty measures for ex-Confederates, fulfilling Section 3’s requirement of a two-thirds vote to “remove (the) disability” of disqualification. Those amnesties largely rendered the section moot for the next 140 years, Magliocca wrote in his article.

One argument made by Trump’s legal team concerns the 1872 presidential campaign of Democrat Horace Greeley, who was accused of disloyalty to the Union but never faced any suggestion that he would be disqualified from office under Section 3. Magliocca said the example of Greeley’s candidacy is irrelevant, since he was a former Republican from New York who had been a loyal ally of the Lincoln administration during the war. Even if Greeley had been an ex-Confederate, Magliocca said, he would have been covered by a general amnesty enacted by Congress earlier in 1872.

Magliocca also dismissed claims by Trump’s team that U.S. presidents can’t be rendered ineligible by Section 3, citing contemporary debates in which proponents argued for the necessity of the amendment by raising the specter of ex-Confederate president Jefferson Davis winning election to the U.S. presidency.

On cross-examination by Trump’s legal team, Magliocca acknowledged that some scholars have recently endorsed the argument that the insurrection clause doesn’t apply to the president.

“Of the draft papers that have considered the question (of whether Section 3 applies to the presidency) — there aren’t that many — their position so far is in the minority,” he said.

One pair of experts cited by Trump’s attorneys, Josh Blackman and Seth Tillman, argued in a 2021 paper that Section 3’s reference to “officers of the United States” does not include the president.

Magliocca rejected that argument, pointing to contemporary statements from Reconstruction-era politicians — including Ohio Sen. John Bingham, the architect of the 14th Amendment’s better-known Equal Protection Clause — referring to the president as the “executive officer of the United States” or an “official of the United States.”

Magliocca also pointed to an 1867 opinion written by Attorney General Henry Stanbery on the Reconstruction Acts, congressional legislation that instructed Union military officials overseeing governmental and judicial functions in occupied southern states. The language used in certain portions of the Reconstruction Acts was identical, Magliocca said, to the text of the 14th Amendment, which at the time had been approved by Congress and awaited ratification by the states.

Stanbery’s brief held that “engaging in rebellion” meant “‘overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose’ — namely, the insurrection,” Magliocca said. He added that other opinions from the time period used similar definitions, and noted that a portion of Stanbery’s opinion directly addressed the question of whether acts of insurrectionist speech would meet the standard for disqualification.

“Disloyal sentiments, opinions, or sympathies would not disqualify,” Stanbery wrote. “But when a person has, by speech or by writing, incited others to engage in rebellion, be must come under the disqualification.”

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Chase Woodruff
Chase Woodruff

Chase Woodruff is a senior reporter for Colorado Newsline. His beats include the environment, money in politics, and the economy.