Punishing Treason in 1866 and Today

by Mark A. Graber

The petitioners who called on the Thirty-Ninth Congress to “punish treason with at least ineligibility to office and loss of power” would have been horribly disappointed with the Supreme Court of the United States’s decision in Trump v. Anderson (2024). Reconstruction Republicans in 1866 framed and ratified a constitutional provision that disqualified any past or present officeholder who participated in an insurrection against the United States from holding any federal or state office. The Supreme Court did not dispute the finding made by Colorado courts that Donald Trump was an “oathbreaking insurrectionist.” Nevertheless, the justices decided that this “oathbreaking insurrectionist” should not be “punished” with “at least ineligibility to office and loss of power.” Instead, in an opinion that treated Section Three of the Fourteenth Amendment as a historical accident or embarrassment, the Supreme Court unanimously ruled that states could not disqualify candidates for federal office. Five justices took the occasion to state that federal judges could not disqualify candidates for federal office and that Congress could exercise Section Three powers only under the narrow conditions prescribed by the Court.

Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War corrects this common impression underlying Trump v. Anderson that Section Three was tangential to the Fourteenth Amendment and to Reconstruction more generally. The manuscript’s detailed analysis of the debates during the Thirty-Ninth Congress documents how the Fourteenth Amendment was intended to “punish treason” and “reward loyalty.” The Thirteenth Amendment legally abolished slavery and gave Congress the power to destroy the slave system. Exercising Thirteenth Amendment powers when passing the Civil Rights Act of 1866 and the Second Freedmen’s Bureau Bill, Congress sought to eliminate the policies and practices that provided foundations for enslaving African Americans. The Fourteenth Amendment abolished the slave power—the slaveholders who controlled the slave states and national government before the Civil War. If the southern elite, with the assistance of northern Democrats, could regain control of the national governments and the governments of former confederate states, Republicans knew African Americans would be re-enslaved, southern Republicans would be terrorized, and the financial system would collapse when that coalition paid off the rebel debt while refusing to honor the Union obligations.

Punish Treason, Reward Loyalty is the first work to detail the Republican emphasis on altering the structure of constitutional politics in the United States, as opposed to the obsession with the rights provisions of the Fourteenth Amendment in other scholarly works. Republicans knew that the Thirteenth Amendment’s ban on slavery and the rights enumerated in Section One of the Fourteenth Amendment would become mere parchment barriers if antebellum constitutional politics was not adjusted in ways that guaranteed rule by the proponents of free labor and racial equality who had remained loyal to the Union during the Civil War. Congress had the constitutional powers necessary to destroy slavery and the slave system. If, however, Democrats controlled the national government, those powers would remain fallow.

Section Three of the Fourteenth Amendment was crucial to fashioning a government committed to free labor and racial equality. Persons who resort to bullets after losing the ballots, Republicans agreed, should not hold offices in a democratic republic. Representative Daniel Morris of New York spoke for his political allies when declaring, “No leader in this rebellion, no man who has been educated at the expense of the government or who has ever held an office under it and then sought its overthrow, can ever hold to fill any position of trust.”

Section Three was the most discussed provision of the omnibus Fourteenth Amendment presented to Congress by the Joint Committee on Reconstruction. During the debate, Senator James W. Grimes of Iowa maintained that the ban on officeholding “is intended as a prevention against the future commission of offences, the presumption being fair and legitimate that the man who has once violated his oath will be more liable to violate his fealty to the Government in the future.”[1] Barring insurrectionists from political office made future insurrections less likely. “Looking to the future peace and security of the country,” Senator Waitman T. Willey of West Virginia “ask[ed] whether it would be just or right to allow men who have thus proven themselves faithless to again be entrusted with the political power of the State.”[2]

The Supreme Court in Trump v. Anderson ignored this history. Justices, particularly justices committed to originalism, typically begin the substantive section of their decision by bestowing high praises on the constitutional provisions in question, the purposes of those provisions, and the persons responsible for those provisions. The per curiam opinion in Anderson seemed ashamed of Section Three. The justices could not think of a single kind word to say about constitutional disqualification, the point of constitutional disqualification, or the persons responsible for constitutional disqualification. The best excuse for these omissions is that for nearly 160 years, no other justice or constitutional commentator said much about Section Three. Until the insurrection of January 6, 2021, most constitutional law professors did not know the contents of Section Three.

Punish Treason, Reward Loyalty ends the silence on the goals of constitutional reform after the Civil War. Proponents of free labor and racial equality demonstrated far more concern with disloyal rebels than with abstract statements of fundamental rights. Republicans spoke of rewarding African Americans and others who were loyal during the Civil War rather than extending rights to all human beings no matter what their activities in the previous years. The history told in Punish Treason cannot determine whether Americans in 2024 should disqualify Donald Trump and other oathbreaking insurrectionists from office, but that history should inform judges, legislatures, and citizens as to why disqualification of those who have recourse to bullets after losing ballots was thought vital in 1866 and might be considered vital today.

[1] Congressional Globe, 39th Cong., 1st Sess., p. 2916 (Grimes). See Congressional Globe, 39th Cong., 1st Sess., p. 2918 (Willey).

[2] Congressional Globe, 39th Cong., 1st Sess., p. 2919. See Congressional Globe, 39th Cong., 1st Sess., p. 3038 (“I am for the exclusion of traitors and rebels from exercising control and power and authority in this Government”).