Leading originalist Professor Michael McConnell has written a thoughtful dissection of the Supreme Court’s pivotal decision last term in Trump v. Anderson, which denied the states their ability to enforce Section Three of the Fourteenth Amendment for federal, if not state, office-holding disqualifications. And he is right on a number of things, including his critiques of the justices’ federalism reasoning and his affirmation that the Fourteenth Amendment’s Section Five Enforcement Clause was clearly not intended to be the only means for enforcing Section Three, despite the “strong[]” suggestion of the Court that it was. Most of all, it is undeniably true that the actual “reason for [the Court’s] unanimous outcome was almost certainly pragmatic rather than textual or historical.”
But the legal arguments that the Justices express still matter. And McConnell is wrong in his overall conclusion, that while “[t]he holding may not truly rest on text and history… it is consistent with text and history—more consistent with text and history than the opposite conclusion would have been.” Not only is the argument in favor of overturning the foundational presumption in favor of state enforceability remarkably weak on its face, as we shall turn to first. But the best available historical evidence clearly cuts against that argument and supports an original understanding of state enforceability, as we will see in the second half of this Comment.
Nationalizing “to its toes”? A Facially Weak Argument
Even taken purely on its own terms, the best originalist argument that McConnell can offer on behalf of the Court—that the “nationalist spirit of the Fourteenth Amendment” prevents states from enforcing Section Three disqualifications from federal office—is shaky at best.
First, the Constitutional deck is stacked against claims that the states lack power to regulate federal elections. To his credit, McConnell plainly recognizes this: Any argument that the states cannot enforce the eligibility restrictions of Section Three has to contend with the fact that the Constitution entrusts primary authority over federal elections to the states. Under “Article II, Section One,” presidential electors are to be appointed “in such Manner as the Legislature thereof may direct,” a degree of regulatory authority that “[o]n its face,” McConnell admits, would plainly “seem to empower the state legislature to decide how to enforce the qualifications and disqualifications for being President, namely age, natural-born citizenship, two-term limit, and non-participation in an insurrection.” Indeed, the Court recognized the state’s positive “duty to prescribe rules governing federal elections” barely a year prior in Moore v. Harper, and even to “control how electors cast their votes” in Chiafalo v. Washington three years before that.
For an originalist like McConnell it is thus rather beside the point that different states would likely interpret Section Three in different ways, with the likely “result… that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).” McConnell affirms that as “sensible” as it might seem to the Justices to prevent Colorado and other states from thereby “creat[ing] a chaotic state-by-state patchwork,” that patchwork is not in fact “at odds with our Nation’s federalism principles.” It is perfectly in keeping with the original design. “Ballot access requirements vary from state to state” all the time, McConnell points out, with the “result that a single candidate is [often] declared ineligible in some States but not others.” In 2024, that happened not only in numerous instances with Robert F. Kennedy, Jill Stein, and Cornel West, but also nearly with Kamala Harris when she was almost denied access to the ballot in Ohio. And it is worth adding that the background principle of each state running federal elections as it pleased would have been even more readily apparent back in 1866 when the Amendment was being framed. After all, that was long before the federal government had implemented most of its major interventions into how states regulated federal elections, from the Reconstruction Acts of 1867-68, to the Fifteenth and Nineteenth Amendments, to the Warren Court’s mandating of one-person, one-vote, and the Voting Rights Act of 1965. Text, structure, practice, and recent doctrine all point the same way—toward state enforcement of Section Three disqualifications, including for federal electoral offices.
Second, the claim that is supposed to carry the Court over this hump—what McConnell calls the “nationalist spirit of the Fourteenth Amendment”—is itself dubious at best. What the Court and McConnell ascribe to the Fourteenth Amendment, in effect, is a single overriding and cohesive purpose, to “expand[] federal power at the expense of state autonomy.” On their reading, the Amendment was intended to so restructure the federal-state relationship such that “[g]ranting the States [the] authority… to enforce Section 3 against federal officeholders and candidates… would invert the Fourteenth Amendment’s rebalancing of federal and state power.” Thus, however plain the meaning of Section Three appears to be on its own—and even more so alongside Article II, Section One—it must be fitted back into this controlling concept of the Amendment’s overriding “nationalist spirit.”
Yet why should this be so? Textually, the Fourteenth Amendment is an “omnibus” provision, comprising of five separate sections with very different purposes and effects with regards to federalism. This makes it already questionable as to whether all five should be understood as being effectively controlled by the same “nationalizing” purpose.
For their part, Section Two and Section Four seem to reflect little such structural function. The former is about shifting representative power between the states based on whether or not they disfranchised male adults on account of anything but their prior “participation in rebellion, or other crime,” not about shifting power from the states to the federal government. The idea was clearly to move political power to the North—and to the Republican Party—from the rebellious constituencies of the South, while also encouraging Black suffrage (itself supportive of the Republican Party in the South).1 The debt restrictions of Section Four meanwhile appear to constrain the federal government as much as, if not more than, the states—neither “shall assume… any debt or obligation incurred in aid of insurrection… or any claim for the loss or emancipation of any slave,” but only the federal government is seemingly restricted by the Section’s insistence that the “validity of the public debt of the United States… shall not be questioned.”
And Section Three itself only declares that “[n]o person shall be… or hold” any state or federal office who committed insurrection after previously holding such office. Congress is only specially empowered insofar as it can lift any such disqualification, not in itself enforcing what appears to be just as capacious a mandate against the very existence of such rebel officeholding as the Thirteenth Amendment is with slavery (a mandate very much to be enforced by the states as well as the federal government).
Sure, Section One insists on national citizenship and certain civil-rights-protecting limits on State lawmaking and enforcement, and Section Five makes clear that Congress would itself have “power… appropriate” to “enforce” the rest of the Amendment. But as Mark Graber points out, “[t]he privileges and immunities, due process, and equal protection clauses of Section One are the only clauses in the Fourteenth Amendment that restrict state power exclusively.” Plus, it was hardly apparent when the Amendment was passed and ratified that the uncontroversial and little-noted Section One would become the federal behemoth that the Courts have since made it, dwarfing the then-far more important Sections Two, Three, and Four.2 In fact, it has only been through its subsequent elision of Section One with the entirety of the Amendment—starting in the 1880 case of Ex Parte Virginia—that the Court has gradually slipped into this idea that the central overriding point of the Amendment must be about shifting lawmaking power from the states to the federal government, as opposed to, say, shifting political power throughout the nation from the disloyal to the loyal.3
We know the Amendment’s framers were “constitutional conservati[ves],” profoundly committed to the existing federalist “spirit of our institutions” rather than “a vast increase in the powers of the national government.” They believed that their Amendment “t[ook] from no State any right.”4 We know that they were reacting to—and specifically politically empowered by—a situation in which the Southern states had themselves chosen to send rebels to Congress as their elected federal representatives.5 And McConnell himself agrees that Section Five is plainly not the exclusive vehicle for Section Three enforcement. Why then should Section Three’s framers not have sought to have the states join in enforcing the disqualification of rebels from federal as well as state office, as the text itself seems to mandate?
The History from the “period of framing and ratification” Points the Other Way
That moves us from the ways in which McConnell’s defense of the Court is facially weak to how it is specifically wrong on the best available history.Yes, as McConnell notes, our evidence on this very specific question of state enforcement of federal officeholding disqualifications is quite limited from the eight days of actual debate on the text, beginning with Senator John Howard’s introduction of the final version of Section Three on May 29, 1866, and extending through to the Amendment’s final affirmation by the House on June 13th.
That is less true, however, of the original version of Section Three first put forward by the Joint Committee on Reconstruction, which passed the House on May 11th following a four-day debate. Under this first proposal, “all persons who voluntarily adhered to the late insurrection, giving it aid and comfort [were to] be excluded from” all federal voting until July 4, 1870. And it is difficult to see how such a disfranchisement of rebels from all federal voting could have possibly taken place without state enforcement. Indeed, this initial version was modeled after the rebel disfranchisement measures already adopted and enforced by numerous states, including the secessionary “States of Tennessee and Arkansas.” In fact, Congressional Republicans were specifically confident that these loyalist governments would “accept th[e Section’s] proposition of disfranchisement without hesitation” as “[t]hey have already adopted the principle in the organization of their own State governments.” As the powerful Congressman and former House Speaker, Nathaniel Banks, declared, the expectation was that the “third proposition” of the Amendment would “commence its operations in the States in the valleys of the Ohio and the Mississippi,” states where “it can be immediately applied, and where it will be immediately successful” thanks to the loyal “majority” population. From that point, Banks and other Republicans expected the other secessionary states would gradually trickle in, some in “1866,” and “others perhaps in 1867, and so on” each following the path of these loyal states by “modif[ying their] constitution[s] and laws in conformity” with the Amendment and thus enforcing the disfranchisement themselves, even prior to the Amendment’s ratification by three-fourths of the States. All the while, implementation would follow “application of the ordinary methods of carrying on a Government both of the Union and of the States,” with Congress stepping in where necessary with “registry laws” where the states failed to adequately exercise their own powers over the “times, places, and manner of holding elections” for federal offices.
And it is this expectation that continued to frame the terms of Section Three even as it was rewritten from a federal disfranchisement into its final form as a disqualification from state and federal office. Republicans shifted away from the disfranchisement version for a variety of practical policy reasons, including that they worried that Southerners would simply seek to wait out the July 4, 1870 timeline rather than ratifying and implementing the Amendment. Notably, more conservative Republicans like John Bingham were also skeptical that a ban from federal voting would itself actually affect the “appointment of electors for President and Vice President of the United States,” that being squarely “the act of a State and not of individuals” under the “express text” of Article II, Section One.
But as the original readmission bill offered by the Joint Committee on Reconstruction alongside the Amendment made clear, the expectation in 1866 was always that the Southern states would not only “ratify” the Amendment, making way for federal enforcement after the completion of the ratification process. Instead, the ratifying states would themselves also “modify” their own “constitution[s] and laws in conformity” with the Amendment’s substantive sections, thereby themselves securing enforcement for those sections prior to, as well as after, federal ratification.
Indeed, this makes a great deal of practical political sense. If Congress did not insist on such substantive Southern-state implementation prior to final ratification, then one or two secessionary states could simply ratify, receive readmission, and then join the Democrat minority in hamstringing any further Congressional action on Reconstruction and progress toward full ratification. All they needed was one third of Congress, together with Andrew Johnson’s veto.
This continuing Republican expectation of state implementation and enforcement cashed out in the immediate post-enactment debate over readmitting Tennessee, the one secessionary state to actually follow Congress’s expectations of such “voluntary state action” on ratification and implementation of the Amendment. The main reason why John Bingham was able to overcome opposition in the House to Tennessee’s readmission (posed by pro-Black suffrage Radicals), was that the state had not only “ratif[ied] the constitutional amendment” but already substantively implemented it, “conform[ing]… their laws thereto.” The state, Bingham emphasized, had “conformed to all our requirements.” Not only by “ratify[ing] the amendment in good faith,” but by “her own voluntary will conform[ing] her constitution and laws” to the Amendments passed by Congress. For Bingham, Tennessee was specifically “entitled to be represented here” because she had already fulfilled the clear duties placed on states by the Amendments—having “by her fundamental law forever prohibited the assumption or payment of the rebel debt, or the enslavement of men… [and] by her own constitution declared that rebels shall not exercise any of the political power of the State.”
And nowhere was Tennessee’s implementation of Congress’s Fourteenth Amendment more concrete than with the rebel disqualifications that mattered “more than all the rest” to many in the party. Having already passed provisions in 1865 barring rebels from voting, Tennessee had closely tracked Congress’s turn toward office-holding disqualifications, enacting a further specific bar against rebels becoming “candidates for any official position.” (Language that itself discounts McConnell’s supposition that disqualifications were only applied to officeholders as opposed to candidates.)
As Bingham and other Republicans made clear, these were exactly the kind of Amendment “conform[ing]” adjustments to state “constitutions and laws” that they expected out of the ratifying states and that would “give[] the American people assurance of [their] determination to stand by this great measure of security for the future of the Republic.” State action would form “the ark of safety” that would make it “impossible that [rebels] can be represented upon this floor.” Moreover, Tennessee’s enactment appears to have applied to state elections for federal as well as state offices, as the state clearly regulated “all elections in the State” in common, whether they were for “electors for President and Vice President of the United States, Governor, members of Congress, members of the State Legislature,” or other state offices. Congressional Republicans appear to have understood Tennessee’s laws in this way. As Benjamin Wade observed:
[N]othing [the State] has done commends herto our approbation more clearly than the fact that she has done precisely by her legislation what we are endeavoring to do by one article in our constitutional amendment—provided that no person shall hold any office under this Government who has participated in any way in the rebellion.
This is to say that the real point of Section Three was not that it was “granting the States the power—silently no less—to disqualify a candidate for federal office.” Instead, Section Three required the States to use their pre-existing Article I and II powers over federal elections to fulfill its added disqualificatory requirements—the kind of power that Section Five had to positively grant to Congress to allow it to make its own Section Three-premised interventions into state political systems, like the Enforcement Act of 1870. McConnell and the Court have flipped the original Constitutional script on its head, reading state enforcement of Section Three as claiming a further “[g]ranting” of “authority” where there was only ever a mandate for the states to apply power they already had to serving the Section’s purposes. Indeed, Section Two itself suggests as much. The provision clearly accommodates the states’ existing exercise of their regulatory authority to restrict federal voting by rebels, if not specifically their running for federal office.
All of this fits into a constitutional framework where the aim was never to take away the capacity of a state like Tennessee to participate in the core program of shifting political authority from the disloyal to the loyal, as the Court and McConnell would have it.6 It was to work with such loyalist state governments and recruit the rest of the South into participating in the same program. The primary intended role of Congress in all of this was to do exactly what Section Three suggests for it, amnestying those former rebels who had proved their renewed loyalties, especially by joining in the process of Southern Reconstruction. And so, Congress would act far more often as the lifter of what was plainly a “self-executing” Section Three disqualification than its enforcer. At the behest of Southern loyalists, the 40th and 41st Congresses would each spend a great deal of time considering and passing numerous “special acts” relieving rebel “political disabilities,” often for the specific purpose of allowing a converted or reluctant rebel to take federal office. Varying in size from amnesties for single persons to amnesties for hundreds at a time, the number amnestied would come to total some 4,616 ex-Confederates in the years prior to the general Amnesty Act of 1872.7
Of course, the original Congressional expectation of “voluntary” Southern implementation of Section Three did not itself pan out. The other Southern state legislatures refused to ratify the Amendment. This forced Congress to itself enact the kind of reconstruction reforms for these states that Tennessee had already passed for itself, implementing Section Three’s terms via the Reconstruction Acts of 1867–68—statutes which themselves secured the Amendment’s ratification. (Notably, the Enforcement Act of 1870 would be passed in the wake of Tennessee ending enforcement of these disqualifications, with its Section Three quo warranto enforcement provisions likely only ever applied to Tennessee officeholders).
Yet even then, Congress still evidently expected the states to participate in enforcing Section Three. Congress’s state readmission acts required that “no person prohibited from holding office… by section three of the proposed amendment… shall be deemed eligible to any office in… said States.” McConnell acknowledges the point but thinks it only applied to state office. Yet as we have seen with regard to Tennessee, it is not so obvious that such language actually referred only to state office, as opposed to federal offices elected within the state as well.
Likewise, Southern loyalists appear to have believed that they had the responsibility to disqualify rebels from obtaining federal as well as state office in their states. In total, nine of the eleven ex-secessionist state conventions—not the mere four that McConnell counts—passed constitutional disqualifications at least equaling the Section Three’s office-holding standard, each with language that certain rebels could not “hold office” under that state’s Constitution.8 In Texas, the Committee on State Affairs considered a resolution directly working the Section Three text into the state oath of office, implying a duty to uphold the standard. Even more suggestively, in Arkansas, the Republican majority of the “Committee on Elective Franchise” determined that no “rebel” should “be eligible to fill the office of either Governor or Lieutenant Governor, nor become a Member of Congress,” in a report that served as the direct basis of the Constitution’s restrictions on rebels “vot[ing], or hold[ing] office.”
Across all these cases, we find evidence rooted squarely in the “period of framing and ratification between 1866 and 1868” that McConnell and other originalists typically prioritize for “purposes of interpreting the Fourteenth Amendment.” Certainly, it stands closer than what McConnell now calls the “best evidence of how the Framers… thought Section Three should be enforced.” That is the Enforcement Act of 1870— legislation passed in a profoundly different,9 post-ratification, post-readmission moment from the 1866 framing and whose mere provision of a federal means of enforcing Section Three says nothing about whether the states might also enforce Section Three. With this evidence in mind, McConnell’s first instincts—that “[o]n its face,” Article II, Section One does “seem to empower the state legislature to decide how to enforce the qualifications and disqualifications for being President”—appear to be exactly right.