Section Three of the Fourteenth Amendment

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Joe says:

    Interesting case. Wikipedia’s entry quotes committee:

    “In regard to the first question, your committee concurs with the opinion of the special committee appointed under House resolution No. 6, that Victor L. Berger, the contestee, because of his disloyalty, is not entitled to the seat to which he was elected, but that in accordance with the unbroken precedents of the House, he should be excluded from membership; and further, that having previously taken an oath as a Member of Congress to support the Constitution of the United States, and having subsequently given aid and comfort to the enemies of the United States during the World War, he is absolutely ineligible to membership in the House of Representatives under section 3 of the fourteenth amendment to the Constitution of the United States.”

  2. Josh Chafetz says:

    If you’re interested, I have a discussion of the Berger case at pp. 189-91 of my book.

  3. Gerard Magliocca says:

    I had forgotten about that! A photographic memory I have not.

  4. Joe says:

    In the book edited by Todd Peppers and Artemus Ward (darn blogs making me read things), I did learn Cardozo sort of did have photographic memory, if such a thing exists.

  5. In his concurring opinion in Powell v. McCormack (1969), Justice Douglas’s list of unconstitutional acts by the House included “A man is not seated because he is a Socialist or a Communist,” footnote (n.5) to “Case of Victor Berger, 6 C. Cannon, Precedents of the House of Representatives of the United States § 56 (1935).”

  6. Joe says:

    The majority provides a more complete account:

    “it twice excluded Victor L. Berger, an avowed Socialist, for giving aid and comfort to the enemy. Significantly, the House committee investigating Berger concluded that he was ineligible under the express provision of § 3 of the Fourteenth Amendment. 6 C. Cannon, Precedents of the House of Representatives of the United States §§ 56-59 (1935) (hereinafter cited as Cannon). Berger, the last person to be excluded from the House prior to Powell, was later reelected and finally admitted after his criminal conviction was reversed. 65 Cong.Rec. 7 (1923).”

    Douglas misleadingly suggests he wasn’t seated “because” of his political beliefs.

  7. Mls says:

    And not holding an incompatible office.