Section Three of the Fourteenth Amendment

I came across an interesting bit of trivia yesterday that I wanted to share.  Section Three of the Fourteenth Amendment states:

“No person shall be a Senator or Representative in Congress . . . who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or an as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” [By a two-thirds vote, Congress may remove the disability.]

Now this provision was obviously directed against ex-Confederate officials.  In 1919, though, the House of Representatives invoked Section Three to exclude Victor L. Berger, who was elected from Wisconsin as a Socialist.  Berger was excluded because he opposed our involvement in World War I, was German, and was convicted under the Espionage Act (though that conviction was reversed by the Supreme Court).  After his exclusion, Berger’s constituents elected him again, and the House excluded him again. He was elected for a third time in 1922 and was finally seated.

It’s worth noting that this means there are really four qualifications for election to Congress.  There’s age, citizenship. residency, and “not being disloyal.”

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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.