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The Fourteenth Amendment, as passed by Congress and ratified by the states says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, ...

The office of President is not explicitly called out here, which is one of the reasons that people say it should not be applied to Trump. This CRS analysis cites a quote from the debate over the amendment where a Senator states that the "or hold any office" clause is presumed to include the President, but other analyses (such as this one) counter that:

The words "President or Vice President" were deliberately edited out of the final version of Section 3 of the Fourteenth Amendment. This ... makes it clear that the Framers' of Section 3 did not intend for it to apply to presidents or vice presidents who engaged in insurrection.

However, I have yet to find anything pointing to a source for the early draft which (reportedly) explicitly included those two.

Thus my question: Where can I find the text of this early draft, and is there any recorded discussion of why it was edited?

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    @RogerV. The amendment specifically says "shall have engaged in insurrection or rebellion against the same", referring back to the US, so it wouldn't apply to the war of independence. That said, there's some interesting discussion from the drafting over whether it should say "the late insurrection" (i.e. only the Civil War) or just cover insurrection in general.
    – Bobson
    Jan 3 at 11:42
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    @RogerV. The point is that it's an insurrection against the United States, not against the President of the United States. The President is the chief executive, but by no means is he equivalent to the whole country - it's perfectly possible for the President to participate in an insurrection against Congress, or for the VP (or a Senator, or a judge) to participate in an insurrection against the President. ...
    – Bobson
    Jan 3 at 12:07
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    Didn't early drafts exclude anyone who took part from even voting? "Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice-President of the United States." scholarship.law.gwu.edu/cgi/…
    – Joe W
    Jan 3 at 12:47
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    @RogerV. The 14th Amendment was passed in 1868, and the Revolutionary War ended in 1783, 85 years earlier. Even assuming 15 year old soldiers, and considering the lack of modern medicine at the time, everyone who participated in the Revolutionary War was dead when the 14th Amendment was adopted. There were very few Whiskey Rebellion insurgents left either. There were many Native American insurgents from the Indian wars which ended in the late 1800s, but few of them had ever made an oath to support the constitution, and most were disenfranchised under the Indian's not taxed clause until 1924.
    – ohwilleke
    Jan 3 at 18:52
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    @RogerV.: If we apply the same no-offices-for-rebels logic to the American Revolution, then it'd seem like those who rebelled against the British Empire would be ineligible to hold office in the British Empire. Which, amusingly, those same rebels banned themselves from doing when they wrote the original US Constitution -- it's in the Foreign Emoluments Clause.
    – Nat
    Jan 4 at 2:23

2 Answers 2

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Question #1:

What sources imply that the office of President was deliberately excluded from the 14th amendment?

The words President and Vice President were in the first draft of Article 14 section 3, and removed in the draft which was eventually accepted. This is in the congressional record. Also the first version of the Article was published in the newspaper and the debate was closely followed by those contemporary papers daily. Here is a research paper which covers the newspaper coverage and floor debate over the authoring of the article 14 section 3 . The debates were widely followed by the public over the entire 14th amendment and it's various revisions. There is no doubt or question that the first draft of article 14 section 3 (provided below) specifically mentions the office of the President and Vice President. As we know the final ratified version of article 14 section 3 does not specifically mention these specific offices but rather refers to any office, civil or military, under the United States.

So the debate becomes is the Presidency an office under the United States. The Constitution answers this question by referring to the Office of the Presidency 25 times. (according to the Colorado Supreme Court).

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Amendment XII

But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Amendment XXII, Section 1

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

etc.

Question #2:

Where can I find the text of this early draft

On February 19, 1866, Kentucky Republican Rep. Samuel McKee proposed language for article 14, section 3 which mentions the office of President and Vice President

first draft proposed of Article 14 section 3:

No person shall be qualified or shall hold the office of President or vice president of the United States, Senator or Representative in the national congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate, who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the United States.

Question #3

is there any recorded discussion of why it was edited?

Below is the Colorado Supreme Court's finding explanation and reasoning for interpreting the change in the first and final draft excluding the office of President and Vice President.

Colorado Supreme Court Finding page 77:

It is hard to glean from the limited available evidence what the changes across proposals meant. But we find persuasive amici’s suggestion that Representative McKee, who drafted these proposals, most likely took for granted that his second proposal included the President. While nothing in Representative McKee’s speeches mentions why his express reference to the Presidency was removed, his public pronouncements leave no doubt that his subsequent draft proposal still sought to ensure that rebels had absolutely no access to political power. Representative McKee explained that, under the proposed amendment, “the loyal alone shall rule the country” and that traitors would be “cut[] off . . . from all political power in the nation.”

Cong. Globe, 39th Cong., 1st Sess. 2505 (1866); see also Mark Graber, Section Three of the Fourteenth Amendment: Our Questions, Their Answers, 22–23 (Univ. of Md. Legal Stud. Rsch. Paper No. 2023-16), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591133 (“Our Questions, Their Answers”); Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War 106, 114 (2023)

(indicating that Representative McKee desired to exclude all oath-breaking insurrectionists from all federal offices, including the Presidency). When considered in light of these pronouncements, the shift from specifically naming the President and Vice President in addition to officers appointed and confirmed to the broadly inclusive “any officer, civil or military” cannot be read to mean that the two highest offices in the government are excluded from the mandate of Section Three.

More language from Samuel McKee author of Article 14 section 3:

  • "I desire that the loyal alone shall rule the country which they alone have saved."

Related Question:

How did the Colorado Supreme Court justify extending Section 3 of 14th amendment to the presidency? How did the minority opinion argue against this?

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With respect to JMS's excellent answer, it doesn't specifically tell you where you can read the text of the previous draft of the amendment.

You can find the text on page 919 of The Congressional Globe of the first session of the 39th Congress: Screenshot from The Congressional Globe

Professor Mark Graber of the University of Maryland notes that there was some congressional debate about why those words were removed.

In the Congressional Globe, there is an exchange between Senator Reverdy Johnson of Maryland and Senator Lot Morrill of Maine.

On page 2899 of the same session: Screenshot of page 2899

I'm no scholar in this area, but it seems to me from this exchange that Senator Morrill at least felt that the wording included the President.

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    @IanCambell, Nice additions to the thread +1.
    – JMS
    Jan 4 at 17:32
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    Looks like they just made the original less wordy. The original separately lists the office of the President AND the office of the Vice-President AND the offices beneath them. The final version drops this distinction by just referring to all offices.
    – Nat
    Jan 4 at 17:34
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    I find it interesting that this original draft explicitly calls out "offices held under appointment from the President" in addition to explicitly listing the Pres and VP. I can see a good argument that removing the explicit P/VP was intentional because the definition of "office" was broadened such that they were included in it (or vice versa), which kind of invalidates the "they were deliberately excluded after this early draft" argument.
    – Bobson
    Jan 4 at 18:03
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    It also looks like this was removed when they added electors and the clause about "previously taken an oath". So it seems like it was just getting really wordy enumerating all the offices, and just saying "any office" was sufficient.
    – Barmar
    Jan 4 at 21:40
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    The earlier draft included only appointed offices requiring Senate confirmation, which is a much smaller category than all appointed officers. Jan 6 at 16:00

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