Written by William C. Duncan
January 10, 2024
Some provisions of the U.S. Constitution fly under the radar until a set of events thrusts them to the forefront of policy or political considerations. One such provision is Section 3 of the 14th Amendment to the Constitution.
Until recently, Section 3 was of interest only as a historical matter, but that has changed with its emergence as a key issue in the 2024 presidential election. Officials in two states – the majority of the Colorado Supreme Court and Maine’s Secretary of State – have cited this provision in determining Donald Trump should be removed from state ballots, while the Michigan Supreme Court has declined to do so. Though it seems odd to some, the question had to arise in the states because states (rather than the federal government) oversee elections.
Last week, the U.S. Supreme Court agreed to weigh in on the Colorado case, with oral arguments scheduled for Feb. 8. As we approach that date, it is valuable to consider both the history and the legal issues behind Section 3 of the 14th Amendment.
The history of Section 3
Jefferson Davis served as a member of Congress, secretary of war to President Franklin Pierce, and a U.S. senator representing Mississippi. He resigned at the outset of the Civil War and became president of the Confederate States of America.
Davis was not the only Confederate official to have previously served in the government of the United States. It is not surprising that with the formation of the Confederacy, politicians who had represented Southern states in the national government would take similar roles in the new government.
When the Civil War ended, however, the question of what role Confederate officials might play in the postwar U.S. government was among the questions considered by the congressional committee charged with Reconstruction. The committee included this topic in the proposed 14th Amendment to the Constitution. That amendment, ratified in 1868, provided critical protections from state government abuses and prohibited race-based legal disabilities in Section 1. It addressed political representation in Section 2 and war debt in Section 4. In Section 3, it created important new qualifications for federal and state offices. The entire text of Section 3 reads:
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, 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 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. But Congress may by a vote of two-thirds of each House, remove such disability.
From the beginning, the Constitution included age and citizenship qualifications for some offices. Section 3 is obviously quite different in the nature of the qualifications, but the principle is the same.
So, if a person was planning to run for president,* he or she might consult a checklist:
- Am I “a natural born Citizen” of the United States?
- Have I been a U.S. resident for at least 14 years?
- Am I at least 35 years old?
- Have I taken an oath to support the Constitution, then engaged in insurrection or rebellion or given aid and comfort to the enemies of the United States? If so, has 2/3 of Congress voted to allow me to hold office notwithstanding my insurrection or rebellion?
The additional qualifications in section 3 clearly reflect the postwar context. It would make little sense to have officials who had fought against the United States after promising to uphold the Constitution return to positions of authority.
The legal issues around Section 3
When the Supreme Court addresses Section 3 of the 14th Amendment, the court will have to address a number of thorny issues:
- Is Section 3 only applicable to the specific context of Reconstruction after the Civil War?
- When Congress removed the disqualification of former Confederate officials in the decades after the Civil War, was Section 3 no longer relevant?
- Must Congress act to create a procedure for disqualifying an official before Section 3 can be applied (as an 1869 court decision has suggested)?
- Is Section 3 inconsistent with other constitutional guarantees (like freedom of speech)? If so, does that mean it cannot be applied?
- Who has the authority to determine if a prospective candidate is ineligible under Section 3?
- What constitutes “insurrection,” “rebellion,” and giving “aid or comfort”?
- Do Donald Trump’s actions on Jan. 6, 2021, constitute any of these?
- Must a prospective candidate be convicted in court or some other process before the disqualification can apply?
A detailed scholarly case for Trump’s disqualification addresses these issues and concludes he is disqualified under Section 3. The basic argument (dramatically simplifying; the article is 126 pages long) is that:
- Section 3 is not limited to the context of the Civil War and was not repealed by removing the disqualification of ex-Confederates in the 19th century.
- “Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.”
- “Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as ‘aid or comfort.’ It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
Other legal scholars disagree. The arguments here (again, simplified) are that:
- Section 3 still has force, but the events of Jan. 6 do not constitute an insurrection (as demonstrated by the failure of the Department of Justice to charge the president and of the Senate to convict the impeached president).
- “Allowing state election officials to decide for themselves whether someone has incited or committed insurrection, without any meaningful trial or equivalent proceeding, would give states the ability to achieve what term limits forbid.”
- Congress has the power to create an enforcement process for Section 3 (presumably the implication is that failing to do so means no enforcement is possible).
In a recent piece for National Review, Yuval Levin makes a more prudential argument that whatever the merits of the legal arguments, there are good reasons not to create a precedent from this case. He argues:
- Most or all of Trump’s “offenses against our constitutional order … were not illegal.”
- “The idea that a provision of the 14th Amendment intended to keep Confederates out of public office should now be used to keep Trump off the ballot in some blue states (or nationally) is no less obviously just not how our system works. And to pursue it is to undermine our constitutional order — to exacerbate the threats to public confidence in the legitimacy of our system, which have come from all directions in recent years and have done serious damage to American political life.”
A review of these arguments, and many others that have been and will be offered in coming weeks, makes clear the staggering task the Supreme Court has in this case. Some have, and will, argue that the decision is simple – that the court must defer to voters and allow whomever they choose to be on the ballot. That is a tempting position because of its simplicity, but we must take seriously the commands of the Constitution.
Just as popularity cannot dismiss other specific constitutional qualifications for office, it cannot justify ignoring the provisions of Section 3. The court will do a great national service by taking those provisions seriously and conscientiously applying them. Congress, too, can play a role: acting on its authority under Section 5 of the 14th Amendment, perhaps by creating a clear process for determining how the qualifications will apply in future cases.
Many things may happen as this particular case proceeds. Disregarding the Constitution must not be one of them.
*In fairness, there is an argument that Section 3 does not apply to the president (since it mentions senators, representatives and presidential electors but not the president, and, the argument goes, an “officer” is someone appointed to an office, not an elected president). If the Supreme Court decides that is the case, the other arguments addressed in this piece will, of course, be irrelevant.
Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.
- The U.S. Supreme Court will soon be considering whether Donald Trump is ineligible to serve as president under section 3 of the Fourteenth Amendment.
- This provision, ratified in 1868, was intended to prevent former Confederate officials from exercising influence in the post-Civil War government by disqualifying from federal and state offices individuals who had sworn to uphold the constitution but then engaged in rebellion or insurrection or similar actions.
- Taking a written constitution seriously requires serious engagement with the legal arguments about whether Trump engaged in actions that disqualify him from serving under the Fourteenth Amendment.
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