“Enacted in the aftermath of the Civil War, Section 3 seems specifically designed for the Reconstruction Era but may be applicable to modern times as well. Section 3 was for the most part used only for the short period between its ratification and the 1872 enactment of the Amnesty Act. The Amnesty Act removed the disqualification from most Confederates and their sympathizers and was enacted by a two-thirds majority of Congress in accordance with the terms of Section 3.
Some argue the Amnesty Act operates retrospectively. In a recent case, Cawthorn v. Amalfi, discussed in this Legal Sidebar, the U.S. Court of Appeals for the Fourth Circuit found that the act does not apply to later insurrections or treasonous acts.
Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members. Congress last used Section 3 of the Fourteenth Amendment in 1919 to refuse to seat a socialist Congressman accused of having given aid and comfort to Germany during the First World War, irrespective of the Amnesty Act. The Congressman, Victor Berger, was eventually seated at a subsequent Congress after the Supreme Court threw out his espionage conviction for judicial bias.
Recently, various groups and organizations have challenged the eligibility of certain candidates running for Congress, arguing that the candidates’ alleged involvement in the events surrounding the January 6, 2021, breach of the Capitol render them ineligible for office. No challenges have to date resulted in the disqualification of any congressional candidate. A New Mexico state court, however, has removed Otero County Commissioner Couy Griffin from office and prohibited him from seeking or holding any future office based on his participation in, and preparation for, the January 6 interruption of the election certification.” (CRS, 2022)
“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.” (U.S. Congress, Constitution Annotated, 2023)
Legal Constitutional scholars and practitioners such as William Baude, Michael Stokes Paulsen, Jeffrey Sonnenfeld, Anjani Jain, Lawrence Tribe and J. Michael Lueg have written about why in their analysis of the 14th Amendment, Section 3. they find that this Clause disqualifies Mr. Trump from running for office, due to his participation in the January 6, 2021 insurrection.
Tribe and Lueg argue (August, 2023) that the language in Section 3 automatically excludes anyone who has participated in an insurrection against the United States government, regardless of whether there has been any criminal or impeachment procedures:
“This protection, embodied in the amendment’s often-overlooked Section 3, automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.…
The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup…
…The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause”.
In my opinion, no U.S. Constitutional provision ceases to exist unless it has been formally abolished or amended using the complex process requiring super majority votes described in the U.S. Constitution Article V.
Clearly this constitutional matter will be settled by the U.S. Supreme Court. Under the U.S. Constitution, Article III, the Court has jurisdiction to resolve these constitutional controversies. One hopes that for the sake of our Constitutional Representative Democracy, the Highest Court of the Land issues a decision that upholds the U.S. Constitution above partisan politics.
Olga Shewfelt, Professor of Political Science
West Los Angeles College
Congressional Research Service, The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment , 9/7/22. LSB10569 https://crsreports.congress.gov/product/pdf/LSB/LSB10569
U.S. Congress: Constitution Annotated, Fourteenth Amendment Equal Protection and Other Rights: Section 3 Disqualification from Holding Office. https://constitution.congress.gov/browse/amendment-14/section-3/
J. Michael Luttig and Lawrence H. Tribe, The Constitution Prohibits Trump from Ever Being President Again, The Atlantic Magazine, 8/19/23.
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