Section 3 of the 14th Amendment is not the constitutional shortcut around impeachment and conviction that Democrats would like it to be.
Section 3 of the 14th Amendment is not the constitutional shortcut around impeachment and conviction that Democrats would like it to be.
B ecause Donald Trump’s conduct pushes so many envelopes, he attracts a constant stream of creative interpretations of the Constitution and the federal criminal code from people looking for a magic bullet to take him down. I’ve previously explained why Trump can be impeached even after leaving office, and why it might now be justifiable to remove him under the 25th Amendment. But a third theory has also been invoked by a number of commentators on the left, and even raised as a possibility by Nancy Pelosi: that Congress could disqualify Trump from holding future office under Section 3 of the 14th Amendment. And this one, unlike the first two, doesn’t pass the smell test.
Section 3 of the 14th Amendment, which passed Congress in 1866 and was ratified in 1868, bans anyone who has taken an oath to support the Constitution as a federal or state officer — a category that plainly includes the president — from “hold[ing] any office, civil or military, under the United States, or under any state” if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Section 3 was targeted at banning former Confederates from regaining federal and state offices they had previously held. After originally drafting a ban that focused on the Confederacy, Congress broadened the language to apply more generally in the event of future rebellions, insurrections, or wars. It was revived again during the First World War, mainly to target socialists who opposed the American war effort.
The attraction of Section 3 to its proponents is the idea that Trump could be disqualified from future federal office by a majority vote of Congress, without the bipartisan two-thirds vote required for the Senate to convict in the event of an impeachment. Law professors Bruce Ackerman and Gerard Magliocca, writing in the Washington Post, claim that such a “finding could be accomplished by a simple majority vote of both houses.” Moreover, say its proponents, this could be done without a trial that would delay any other Senate business at the outset of Joe Biden’s administration.
Deepak Gupta and Brian Beutler, writing in the New York Times, also aim at finding a way to run the Section 3 machinery around Senate Republicans, and potentially use it to give judges or other unspecified actors the power to disqualify en masse . . . well, they never quite say, but their idea is plainly to use an expansive definition to have party-line votes of Democrats target a lot of Republicans, potentially including everybody who objected to counting electors:
Congress can also decide how this legislation will be enforced by election officials and the courts, based on all the facts as they come out. The Constitution prohibits Congress from enacting so-called bills of attainder, which single out individuals for guilt. But, in addition to the legislation we suggest, Congress could also pass nonbinding sense-of-Congress resolutions that specify whom they intend to disqualify. This would provide a road map for election officials and judges, should any people named in those resolutions seek to run for or hold public office. And Congress can do this by a simple majority — far less of a hurdle than the two-thirds majority in the Senate that removing the president requires. . . . As we learn more in the coming months about who is culpable for the siege, the ranks of those disqualified from office will likely swell. The legislation we envision would allow future courts and decision makers to apply the law after the investigations are complete. Eventually, we should have a 9/11 Commission-style report on what led to these events; the facts marshaled there can be deployed under the legislation we propose. [Emphasis added.]
This should raise serious concerns that what Gupta and Beutler are really pushing is a surreptitious partisan scheme to deprive voters of their chosen representatives. But even if that isn’t the case, there are real procedural complications to going down the path they map out. Section 3 says that Congress can, by two-thirds vote, lift a prospective candidate’s disqualification from federal office, but it never specifies how said disqualification should be enforced in the first place. Law professor Daniel Hemel, also writing in the Post, notes that Congress has not passed new enabling legislation for such a federal process, so it is questionable whether a majority vote of Congress to bar a presidential candidate years in advance (as opposed to seating one of its own members after election) would be valid. As detailed by Myles Lynch in a thorough review of Section 3’s history, enforcement in the post–Civil War and First World War eras was handled through a patchwork of state-court rulings and congressional votes, typically after a candidate had been elected or appointed to a particular office. At the time, under the first Ku Klux Klan Act, Congress also allowed suits challenging the qualification of officials, a remedy designed to aid black Southerners prosecuted or oppressed by former Confederates.
Putting all those procedural questions aside, however, the theory that Trump qualifies for a Section 3 ban in the first place is dubious, and extending it beyond Trump is even more so.
Engaging in Insurrection or Rebellion
Consider the plain language of the first of Section 3’s two categories of proscribed conduct: It disqualifies anyone who “engaged in insurrection or rebellion” against the United States or a state government. As Lynch notes, the concepts of insurrection and rebellion were taken from the Militia Act of 1795 and the Insurrection Act of 1807, which defined insurrection as an uprising against a state and rebellion as “opposing or obstructing the execution of the laws of the United States ‘by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals.’” The Capitol riot, which overwhelmed the Capitol Police long enough to disrupt a joint session of Congress engaged in a constitutional process, might qualify as such a rebellion — my colleague Andy McCarthy has some thoughts on that. (The Insurrection Act only considers a state of insurrection or rebellion to exist after the president has issued a proclamation that one exists; the drafters of the law did not envision the president himself being accused of rebellion. That limitation, however, seems unlikely to matter here.)
There is also the question of what precisely the framers of the 14th Amendment meant by “engage” in rebellion. A natural reading of the language suggests someone who actually engaged in rebellion, not simply someone who incited it, egged it on, or helped create the conditions in which it arose (i.e., a participant in the riot, not simply someone who gave a speech before it started). The Supreme Court of North Carolina, in its 1869 decision in Worthy v. Barrett, defined engaging in rebellion as:
Holding any of [certain government] offices under the Confederate government [or] voluntarily aiding the rebellion, by personal service, or by contributions, other than charitable, of any thing that was useful or necessary in the Confederate service.
This is not an especially enlightening definition, since the court in Worthy disqualified a sheriff from office for having served as a Confederate sheriff, and the rest of the definition similarly assumes a rebellion with a government and active armed forces. But it does give us a sense that the language was read at the time to mean either active participation or material support for a rebellion, not simply heated rhetoric that might inspire someone to rebel.
Lynch further discusses cases in which the House considered disqualification of potential members. Three stand out. Lewis McKenzie was a member of the Virginia House of Delegates before secession:
In that role, he voted for a resolution stating that, should negotiations break down between the northern and southern states, “every consideration of honor and interest demand that Virginia [] unite her destiny with the slaveholding States of the South.” He also voted for appropriating state funds for arms and munition, stating in support: “Virginia is not afraid. When the convention comes to a decision . . . and it is ratified by the people, she will take her position, and, if necessary, fight.” Then, he voted to appropriate funds to “the Emmet Guards and to the Irish volunteers . . . which soon after entered the Confederate service. . . .” Just over two weeks later, the State of Virginia seceded.
The House voted to seat McKenzie anyway, a result that Lynch attributes to “the truism that aid and comfort given to an entity that is not yet an enemy of the United States cannot be used to disqualify somebody for [sic] holding office, even if that entity shortly thereafter becomes an enemy.” McKenzie’s vote for the conditional pro-secession resolution could be read as contributing to the atmosphere that led Virginia to rebel, but it did not constitute engaging in rebellion itself.
By contrast, John Y. Brown was excluded from office for writing a letter to a Louisville newspaper during the war stating that “If this northern army shall attempt to cross our borders, we will resist it unto the death; and if one man shall be found in our Commonwealth to volunteer to join them he ought and I believe will be shot down before he leaves the State.” While Kentucky was not itself in rebellion, this was considered to be enough to show that Brown either engaged in rebellion or, more likely, aided and comforted the enemy. John D. Young was also excluded from office, in part for avowing in 1861 that Kentucky should raise troops against the federal government, for refusing to take a loyalty oath and declaring his Confederate sympathies, and for fleeing to Canada. Young, however, had also given information leading to the Confederate capture of Union soldiers — a very practical form of participation in the Confederate rebellion. Lynch notes that the House appeared to be conflicted over whether Young’s words alone would be sufficient for exclusion, absent his overt acts of assistance.
Lynch concludes that the limited nature of the definitions of insurrection and rebellion “ensures that standard acts of peaceful protest and civil disobedience designed to show opposition to or hinder execution of supposedly unjust laws could not trigger such extreme consequences.” The same principle would apply to acts of peaceful protest that subsequently spiral into something that crosses the line into rebellion — the question is whether someone engaged in the rebellion after the line was crossed.
The framers of the 14th Amendment were quite aware of the knotty issues involved in separating active participants in rebellion from those whose rhetoric had perhaps paved the way for secession — some of whom remained loyal to the Union during the Civil War itself. There were extensive controversies in the 1860s over the limits of free speech during the war, and many protests against overzealous crackdowns on “Copperheads” who remained in the Union but criticized the war. By carefully limiting the “rebellion” clause of Section 3 to those who actually “engaged in insurrection or rebellion,” not merely those who incited it, the framers of the amendment made a choice to limit disqualification under the first part of the definition to those who participated once rebellion was underway.
Aid and Comfort
Eric Foner, one of the most eminent historians of the Reconstruction period, argues that Trump should be disqualified because he “took an oath to support the Constitution and now he has given aid to insurrection and that is the kind of thing the people who wrote the 14th Amendment were trying to avoid” (Emphasis added). But aid, too, is carefully limited by the text — and the way in which it is used offers further reason not to read the term “engaged” to cover conduct that would render the rest of Section 3’s definition superfluous.
Having sidestepped liability for merely secondary participants in the “engaged in” portion of Section 3, its framers used well-known language to cover such participants separately, referring to them as those who have “given aid and comfort to the enemies” of the United States. This was a phrase with long and specific history in the law, already used in the definition of “treason” in Article III, Section 3 of the Constitution. “Aid and comfort” is unquestionably a broader term than “engage,” and would extend to statements of encouragement — a definition that the Worthy and Brown cases clearly considered. It was the “aid and comfort” provision of Section 3 that was used against Victor Berger, the Wisconsin socialist who vocally opposed the war effort during the First World War.
As in the Article III definition of treason, however, the key word is “enemies”: An enemy does not exist until hostilities are declared or commenced. Prior to the Civil War, it was limited to foreign enemies in an actual or declared war. The Supreme Court, in Prize Cases, extended its use for purposes of wartime maritime law to include the Confederacy, which obviously claimed to be a sovereign government. Even if we assume (sensibly) that the broader definition should be used, “enemies” signifies something much more like a real government engaged in a real war than an ad hoc mob that forms, riots, and dissipates in the course of an afternoon.
In short, as much as Democrats and progressive pundits and historians may wish for a constitutional shortcut around impeachment, the framers of the 14th Amendment did not give them one. Writing in the aftermath of a terrible war, and eager to break the hold of ex-Confederates in the South, they were nonetheless careful to limit the acts that disqualified officeholders to either actively engaging in rebellion, or giving aid to a rebellion that had reached the critical mass of forming its own breakaway government. If they want to disqualify Trump from holding office, they will need to persuade enough Republicans to go along with them through the existing constitutional process of impeachment and conviction. And they will have to sacrifice something of value to them — time on the Senate floor — to take such an unprecedented step.