Legal experts are debating the relevance of Section 3 of the 14th Amendment, which disqualifies people involved in insurrection from holding office. Some believe it could mean the disqualification of former President Trump from running for office.
A New Law
Following the Civil War, the United States changed the 14th Amendment, which contained Section 3 to disqualify individuals from holding office if they “engaged in insurrection or rebellion” against the United States.
Over the years, it was believed that this provision became obsolete. In 1872 and 1898 Congress created amnesty acts for ex-Confederates which made the disqualification by Section 3 “hereby removed.”
However, some legal experts now argue that Section 3 is still relevant and could have a significant impact on upcoming elections. They say Section 3 could possibly get former President Trump legally barred from holding office.
Professors William Baude and Michael Stokes Paulsen, both respected conservatives, argue that “Despite its long slumber, Section 3 … is alive and in force.”
Last month, the professors posted a 126-page law review that said the term “insurrection” encompasses a broad range of conduct “attacking the authority of the United States.” The two professors think the law could be applied to senators who supported the events of January 6th.
They wrote, “Taking Section 3 seriously means that its constitutional disqualifications from future state and federal office holding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others.”
A Question of Power
From their interpretation, they believe that this disqualification is not dependent on the power of Congress or the Justice Department but can be determined by various state, county, or federal officials responsible for candidates’ eligibility.
Baude and Paulsen’s interpretation could lead to a challenge regarding Trump’s eligibility in the upcoming elections. With numerous state attorneys and election officials, it is likely that such a challenge will arise and eventually reach the federal and possibly Supreme Court.
Going to Court
Washington attorney Adam Unikowsky wrote an analysis of the piece and said it would be difficult for judges to explain why Trump’s involvement does not qualify as engaging in insurrection. While the Supreme Court may prefer not to rule on such matters, it may become inevitable if a lower court deems Trump ineligible to run for office.
Unikowsky also wrote, “Is the Supreme Court actually going to disqualify Trump? In my opinion, probably not, but there’s a non-trivial chance that it will. In my view, contingent on Trump continuing to be a candidate for President, there is a 10% chance that the Supreme Court will hold, prior to the 2024 election, that Trump is constitutionally ineligible.”
Legal Experts’ Perspectives
Agreeing with Unikowsky, Rep. Adam B. Schiff (D-Burbank) said on MSNBC, “The 14th Amendment, Sec. 3, is pretty clear: If you engage in acts of insurrection or rebellion against the government or you give aid and comfort to those who do, you are disqualified from running. It doesn’t require that you be convicted of insurrection, it just requires that you have engaged in these acts.”
Schiff also pointed out, “This will be tested when [a state] secretary of state either refuses to put him on the ballot or puts him on the ballot and is challenged by a litigant. I would imagine it will go up to the Supreme Court, and that’s the big question mark through all of this, which is: What will the Supreme Court do?”
A Different Stance
However, Stanford Law professor Michael McConnell strongly disagrees with this interpretation. McConnell argues that Congress had the opportunity to disqualify Trump after his second impeachment trial but failed to do so.
McConnell also pointed out that it is “significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute.”
McConnell then concluded his point by saying, “We are talking about empowering partisan politicians such as state secretaries of state to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice,” and “If abused, this is profoundly anti-democratic.”
“Take it to SCOTUS”
However, many seem to agree with the new interpretation with one social media user commenting, “Have to agree. Anyone guilty of an attempted insurrection (like trying to overturn a Presidential election) is prohibited from holding public office. Seems cut and dry to me. Take it to SCOTUS, they are Constitutional Originalists.”
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