In 1868, America wrote into its Constitution the Fourteenth Amendment. It has had immense importance in giving birth to and nurturing the modern civil rights revolution. There is a part of it that, on re-reading, seems at first to be out of date. However, if Section 3 of the Amendment is not a dead letter now, it may be a fairly simple way to deal with President Trump and those who joined him in stirring up the mob that staged a deadly and hostile occupation of the Capitol last week.
Section 3’s main effect probably would be to disqualify President Trump and his cohorts in Congress from ever seeking election again. Depending upon how it fit with other parts of the Constitution – on impeachment of the President and on expulsion of lawmakers – the Section might be put into operation without a super-majority vote in Congress. The courts might have to sort that out.
Because the language of the Section is somewhat clumsy, here is a close paraphrasing of its text: No one can hold any office, civil or military, in the federal or any state government if they previously have taken an oath to defend the Constitution and have engaged in insurrection or rebellion against the Constitution, or if they have given aid or comfort to enemies of the Constitution.
What this meant, in 1868, clearly was a disqualification of former adherents to the Constitution who had aided the cause of the Confederate states during the Civil War. If this language were to be applied now to any sitting member of Congress, or to President Trump, no doubt their lawyers would argue that the provision’s only meaning was its original Civil War era intention.
But the language of the Section does not say explicitly that it is limited to the past or to a prior circumstance, it has never been amended or deleted, and it is simply not true that any part of the Constitution expires simply because of its origins. Indeed, some in Congress, reacting now to the invasion of the Capitol last week, are suggesting that the disqualification mandate should now be implemented.
In a law Congress passed in 1898, thirty years after the Amendment was ratified, Congress must pass a law to actually disqualify someone from public office. It is not clear, on the face of the Section, that this could only be done by a super-majority in both houses of Congress. It does take a two-thirds majority to convict a president and remove him from office under the impeachment clause, and it does take a similar majority to expel any U.S. senator or representative from their seats. But the disqualification provision is a stand-alone part of the Constitution, and is clearly designed to deal with a drastic challenge to the constitutional order. An argument could be made that a simple majority would be sufficient – if not for removal, at least for permanently barring from public office.
It is predictable that if Trump or any member of Congress were ordered disqualified under Section 3, there would be a challenge in the courts. There are many specific words in the provision – “insurrection,” “rebellion,” giving “aid or comfort,” and “enemies” — that would be open to interpretation in any such court case. There have been few cases throughout history that provided an opportunity to interpret Section 3, so courts would essentially have to start fresh.
It is not clear, from history, how Section 3 is to be enforced. An 1870 federal law treats as a minor crime, punished by as much as a year in jail and a $1,000 fine, for accepting any office after being disqualified under Section 3 for taking part in insurrection or rebellion. A federal court in North Carolina, ruling in a case filed under the 1870 law, declared that Section 3 treats as insurrection or rebellion as involving any “voluntary effort to assist” in such action with the aim of having it succeed – meaning, apparently, a goal that the enemies of the Constitution would prevail in something approaching overthrow of the government.
It does not seem an exaggeration to find that what happened at the Capitol last Wednesday, and the urging by the President and some members of Congress that energized the mob, could fit within what the drafters of Section 3 had in mind. That just might be tested.