Disqualifying Trump via Section Three of the Fourteenth Amendment

A Bad History

Robert E. Lee—not barred from running for president in 2024

There’s a move on to invoke Section Three of the Constitution’s Fourteenth Amendment, ratified in 1868, to disqualify former president Trump from reelection. According to Section Three, a person who has sworn to uphold the Constitution when serving in the federal or a state government, and has then engaged in an insurrection or given aid and comfort to insurrectionists, can’t hold elected office in those governments. The original intent was to bar certain leaders of the former Confederacy from holding office.

That was a total bust. The prohibition can be overridden by a two-thirds majority in both chambers of Congress, and four years after ratification, that’s just what happened. Former Confederates came back into power.

The white North was changing its mind about the purposes of U.S. victory in the Civil War. By 1878, the federal government effectively agreed not to enforce key provisions of the Fourteenth regarding black U.S. citizens’ equality before the law. That roughly century-long policy was unconstitutional, but when it came to former Confederates’ returning to office, the ban carried a perfectly constitutional means of undoing itself: in 1872, the Amnesty Act passed Congress by the constitutionally required two-thirds vote, removing the “disability” to hold office from many of its intended targets.

Then, with the coming of the Spanish-American War in 1898, when only a few hundred former Confederates were still under the ban, Congress made a gesture in the direction of wartime national unity and removed the remaining disabilities. By the time Congress went out of its way to re-qualify, specifically, Robert E. Lee and Jefferson Davis for holding office—that was in 1975 and 1978, respectively—both Section Three and overcoming it had been rendered gestural and nothing but.

It’s true that during the provision’s four-year period of operation, federal prosecutors removed a lot of people from office, on the basis not only of the section but also of a congressional act enforcing it. Still, this particular effort of the Fourteenth stands mainly as yet another unedifying bad-history joke on black Americans in particular and constitutional cogency overall. The language is still kicking around in the amendment, despite longstanding nullity regarding its original intent, only because that’s how we do things here. Outmoded verbiage keeps our constitutional history pleasingly fuzzy.

Oh. In 1919, pretty much out of nowhere, Congress seized on Section Three to unseat a socialist. He was soon re-seated. That’s the last time anyone even tried to use it.

To some legal minds, this history can’t be decisive, no matter how embarrassing. And that makes sense, in general terms. There’s a provision on the books—why not use it? Trump is under no amnesty. The applicability of constitutional language isn’t necessarily determined by past uses and failures.

The interesting problem here, though, is that arguments for and against disqualifying Trump’s candidacy via the language of Section Three plunge us right back into irresolvable disagreements about our national history. The provision is supposed to be self-executing, in that it applied to former Confederate leaders on the basis not of conviction in court for insurrection but of manifestly insurrectionary behavior—fighting in the Civil War. So now some Democratic Party state attorneys general think they’ve got a constitutional means for keeping Trump off the ballot in their states, “automatically,” without Congress having to do anything.

Based on Section Three, he’s just barred, they say, for insurrection or at the very least for aid and comfort; he can’t run for office. The argument has also been made in lawsuits and law-review articles pressuring various states to take that position.

Obviously an attorney general can’t just randomly say that anybody they don’t like has committed insurrection and is therefore automatically off the ballot. In the likely event of a dispute, you have to show a reason. Section Three thus remains subject—as it was in the beginning—to judicial ruling. Courts will have to decide that absent a conviction for sedition or treason or whatnot (none of Trump’s current indictments allege any of that, shrewdly enough), what happened on January 6, 2021, makes Trump as obviously insurrectionary as those Confederate leaders and officers who had once sworn, as Trump did, to uphold the Constitution, or as obviously insurrectionary, at least, as any earlier American insurrectionists that the framers of the Fourteenth had in mind.

So all the old arguments about what counts as insurrection in U.S. history—arguments that prosecutors with Trump under indictment have avoided having to make— come lurching back into the issue. And almost everything everybody has to say about that subject, in the ongoing discourse among magazine and newspaper opiners and social-media users, is partial to the point of silliness.

That’s the problem with appealing to history. It’s rarely the help you think it is.

If you want Trump out of the race—I’d sure enjoy that—it may seem glaringly obvious to you that Section Three should apply in this case. But the fact is that the section originally responded to the secession of eleven states, five years of civil war, and more than 600,000 dead, which might make those few hours on January 6, awful as they were, look like not so much. . . . Some people arguing for Trump’s automatic disqualification have therefore looked back to the Whiskey Rebellion, a far lesser event than the Civil War. It too “would have” come under Section Three, they say, had Section Three existed in 1794.

Sure. Maybe. But does that line of thought really help?

Because if you want Trump in the race—I don’t—or believe for other reasons that applying Section Three is a bad idea, the Whiskey Rebellion too can easily be shown to be a whole lot more of an insurrection than January 6. It built up over years, put seven western counties under the sway of a self-created alternative government, flew its own flag, banished citizens from the region, had a shootout with the U.S. Army, and ended only when 12,000 troops marched westward to subject the entire region to military suppression and occupation. (Have I mentioned that I wrote the book about it? Yes. I have.)

The underlying problem for this discussion may be that our precedent insurrections—like the insurrection that made us a country—were secessionist. Despite the Confederate fantasies of some of the jackasses of Jan. 6, secession may be a categorically different thing from entering the Capitol and trying to overturn a presidential election, with the encouragement of the lame-duck president himself and key members of the legislature. If it comes to that—I don’t know—the intentions behind January 6 may be even worse, if the effects less dire, than the intentions behind previous insurrections. It all depends on where you sit, and that doesn’t seem to me to have much to do with whether a long-inert aspect of the Fourteenth Amendment is likely to be effectively applied here.

This is where all the history chitchat gets us: nowhere. Op-ed writers and readers love to take positions based on history. Some historians love to promote their profession and themselves by suppposedly informing the public about supposed parallels. Judges love to gab speculatively about the past. But judges also have to decide, and while history has its uses, a clear direction is rarely one of them.

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Note: I do the “Further Reading” section only in exclusives for paying subscribers, and I rarely embed links (I want you to keep reading), but in this case, to give examples of what I’m talking about and credit where it’s due, here’s a cluster of links: https://crsreports.congress.gov/product/pdf/LSB/LSB10569, https://www.washingtonpost.com/opinions/2023/09/09/disqualify-trump-14th-amendment-history-weak/, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3748639.