by Jeffrey Bossert Clark
A handful of law professors,1 many in the so-called “elite” media,2 their TV popularizers,3 and, of course, leftwing participants in social media4 have whipped themselves into a frenzy on a vague hope that President Trump cannot be allowed to run for President a third time. Why? Because of January 6, 2021. Their narrative is that “Jan 6” is an “insurrection” or “rebellion,” which is why the shorthand version of that date has been branded and effectively trademarked as political coin of the realm. Newsweek has gone so far as to say that the U.S. Supreme Court may imminently take up a case on this issue, which is a claim out of touch with reality.5
The arguments trying to stop Trump from going on the ballot are wrong both as a matter of law and as a matter of nationally adjudicated fact. The contrary claims represent yet another instance of the unrelenting “lawfare” being waged on President Trump. Beyond that, the political advocacy launched against Trump is terrible legal policy and, ironically, profoundly antidemocratic. The proponents of these claims would steal from voters the ability to debate and decide for themselves the candidate in the 2024 election that they want to become the forty-seventh President of the United States.
- The Text of the Fourteenth Amendment’s Section 3
Begin with the text of the Fourteenth Amendment. Two provisions are relevant:
Section 3
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.
***
Section 5
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
- Section 3 of the Fourteenth Amendment has three elements: (1) demonstration that an individual took one or more federal or state oaths of certain kinds that (2) the individual broke by participating in an insurrection or rebellion; and then, as a result, such an individual is barred from holding (3) a defined list of federal offices.
In popular circles, including on social media, there is a tendency to play a game of word scrambling with the Fourteenth Amendment’s Section 3 to stir and edit down all of these elements together to read Section 3, counterfactually, as if it said this: ‘Anyone associated with a claimed insurrection/rebellion is barred from holding any federal office.’ In reality, the text of this constitutional provision requires careful parsing, and the word goulash popularizers would cook up is a vast mischaracterization of what Section 3 of the Fourteenth Amendment actually says.
- In terms of the order in which the elements are presented, the text of Section 3 can be condensed a bit for quick analysis into two halves: The first half sets out which positions a purported insurrectionist/rebel cannot hold if the second half of Section 3 is satisfied. The second half sets out what types of oaths for which prior positions such a purported insurrectionist/rebel needs to have broken to be barred from holding one of the listed positions.
- At this point, the first thing to key into about Section 3 of the Fourteenth Amendment is that a bar on becoming the President of the United States, in particular, is notably absent. Instead, here are the positions that someone who “shall have engaged in insurrection against the [United States Constitution], or given aid or comfort to the enemies thereof” are barred from holding, if they have previously taken an oath to uphold the Constitution (numbering added): “[1] Senator or [2] Representative in Congress, or [3] elector of President and Vice-President [i.e., not the President or Vice President themselves], or [4] … any office, civil or military, under the United States, [5] or under any State.” U.S. Const. amend. XIV, § 3 (emphasis added).
It makes no sense for the Framers to have left out explicit reference to the President and Vice President, if they intended to include them via the side door of a general, back-end reference to “any office, civil or military, under the United States.” Id. The only proper conclusion of basic textual analysis is that the President and Vice President were seen as unique officials who would continue to be chosen in the fashion the Constitution provides. And that system is one in which the Electoral College alone is empowered to decide, consistent with state law for choosing electors sent to that College, who could hold the two highest governmental positions in the land. The Fourteenth Amendment’s Framers knew how to draft with precision. And they knew that if they had wanted to bar all potential insurrectionists/rebels from holding any federal office (broadly conceived), the text of Section 3 could have been pared down, and there would have been no need to call out Senators, Representatives, or electors specifically.
This conclusion is reinforced still further by noting that purported insurrectionists/rebels are specifically barred from being electors of the President and Vice President. The fact that potential electors set up to vote for President and Vice President are explicitly referred to as barred from holding their separate positions, but no one is explicitly barred, under the same circumstances, from becoming President or Vice President is glaring. It would make no sense to imagine the Framers thought it necessary to reference the electors of the President and Vice President but not refer to those federal positions themselves, leaving the President and Vice President perhaps to vaguely fall only into the general category of “officer[s] of the United States.” Id.
For these reasons, the text of the Fourteenth Amendment, Section 3 does not bar purported insurrectionists/rebels from holding the office of the President or Vice President. Therefore, the reference to a bar on “hold[ing] any office, civil or military, under the United States,” has to be interpreted to create a bar applicable to purported insurrectionists/rebels from becoming federal officers south of the Vice President.6 Additionally, Senators and House members are specifically referenced, and so they are no doubt subject to Section 3’s bar—as would their staff and as would any Executive Branch office beneath the Vice President.
Lastly, just for completeness’ sake, note that Section 3 is arguably ambiguous regarding its application to offices that are part of the Judicial Branch. On the one hand, contrast the explicit reference in Section 3 to a “judicial officer of any State” with the absence of an explicit reference to a federal judicial officer such as a Judge of the Supreme Court or inferior federal court.7 This could mean that the Section 3 bar does not apply to the federal Judicial Branch at all.
However, recall the rough division of Section 3 into two halves flagged above. The first part refers to the offices or positions that purported insurrectionists/rebels are barred from holding. The second half establishes which prior oaths, coupled with insurrection or rebellion, will cause the bar to drop. And the reference to “judicial officers” at the state level comes in the second half of Section 3, not the first half. The bar on holding certain offices comes in the first half of Section 3 and is described in different terms as applicable to “civil or military” offices. Id. And judicial offices would seem to fall into that broad category. These structural differences are lost on those who adhere to or try to pass off as the genuine article the “word salad” interpretation of Section 3.
On balance then, the best textual reading is that those who engaged in an insurrection or rebellion are barred from any federal judicial office under the first part of Section 3, if the bar’s threshold condition of the relevant prior judicial office holder having taken an oath and then broken it is also met.
In other words and in sum, the constitutional disability that Section 3 of the Fourteenth Amendment creates applies to:
(1) the entirety of the Legislative Branch, i.e., all members of Congress in either house and their appointed sub-officers;
(2) a large portion of the Executive Branch, i.e., all federal officers south of the Vice President (including those in the military);
(3) the entirety of the Judicial Branch, i.e., all Justices and Judges and their appointed officials that take oaths of office;
(4) all electors for the offices of President or Vice President; and
(5) all of those holding any civil or military office under any State.
However, the President and Vice President are not barred offices even when the other elements of Section 3 are met.
- Applying the text to former President Donald Trump, the analysis would proceed as follows: Under the first element of Section 3, President Trump took a federal oath of office on January 20, 2017. Thus, as to him, the first element of Section 3 is satisfied (assuming the President was intended to be treated as an “officer of the United States.” See supra n.6 (setting out AG Mukasey’s argument that even this element cannot be met because the President is not such an “officer”). Assume, arguendo, that the second element can also be met, although there are many reasons to conclude that even that element fails, as covered below in Section D, infra. But, most importantly, it is easy to see that the third element cannot be met because the President is an office explicitly left out of Section 3’s bar on holding certain offices.
The text of a legal provision is always the best evidence of its intended meaning. And the Framers of the Fourteenth Amendment knew how to make the presidency a barred office to any adjudicated insurrectionist/rebel if they wanted to. Doing so would have been astonishingly simple. Either of these two straightforward alternatives below would do so (changes from the Fourteenth Amendment as it was ratified, which remains in force to this day, are in blackline). One possibility is to add a few words. The other subtracts a clause (note that the subtraction possibility assumes, for the sake of argument, that AG Mukasey’s reading of Section 3 could somehow be overcome):
Possibility 1
No person shall be President, Vice-President, or 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.
Possibility 2
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.
The fact that the ratifiers of the Fourteenth Amendment adopted neither alternative framing of Section 3 (i.e., neither Possibility 1 nor Possibility 2) shows that even someone who was an adjudicated insurrectionist/rebel is not barred from being President or Vice President. However, the electors for those offices are subject to being saddled with that disability. The internal logic of such a conclusion would be that an Electoral College free of past, oath-breaking insurrectionists/rebels was seen as providing a sufficient screen that those ratifiers were relying on to test who should be President or Vice President. In short, the Electoral College gauntlet was trusted as the exclusive screen and no amendment to the Constitution was necessary, even in the wake of the Civil War, to alter that system. By contrast, weeding out potential officers of the Legislative and Judicial Branches and from the sub-presidency and sub-vice-presidency levels was seen as requiring the creation of a new constitutional screen, which is the purpose Section 3 now serves.
- The Text of Section 5 of the Fourteenth Amendment
- The text of Section 5 of the Fourteenth Amendment is simple, and its implications in dooming the argument that President Trump is disqualified from running for and taking office if he wins the 2024 election are also simple. Namely, as a general matter, Congress reserved to itself “the power to enforce, by appropriate legislation, the provisions of this article,” i.e., the Fourteenth Amendment.
Ergo, individual citizens, state secretaries of state, state attorneys general, state governors, and federal Executive Branch officials lack the power to pronounce Donald Trump ineligible to run for President under Section 3 of the Fourteenth Amendment.
Against this straightforward point, skeptics may argue—‘Well, the Due Process and Equal Protection Clauses of the United States are enforceable by individuals and those rights without new Section 5 congressional enforcement legislation, so there is no reason that individuals could not similarly enforce Section 3 of the Fourteenth Amendment.’
The problem with that interpretation of Section 3 is that the rights to (1) due process (tracing back to the Fifth Amendment’s Due Process Clause, part of the Bill of Rights) and (2) equal protection are individual rights. Additionally, Congress did pass enforcing legislation as to such rights by creating private rights of action against state actors violating such constitutional rights (and others). For instance, consider 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable ….
Section 1983 is clearly enforcement legislation adopted by Congress under its authority pursuant to Section 5 of the Fourteenth Amendment. See, e.g., Overview of Ku Klux Klan Act, available at https://en.wikipedia.org/wiki/ Ku_Klux_Klan_Act (last visited Sept. 9, 2023) (“The act was the last of three Enforcement Acts passed by the United States Congress from 1870 to 1871 during the Reconstruction Era to combat attacks upon the suffrage rights of African Americans.”).8
Then Kamala cannot be elected.
Kamala supporting the “peaceful protesters” that wounded 400 and killed an 8 year old girl
Who is the fund to bail out “protesters” getting out of jail?
https://thefederalist.com/2020/08/31/meet-the-rioting-criminals-kamala-harris-helped-bail-out-of-jail/
The Minnesota Freedom Fund got violent criminals out of jail and Kamala promoted it.
https://hotair.com/david-strom/2023/03/01/the-long-shadow-of-kamala-harris-n534000
Think of the stack-up of lies the left clings to in order to cling to this fantasy. In order to try and use the 14th Amendment, which doesn’t apply, they have to use indictments for crimes invented, which don’t include insurrection or sedition, based on a protests that wasn’t an insurrection motivated by an election that wasn’t legitimate.