Now that Trump’s been acquitted — a 2nd time, no less — the question has arisen whether an obscure provision of the 14th Amendment could be used to keep Trump from running for President again.
Background to the 14th Amendment
The Fourteenth Amendment, adopted on July 9, 1868 as one of the Reconstruction Amendments, addresses citizenship rights for former slaves following the Civil War. In brief, the Amendments’s five sections provide:
- Section 1 establishes that the former slaves (and any other “persons born or naturalized in the United States”) are citizens of the United States and the states in which they reside.
- Section 2 establishes the proper apportionment of representatives.
- Section 3 prevents anyone who has previously held public office in the United States who was part of an insurrection (i.e., the Confederacy) from holding public office again.
- Section 4 establishes the validity of the public debt of the United States.
- Section 5 establishes the power of the Congress to enforce the 14th Amendment through legislation.
In addition, section 1 prevents any of the individual states states from:
- abridging the “privileges or immunities of citizens of the United States”;
- depriving “any person of life, liberty, or property, without due process of law”; and
- denying any person within its jurisdiction “the equal protection of the laws.”
These provisions, collectively, are commonly known as the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Due Process Clause, in particular, prohibits state and local governments from depriving anyone of life, liberty, or property without a fair procedure, and makes most of the Bill of Rights applicable to the states.
Section 1 may be the most litigated parts of the Constitution, forming the basis for landmark decisions such as Dred Scott v. Sandford (1857), the Slaughter-House Cases (1873), Brown v. Board of Education (1954), Roe v. Wade (1973) Bush v. Gore (2000), and Obergefell v. Hodges. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.
Section 3 of the 14th Amendment
So, focusing on section 3 of the 14th Amendment, that section, in its whole, provides as follows:
|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.|
It’s pretty clear that section 3 was intended to prevent former Confederates who had once held office to hold office again during reconstruction. There was a process for restoring the civil rights for former confederates, which is that the Congress could vote by a 2/3rds supermajority to remove the disability of anyone that the prohibition applied to.
In any case, the political will to punish the former Confederates did not last long: by 1872 the Congress had passed the Amnesty Act, which removed these penalties on all the former Confederates except for those “Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.”
The Berger Case
Since Reconstruction, the case has been applied only one other time, and that’s when the Congress refused to seat Victor Berger as a Representative from Wisconsin, because Berger was a founding member of the Social Democratic Party of America who had also been convicted of violating the Espionage Act for publicizing his anti-interventionist views. That conviction was subsequently overturned in Berger v. United States 255 U.S. 22 (1921), a case that had nothing to do with the 14th Amendment but everything to do with the bias of a judge who had published his own anti-German views prior to the trial.
As Applied to Trump
So, the question finally arises, can section 3 of the of the 14th Amendment be used to prohibit Trump from ever holding office again. And the answer is
. . . wait for it . . .
. . . wait for it . . .
. . . wait for it . . .
Yup, that’s the answer.
The problem with applying section 3 to Trump is that it’s not clear how the United States is to establish that Trump “engaged in insurrection or rebellion” against the United States.
It’s been suggested that the Congress, with Democratic control of both houses of Congress, could simply pass a Congressional Resolution declaring that Trump engaged in insurrection.
But Trump could challenge this in court.
Or, the Congress could wait for Trump to be indicted and convicted for inciting the insurrection in Federal Court, in which case there would be little doubt.
But that would require a criminal conviction which — for reasons previously cited — would be an uphill struggle.
It could happen, but as with every bloody thing ever associated with the former President, nothing ever, ever, ever, ever, ever, ever seems to be just a legal slam dunk.