Legal analysis of the 14th Amendment’s Disqualification Clause and the upcoming election
Fourteenth Amendment, Section 3: (Disqualification Clause)
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.
Enactment– Following the Civil War, there was a concern that former Confederate politicians and sympathizers would simply be elected to federal office. In 1866, Congress debated this issue. Some Republicans, such as Senator Jacob Howard of Michigan wanted all former confederate politicians to be barred from voting and from holding federal or state office. Eventually, this was weakened a bit and the above “engaged in insurrection or rebellion” disqualification language in Section 3 was adopted and passed on July 9, 1868. Notice that Section 3 only disqualifies persons who had previously “taken an oath… to support the Constitution of the United States”. This appears to be designed to prevent former Confederate politicians from winning elections in the South, which they would have done.
- Insurrection or Rebellion– one of the few cases addressing what was rebellion was actually the North Carolina case of United States v. Powell 65 N.C. 709 (1871). Powell was indicted for accepting public office while knowing that he was barred from holding office because of Section 3. Before the war, Powell was a constable which is like a magistrate judge mixed with a sheriff and took an oath of office. During the war, Powell supposedly hired a substitute for the confederate draft and obtained a certificate of exemption that didn’t require him to personally fight. After the war, Powell was elected as sheriff of Sampson County. Powell was then indicted for being disqualified by Section 3, but then accepted public office anyway. The case is just a description of the jury instructions provided by the judge. The judge’s instruction stated, “But the defendant alleges and offers evidence to show that he did not do this voluntarily. That he was himself enrolled [*713] and was about to be conscripted and was overcome by force, which he could not resist, and the question is whether, if you find the facts alleged by the defendant to be true, these exceed or justify his conduct in law. We are of opinion, gentlemen, that the word engage implies and was intended to imply a voluntary effort to assist the insurrection, or rebellion, and to bring it to a successful termination; and unless you find the defendant did that, with which he is charged, voluntarily, and not by compulsion, he is not guilty of the indictment.First, let me say that I have never seen a judge instruct a jury like this. Today, judges just read more objective jury instructions that are mostly just recitations of the law. The Powell judge used terms like “we are of the opinion”, which must have been allowed then. Regardless, the judge was stating that if Powell was drafted and didn’t go voluntarily, that would not constitute insurrection or rebellion. Let me add in my legal disclaimer here, I am not a constitutional scholar, and I am confused by the case. The case only describes the jury instructions, and I don’t know what the jury nor a subsequent court (if any) decided. My hope is just to try and struggle with this the best that I can to help my non-legally trained readers.
- Self-executing– In re Griffin, 11 F. Case 7 (C.C.D.Va. 1869), Griffin was convicted of a crime, and he challenged the conviction stating that the judge was a legislator in the Confederacy. In this appeal, Chief Justice Chase stated that Section 3 was not self-executing in this case. Instead, Congress would need to hear evidence and then determine if the person was disqualified. Chief Justice Chase stated that if judge were automatically disqualified, then that would “annul all of official acts performed by these officers. No sentence, no judgment, no decree … no official act would be of the least validity.” Essentially, all rulings by any judge deemed disqualified would be thrown out. Years of cases would be suddenly in limbo. During the Reconstruction Era, many interim judges and officials were appointed to just temporarily keep the court systems moving. The court was concerned that if they were automatically removed without Congress it would cause chaos.
- Officer– Worthy v. Barett, 63 N.C. 199 (1869), In Worthy, the sheriff of Moore County was elected sheriff during the Confederacy and again after the Confederacy. The county commissioners refused to allow Worthy to take office as he was disqualified per the Disqualification Clause. One of the main issues was whether or not a sheriff was an “officer” per the clause. The court questioned, “Is a Sheriff an officer? An office is a right to exercise a public or private employment, and to take the fees and emoluments; in which one has a property; and to which there are annexed duties; and with us in public offices, oaths to support the Constitution of the State and of the United States. I do not know how better to draw the distinction between an officer and a mere placeman, than by making his oath the test. Every officer is required to take not only an oath of office, but an oath to support the Constitution of the State and of the United States, Rev. Code, chap. on “Oaths.” Whereas every mere placeman is simply required to take an oath to perform the particular duty required of him, as in the case of jurors, commissioners, c., and takes no oath to support the Constitution of the State, or of the United States.” So at least the North Carolina Supreme Court focused on the oath. A president obviously takes an oath, so by this logic would be an officer.
- Colorado Supreme Court- in Anderson v. Griswold, 2023 CO 63, the court held that Donald Trump was barred from holding office pursuant to the Disqualification Clause and therefore would not be on ballots in Colorado. Procedurally, the plaintiff is a group of voters who sued Griswold who is the Colorado Secretary of State. The Colorado Republican Party and Trump intervened. Initially the case was heard in the lower District Court, where the court decided that Trump did engage in insurrection. There is a state election code that bars certain people from being on the ballot, and the petitioners argued that code barred Trump. The court received the January 6 Investigation report from Congress into evidence, and held that Trump had participated in insurrection. The court also noted that this was proven by a clear and convincing evidence standard which was much higher than the burden of proof required, which was a preponderance or greater than 50%. However, the court further held that the Disqualification Clause “or hold any office” does not apply to the presidency. This holding is illogical as the purpose of the clause was to bar former Confederates from assuming power and continuing a political rebellion. If a former Confederate couldn’t be a Senator or other politician, it should be even more important that they not become president. You can review the District Court filings here.The Colorado Supreme Court took they case and decided that the clause also includes the office of the president. The written opinion by the court is very thorough and well written. The court specifically stated that they realized the importance of this decision, and the world was watching: We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.
- First the court held that the Colorado election code was the proper mechanism for determining whether Trump should be on the ballot. Colorado law requires that the secretary of state not allow unqualified persons to be on a ballot. Colorado courts would apply this Colorado law. The court even quoted a current Supreme Court Justice on this issue, “as then Judge Gorsuch recognized in Hassan, it is a state’s legitimate interest in protecting the integrity and practical functioning of the political process that permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Obviously, the Colorado court was shooting a shot across the bow of current Supreme Court Justice Gorsuch.This rule makes sense generally as states should protect their elections. For example, Colorado can remove anyone under age 35 years old, as you have to be older to run for president. Colorado can remove someone who wasn’t born in the United States. Colorado can remove anyone who hasn’t been a resident of the United States for 14 years. No one questions the power of Colorado and other states to disqualify these candidates as the federal law prohibits them from holding this office. So, the Colorado Supreme Court points out that 14th Amendment Section 3 bars insurrectionists. This is the real heart of the problem, and I will provide my legal analysis below.
- Second, there does not need to be an act of Congress to trigger the Disqualification Clause as it is self-executing. This just means that if a court finds that it applies that is enough, no further action is required by Congress. This makes sense as the clause says, “no person shall hold office”. That’s it. The clause does say that Congress can vote to remove this disability. It does not say that Congress must vote for it to apply. So, on its face, this appears to be a correct holding. On the other hand, procedurally it is complicated as states would be effectively disqualifying candidates for federal office, not state office. I will discuss this at the end of this paper.
- Third, the court made various other rulings such as this is not a mere political question that courts aren’t allowed to rule on, this is a procedural issue for Colorado ballots. The January 6 Report was admissible. Finally, Trump’s speech wasn’t protected by the First Amendment. The court wrote, “the right of free speech is not absolute at all times and under all circumstances.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). The First Amendment does not protect, for example, true threats, Watts v. United States, 394 U.S. 705, 708 (1969); speech essential to criminal conduct, Packingham v. North Carolina, 582 U.S. 98, 107 (2017); or speech that incites lawless action, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). The court cited these portions of Trump’s January 6 speech as not protected by the 1st Amendment and constituted insurrection:“We’re gathered together in the heart of our nation’s capital for one very,
very basic reason: to save our democracy.” Id. at ¶ 135.
“Republicans are constantly fighting like a boxer with his hands tied
behind his back. It’s like a boxer. And we want to be so nice. We want
to be so respectful of everybody, including bad people. And we’re going
to have to fight much harder.” Id.
“Now, it is up to Congress to confront this egregious assault on our
democracy. And after this, we’re going to walk down, and I’ll be there
with you . . . .” Id.
“[W]e’re going to walk down to the Capitol, and we’re going to cheer on
our brave senators and congressmen and women, and we’re probably
not going to be cheering so much for some of them. Because you’ll never
take back our country with weakness. You have to show strength and
you have to be strong.” Id.
“When you catch somebody in a fraud, you’re allowed to go by very
different rules.” Id.
“This the most corrupt election in the history, maybe of the world. . . .
This is not just a matter of domestic politics—this is a matter of national
“And we fight. We fight like hell. And if you don’t fight like hell, you’re
not going to have a country anymore.” Id.
- Fourth, the court held that the lower court wasn’t wrong in concluding that Trump participated in an insurrection. The court quoted the dictionary definition of insurrection from that time:
A rising against civil or political authority; the open and active
opposition of a number of persons to the execution of law in a city or
state. It is equivalent to SEDITION, except that sedition expresses a
less extensive rising of citizens. It differs from REBELLION, for the
latter expresses a revolt, or an attempt to overthrow the government,
to establish a different one, or to place the country under another
jurisdiction. Noah Webster, An American Dictionary of the English Language 613 (1860);
- Maine Secretary of State– the Secretary of State in Maine declared that Donald Trump be removed from the ballot. Democrat Shenna Bellows was the first Secretary of State in history to bar someone from running for the presidency under the 14th Amendment. She responds by stating, “I am mindful that no secretary of state has ever deprived a candidate of ballot access under Section 3 of the 14th Amendment,” Bellows wrote in her decision. “I am also mindful, however, that no presidential candidate has ever before engaged in an insurrection.” Maine requires that the secretary of state hold a hearing on the qualifications on a candidate if it is challenged. Trump’s candidacy was challenged by two former Republican state senators and some other voters. She held a hearing for a few hours and heard arguments from both sides including Trump attorneys. This decision was paused until the case is heard pending a state appeal. Bellows stated this according to CNN:
Echoing the opinion of the Colorado Supreme Court, Bellows said Trump spread lies of election fraud to “inflame his supporters and direct them to the Capitol to prevent … the peaceful transfer of power.”
“The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match,” Bellows wrote.
She continued, “Principles of free speech do not override the clear command of Section Three of the Fourteenth Amendment, namely that those who orchestrate violence against our government may not wield the levers of its power.”
My legal analysis– First, let me stress, this is just my legal analysis. I will not debate the merits of the claim of insurrection, and I absolutely do not want to get into a political discussion. I just got curious about this legal issue, and a lot of my friends started asking me what I thought based on the law. So, I researched it. Based upon the plain language of this clause, Colorado can determine this issue. There was a five-day trial and the court found that Trump was an insurrectionist. However, determining what is insurrection is not like the other qualifications to be president. Those basic qualifications are found in Article II, Section 1, Clause 5:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
A person is 35 years old, or they are not. There is no opinion. There are no politics at play. Of course, any court can determine that with certainty. Article II addresses qualifications to be president. On the other hand, the Disqualification Clause regarding insurrection is in the 14th Amendment. An otherwise qualified presidential candidate under the constitution may be disqualified by some sort of determination of insurrection under the 14th Amendment. What constitutes “insurrection”? Frankly, it depends who you ask, and where they obtain their news. States will differ in this conclusion, but their decisions will negatively effect voters in other states. If Maine excludes Trump from the ballot, then it would hurt other Republican supporters nationally. Some Republican majority states may continue to attempt and remove Biden from their ballots. Therefore, the federal courts should decide.
In summary, states should continue to make determinations based upon the qualifications for president as laid out in Article II regarding age, etc. States should also be allowed to make disqualification determinations for state offices only. This would allow the above cases like Griffins and Worthy cases to remain good law for the most part. It also makes sense as states should have the right to determine their own state candidates. However, disqualification of candidates for federal offices should only be determined by federal courts. Congress will probably always be too political to do this objectively. The courts are probably the only viable option. Regarding Trumps’ case, we have a presidential election in a few months. Hopefully, the U.S. Supreme Court will provide clarification and guidance in time.