Old Constitutional Provisions and Presidential Selection: The folly of exhuming Section 3 of the 14th Amendment

Old Constitutional Provisions and Presidential Selection: The folly of exhuming Section 3 of the 14th Amendment

By Samuel Issacharoff (NYU Law)

The moves to disqualify former President Donald Trump in Colorado and Maine will doubtless force the Supreme Court to confront the obscure Section 3 of the 14th Amendment. In his petition for certiorari, and in particular in Part II of the argument section of the brief, Trump points to, but ultimately shies away from, a disturbing question of constitutional design. The vexing question is what becomes of a constitutional provision that lives beyond its historical context with nothing in either legislation or judicial interpretation to keep it up to date.

Section 3 of the 14th amendment, by its text, limits the application of the disqualification to only those who had previously taken an oath as an officeholder of the United States. Leaving aside the interpretive debate on whether the President and Vice President are in fact “officers of the United States” as that term has been understood, the prohibition is an odd one outside of the obvious context of the Civil War. Why would any country forbid election to high office for individuals who have engaged in insurrection or aiding national enemies, but only if they had previously been a member of government? Why prohibit an insurrectionist who had previously served one term in a state legislature from subsequent office-holding, but allow the election of a fellow insurrectionist who may have committed even more egregious acts but merely had been a county commissioner or not held office in the past?

No doubt formal arguments can be constructed around the nature of the oath. I suspect, however, that the real reason follows from the historical fact that the political and officer corps of the Confederacy were drawn from governing officials who predated secession and then emerged as drivers of the rebellion. Similarly, other countries have circumscribed the political ambition of individuals with links to government power in the service of antidemocratic aims. Following World War II, West Germany’s constitutional authority to ban political parties was meaningfully invoked only twice; once to bar former Nazis from recreating themselves after the war, and once to ban the Communist Party from serving as the propagandist for East Germany. Context matters.