“The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.” Jason Murray, Attorney for Norma Anderson, an objector to Donald Trump's listing on the Colorado Presidential primary ballot.
Samuel Issacharoff finds that the 14th Amendment section 3 is a mechanism
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.
For centuries, courts in the United States and Britain have applied the Rule in Heydon’s Case, which instructs that the interpretation of law must address the mischief that the promulgators of the law sought to redress. This does not mean that laws are intended for the period of their enactment alone, only that the circumstances of enactment matter in defining the boundaries of law’s application, particularly for very old laws. In this sense, Section 3 resembles and anticipates the lustration laws that went into effect in Germany after WW II and eastern Europe after 1989. The simple aim of these laws is to ensure that democratic openness not be allowed to serve as the invitation to recreate the ancien regime through the reestablished electoral process. As I wrote in my book Fragile Democracies, this unifies the impulse between Section 3 and the European commitment to what is termed “militant democracy” (pp. 26-31). In each setting, the terms of the prohibition on the old order returning is context-driven and is overseen by different institutional mechanisms, generally by judicial review of the process of exclusion.
The problem now is that, more than a century and a half later, it is far from clear what it means to have engaged in insurrection or rebellion, or to have given comfort to enemies, and what weight should be assigned to different formulations of oaths of office.
Better put, it was patently clear what all this meant when drafted. Indeed, it was so clear that Section 3 makes no effort to define the terms or to contemplate how they should be enforced. Rather, Section 3 adopts the concept of disqualification for insurrection from an earlier wartime statute passed in 1862 that continues more-or-less intact to the present day as the Insurrection Act. Notably this is a criminal statute which imposes the heightened levels of proof of the criminal law, as well as the extraordinary procedural protections that attach to the process of indictment and conviction. On those occasions that Congress did specifically invoke Section 3, as with an 1870 voting rights statute, the disqualification clause was again tethered to the criminal laws to punish anyone who knowingly held an office for which he was not eligible under the insurrection clause (Blackman and Tillman: 2021). Any such criminal prosecution is a formidable barrier, as evidenced by the fact that Justice Department has not charged anyone with insurrection for the events of January 6 (Charlie Savage, How the Crime of Seditious Conspiracy Is Different From Insurrection and Treason, N.Y. Times, May 25, 2023)
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