The Fourteenth Amendment is considered the Second American Revolution. Historian Jack Rakove believes “None of the constitutional provisions adopted since 1789 has done more to shape and define the concept of ‘a more perfect Union’ than Section I.” It defines citizenship and makes all former slaves’ citizens. It prohibits states from making laws that “abridge the privileges and immunities of citizens of the United States.”
President Andrew Johnson pardoned so many rebels that Republicans were dead set against permitting the men who had seceded and taken up arms against the United States from returning to power in the national or southern state governments. A proposal would have disenfranchised voters in the Southern states. Instead, Senator Jacob Howard of Michigan sponsored Section III, which prohibited those who had “previously taken an oath … to support the Constitution of the United States from being able to hold office if they had engaged in insurrection or rebellion, or given aid or comfort to the enemies thereof.” Senator John Henderson said, “this is an act fixing the qualifications of officers and not an act for the punishment of crime.”
Now Section III is being used to disqualify Donald Trump from ballots in Colorado and Maine and suits are pending in other states. Many pundits have voiced opinions on whether Section III applies. Men who wrote this section left an extensive record about their intent. Senator Henderson said “we don’t want to limit this to the Civil War. We want to include any insurrections.”
There is also some agreement between both the right and the left that Section III does apply and Trump should be disqualified. William Baude and Michael Stokes Paulsen, law professors and members of the conservative Federalist Society, wrote a 126-page paper in August concluding it does apply. According to their University of Pennsylvania Law Review article, “Overall, it seems to us quite clear that the specific events leading up to and culminating in the January 6, 2021 attack qualifies as an insurrection within the meaning of Section Three: concerted, forcible resistance to the authority of the government to execute the laws in at least some significant respect.” They also argued that no criminal conviction is required and “that if these constitutional duties are taken seriously, there is a list of candidates and officials who must face judgment under Section III. Former president Donald Trump is at the top of that list, but he is not the end of it.”
Michael Luttig, a conservative, retired federal judge, and Lawrence H. Tribe wrote an article for The Atlantic that references Baude and Paulsen’s article and agree that the clause is self-executing. “The disqualification clause operates independently of any such criminal proceedings and, indeed also independently of impeachment proceedings and of congressional legislation. ... Holding Trump accountable — and disqualifying him from future office — would not be a partisan act, but one needed to preserve the republic.” Many constitutional law experts have taken this position, including Professor Mark A. Graber in Punish Treason, Reward Loyalty.
Ohio has disqualified candidates from holding office. See STATE EX REL. CUNNANE v. LAROSE (2022), where Ohio’s Secretary of State barred candidates from appearing on a ballot. Senator John Henderson declared, “The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.” We should demand LaRose follow the Constitution, take the advice of members of the Federalist Society, and remove Trump from the Ohio ballot. The Republic’s preservation requires it.
David Madden is a retired trial lawyer, author of The Constitution and American Racism, former Inf. Plt. Ldr. and LTC JAG Corps and spokesman for the ACLU.
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