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Section 3 of the Fourteenth Amendment

My initial view that Trump was covered by Section 3 of the Fourteenth Amendment was formed because I believed then, and do still now believe, that the events of January 6, 2021 were an “insurrection.”  Daniel Webster’s 1st edition of his Dictionary of American English, which had been published in 1828, and would have been authoritative to the Framers’ of the Fourteenth Amendment, defines the word “insurrection” as follows:

INSURREC’TIONnoun [Latin insurgo; in and surgo, to rise.]

  1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a 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. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy.insurrection is however used with such latitude as to comprehend either sedition or rebellion.

It is found that this city of old time hath made insurrection against kings, and that rebellion and sedition have been made therein. Ezra 4:19.

  1. A rising in mass to oppose an enemy. [Little Used.]”

I take this to mean that an “insurrection” is more than a “riot” or a “sedition” or a “mutiny”, but less than a “rebellion”.  Specifically, I think an “insurrection” is a “riot” for the purpose of changing the outcome of “an important political decision or event.”  I thus tend to think that what happened on January 6th, 2001 was technically an “insurrection.”

I also think that Donald Trump gave “aid or comfort” to the enemies of the Constitution that day because he watched the whole thing unfold, along with cries of “Hang Mike Pence”, on national television and never once, despite his duty to take care that the laws be faithfully executed, sent out a Tweet calling on the rioters to stop the violence nor did he call out the National Guard, which it was his duty to do.

I changed my mind and concluded that Trump had a right to be on the ballot once former Attorney General Michael Mukasey pointed out in an excellent op-ed in the Wall Street Journal that Section 3 only disqualifies oath-breakers from being “a Senator or Representative in Congress or [an] elector of President and Vice President or [a holder of] any office, civil or military, under the United States,” or “a member of any State legislature [or] an executive or judicial officer of any State.”  Oath-breakers are not disqualified from running for or even serving as President, so long as the presidential electors who elect the President are not oath-breakers.  I also do not believe the President is an “Officer of the United States” because the Commissions Clause says that “[The President shall” i.e. must “commission all the Officers of the United States”, and there is no practice, either before or after, the adoption of the Fourteenth Amendment of Presidents commissioning themselves.  Indeed, the whole idea of that is absurd.

For all of these reasons, I concluded Section 3 of the Fourteenth Amendment does not require or allow Trump being kept off any presidential primary or general election ballots.

Two days ago, my friend Kurt Lash sent me a wonderful draft law review article, which establishes beyond a shadow of a doubt that originally the Framers of Section 3 had Presidential oath-breakers in the enumeration of people disqualified from holding office, but that that language was deliberately taken out of the final draft of Section 3 to appease conservatives and on the assumption that presidential oath-breakers being disqualified from being “electors of the President and Vice President” was sufficient protection against “insurrectionist Presidents”.  The link to Kurt Lash’s excellent draft law review article is here:   https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838                                                                                                    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838

Donald Trump had better be very careful in picking the presidential electors who will vote for him if he carries a State in 2024.  Trump presidential electors who engaged in the January 6, 2001 insurrection are barred from being on the ballot and their votes  should not be and will not be counted.

I have tried throughout the discussion of this matter to be law-abiding and to be a strict a textualist. I will add that, prudentially, keeping Trump off the ballot, and infuriating his die-hard supporters, would be much worse for American democracy, anyway, than would be another term of Joe Biden as Michael McConnell pointed out in a post on this blog in response to my initial post.


October 2023