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).

Far from this criminal context, Section 3 is now invoked by individual states and with far less civil protections. The current invocation of Section 3 leads to the split decision to bar Trump in the Colorado Supreme Court, and ultimately to the unilateral action by the Maine Secretary of State to decide the removal of the leading Republican candidate, with only a few weeks until presidential selection begins nationally (though she suspended the effect of her decision until the Superior Court rules).

One escape route for the Supreme Court might be to read Section 3 into the context of the entirety of the 14th amendment and insist on congressional action pursuant to Section 5 of the amendment. In much the same way as the guarantees of due process and equal protection require enabling legislation under 42 U.S.C. Sec. 1983 to be enforced in court by individuals claiming a violation of their rights, so too might the designated class of disqualified individuals under Section 3 require Congress to act in some fashion. Certainly, Congress acted to fund and prosecute the military efforts of the Civil War, and selectively referenced Section 3 during the Reconstruction period, giving some sense of institutional grounding for the prohibition of the ex-Confederates. By contrast, Congress has twice acted to remove the disqualification for office from individuals covered by Section 3, once in 1872 and once in 1898 (Baude and Paulsen: 2024).

While this gives some textual grounding to the argument advanced in the Colorado Supreme Court dissents and in the Trump cert petition of the need for some enabling legislation, the point is more basic and more fundamental than one of textual interpretation. These kinds of laws cannot be allowed to hang around as an invitation to mischief once the historical moment has passed. In Poland, for example, the lustration of those who commanded in the Soviet days later turned into a political instrument of the Kaczyński government which could claim that any contemporary political opponent whose name happened to be found in a police file was a collaborator who should be politically excluded. Similarly in Latvia, a law to accelerate the post-1989 break from Soviet occupation required officeholders to speak Latvian. What was sensible in 1989 becomes highly problematic when re-invoked today to threaten non-Latvian speakers with expulsion from the country, including those born in Latvia and who have known no other home.

The Trump presidential ballot exclusions may be contrasted with the Brazilian response to their January 8, 2023 uprising, when supporters of defeated president Jair Bolsonaro ransacked the seats of government in Brasilia. Brazil had a specialized tribunal that could quickly adjudge the responsibility of Bolsonaro personally, the same tribunal that had previously ordered the jailing of now President Lula da Silva for over a year and a half. When orderly processes resulted in Bolsonaro being banned from running for office for 8 years for his role in the disturbances, no significant political disruption ensued.

Unfortunately, Section 3 has no corresponding institutional pathway for systematically evaluating whether disqualification should be imposed on any individual. Left to local administration, with limited fact-finding by a single judge or state official, the risk is that Trump’s exclusion in Maine will beget a political tit-for-tat in which Biden is in turn excluded in a red state, or candidates of either party are pulled from the ballot in future. Down that path lies nothing good for democracy. Section 5 of the 14th Amendment might offer some reason to think that disqualification necessitates congressional action, unlike the requirement that the president be 35 years old, which appears in Article II, a provision already subject to institutional checks by the Congress and the Electoral College. The Supreme Court should be understandably leery of engaging in institutional backfilling. There’s an opportunity here for a unanimous Court decision that puts such powerful tools in the hands of the people’s representatives at the national level. If there’s not sufficient political will to revivify Section 3 for present day purposes, then it falls to the Court to create an interim stopgap in an already fraught election cycle.

The author thanks Keton Kakkar for assistance. The argument is the author’s alone.

Photo credit: “The Surrender at Appomattox” – Mosaic Mural by Allyn Cox, 1965 at the General Grant National Memorial – US National Park Service