Section 3 of the 14th Amendment
Is it still in force and was there an insurrection to which it applies?
There is a move amongst Democrats and Never Trumpers to claim that Trump participated in, and aided and abetted others in, an insurrection on January 6, 2021. They apply Section 3 of the 14th Amendment which barred participants in the Confederate succession effort from being ever again elected to any public office (unless 2/3 of Congress voted to remove such disability).1
A number of constitutional scholars in their desire to “get Trump” by any means have argued of late that the 14th Amendment requires every election official in the country to keep Trump off of the ballot. No due process needed since it is obvious to all, and confirmed by the January 6 (J6) committee, that Trump is an insurrectionist!
Leading the charge is Laurence Tribe, a former Harvard colleague of Alan Dershowitz (more on him later), whom Dershowitz says makes his interpretations based on who is paying him. (There is apparently no love lost here.) Other progressive scholars, Retired Judge J. Michael Luttig and some Never Trump conservative scholars, have jumped on the bandwagon. State election officials are being urged to be judge and jury, declaring Trump an insurrectionist and denying a place on the ballot in their state.
The events of January 6, including Federal involvement, Trump’s involvement and media coverage, will be the topics of future posts. For now, since President Trump has not been convicted of, or even charged with, insurrection, we will start our discussion by examining whether or not Section 3 of the 14th Amendment is still active.
The pre-eminent Constitutional scholar Alan Dershowitz2 has said that the “get Trump posse” has now come up with a “new way of twisting, distorting and destroying the United States Constitution in order to get Trump. Not satisfied with going after him on absolutely made-up cases … they have now changed tack. The leader of the posse has always been Professor Laurence Tribe, who will misread the Constitution in any possible way, stretch it, distort it, makeup the law as long as he can get Trump.”3
Dershowitz says in another episode of his podcast, The Dershow:
“You can easily imagine somebody from Texas saying what happened to our borders, it’s like an insurrection, it’s like a revolution, these people are coming across the border, they’re bringing fentanyl with them, they are engaged in sex trafficking, they’re engaged in drug abuse, they’re engaged in criminal conduct. It’s an insurrection!
You know insurrection can be used in its technical terms which of course define what happened during the civil war or it can be used in its metaphorical and political and weaponized way which is of course the way Professor Laurence Tribe and Judge Luttig are using it. There’s no insurrection on January 6. And there was no insurrection led by President Donald Trump. It’s absurd to think of it that way.
It would be like saying that Martin Luther King led an insurrection in Alabama or in Mississippi. Or that the folks who engaged in violent demonstrations after the murder of George Floyd engaged in an insurrection. An insurrection is not self-defining.” (Emphasis in original)4
Dershowitz and many other legal scholars view the three Civil War Amendments, the 13th, 14th and 15th, as pertaining to the post-civil war period only. See our recent post "Civil War Amendments" for a brief history of these Amendments to the Constitution that were all adopted in the four years following the end of the Civil War.
Dershowitz says that the clear context of Article 3 of the 14th Amendment involved participants in the Civil War on the Confederate side. Dershowitz says that identifying those participants was easy, since most paraded around in their uniforms and the Sons and Daughters of the Confederacy were popular groups. I would add that there were no concerns about due process in this section because of that easy identification.
Hans van Spakovsky of the Heritage Foundation, another constitutional scholar and former Federal Election Commission member, has also written that the 14th Amendment does not apply5. Von Spakovsky argues both that Section 3 no longer applies due to Congressional action in 18726 and 1898,7 and due to Trump never having been indicted for, much less convicted, of insurrection. Dershowitz also points out the 1872 and 1898 laws addressing amnesty brought closure to the process of dealing with the insurrectionists of the Confederacy. In addition to the amnesty laws passed by Congress, there were Presidential Amnesty Proclamations by both Lincoln8 and Johnson.9
In an article in The Federalist entitled “Why Using The 14th Amendment To Get Trump Won't Hold Up,”10 John Yoo and Robert Delahunty argue against the notion that Section 3 can be applied to the Trump Presidential bid. Their article is subtitled “The effort to hold Trump accountable for his actions should not depend on a warping of our constitutional system.” (This article was written in response to the Law Review treatise written by Baude and Paulsen referenced in the next section).
Arguing the opposite position, Professor Laurence Tribe and retired Judge J. Michael Luttig wrote in The Atlantic that Section 3 can not only be applied to present day insurrections but that it should be used to bar Trump from running for President again.11
Two lawyers, William Baude and Michael Stokes Paulsen, identified by the LA Times as active members of the conservative Federalist Society,12 wrote a legal treatise entitled “The Sweep and Force of Section Three” to be published next year in Vol 172 of the University of Pennsylvania Law Review. They argue that Section 3 remains an enforceable part of the Constitution, that it is self-executing (without the need for action by Congress), and that it “repeals, supersedes, or simply satisfies” any conflict with prior constitutional rules, “includ[ing] the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment.”13 This section of the Constitution seems to be the most powerful section of the entire Constitution, since the authors claim it effortlessly eliminates other key parts of the Constitution.
So far there has been a mixed response by the courts to applying Section 3. A Federal Judge in Florida rejected a lawsuit filed by a Florida Attorney attempting to disqualify Trump from the ballot in Florida.14 Section 3 was tried unsuccessfully against both Marjorie Taylor Greene (R-GA) and Matthew Cawthorne (R-NC).15 On the other hand, a New Mexico County Commissioner and founder of Cowboys for Trump was removed from office by a State Judge after a trespassing conviction for his participation in the January 6 protest.16 A Colorado lawsuit to remove Trump from the ballot is pending in State Court.17 The Secretaries of State in Michigan and other states have talked openly about denying Trump a place on the ballot on their own initiative.
In addition to the Atlantic article, many leftstream news outlets have written articles and editorials supporting the idea that an insurrection occurred on January 6 and as a result President Trump and any other official who supported the protest that day is an insurrectionist (no due process necessary) and automatically barred from holding office in the future.18 Others have presented a more “balanced” view.19
Of course there would need to be an insurrection for anyone to be an insurrectionist. Section 3 has no application unless there are insurrectionists and an insurrection. The weakest part of the argument for barring Trump from the ballot is the simple assertion, with little or no attempt to justify it, that an insurrection actually occurred on January 6 and that Trump participated in this insurrection and/or supported it. While it was clear in 1868 that an insurrection, the four-year Civil War, had occurred, it is far from clear that the events of January 6 constituted an insurrection.
It is interesting that all leftstream media outlets, within hours of the troubles at the Capitol, started using this archaic label. Hmmm. Dozens of non-biased, independent journalists all came up with this seldom used label all at once, while the events of January 6 were still unfolding. Could there have been coordination here? Is Mockingbird still active? We do know that the Trusted News Initiative is.
In contrast to the leftstream media, Julie Kelly, Lara Logan, Darren Beatie (Revolver.news), Tucker Carlson and other independent alternative news outlets examining what happened on January 6 have raised significant questions about how the events of January 6 came about. What was the Federal involvement, especially in the wake of the revelations of significant FBI involvement in the so-called Whitmer kidnapping plot in Michigan just a few months earlier?
The January 6 Committee in the Democrat led house was formed in violation of House rules when the legally appointed Republican members were denied membership on the committee and two “Never Trump” Republicans were appointed by the Democrats in their place. It is no wonder that this partisan committee, which didn’t call for testimony from any dissenting voices, including the Capitol Police Chief,20 came to the conclusions they did. No examination of the planned security measures was included, perhaps because by law the security of the capitol is the responsibility of the Speaker of the House, Nancy Pelosi. The Committee merely took up the “insurrection” cry previously trumpeted by the leftstream media and put an “official” imprimatur on it.
The story of the events of January 6, thousands of hours of video that have been withheld from the press, public and J6 defendants, Federal involvement (was this actually a Fedsurrection?), the inadequate security planning (including the refusal of the National Guard offered by President Trump), Ray Epps, the lack of investigation into the pipe bombs planted at the RNC and DNC headquarters, and many other unanswered questions will be the subject of future posts.
Conclusion
There are two questions that must be addressed before this issue can be resolved. The answer to each question is necessary, but not sufficient, to resolve the issue. We must have definitive answers to both questions.
The first question is whether or not Section 3 of the 14th Amendment is even applicable, with the split being between conservatives (who say no) and Democrats and Never Trumpers (who say yes). I would not attempt to give a definitive opinion on this issue, even if I were a lawyer. I do believe that it will take a ruling by the US Supreme Court to settle this legal issue. With the Presidential Primary season only months away (the Iowa Caucus is on January 15), hopefully the Supreme Court will have an opportunity to rule on this soon.
The second question is whether or not an insurrection has even occurred, with the split being between the conservatives and alternate media journalists (who still have questions) and the Democrats, Never Trumpers and leftstream media who need the answer to be yes to support their attempts to keep Trump from ever being President again.
So if you read or hear anyone opine on the issue, pay close attention to what they say. Read our post "Here's the News" about how to analyze news reports and identify the biases (that all writers have) in the reports.
Do they present evidence, and analysis based on that evidence, concerning whether or not the events of January 6 constitute an insurrection or do they just assume that it was (or wasn’t) an insurrection? This is a very complicated issue that will only be resolved by the sworn testimony of those in Congress and the Federal agencies involved, the release of the video from the Capitol for January 6 and the sworn testimony of eye witnesses.
And do they discuss both views on the applicability of Section 3 and come to a conclusion based on hearing both sides, or do they just state that it applies (or doesn’t apply), giving only one or two sources that support their view?
And be sure to read entire articles because headlines can be misleading. See our recent post "Don't Believe the Headlines" for an analysis of this.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Alan Dershowitz was a law professor at Harvard Law School for almost 50 years from 1965 to 2013. He has written over forty books and as a defense lawyer participated dozens of high-profile cases, defending OJ Simpson, Mike Tyson, Jeffrey Epstein, Julian Assange and President Donald Trump (in his first impeachment trial). He is highly respected as a Constitutional scholar. He is a classic liberal who consistently puts the Constitution over politics (hence his defense of the President in an impeachment trial, despite personally opposing most of Trump’s political positions). He is a devout Jew (which informs his view of the law) and strong supporter of the State of Israel.
The Dershow, August 21, 2023 Disqualifying Trump is unconstitutional: academics won’t debate me. Starting at the beginning of the podcast. Available on Apple Podcasts and other podcast channels
The Dershow September 12, 2023 Has Biden Committed Impeachable Offenses? Starting at 8:15
The Amnesty Act of 1872 was a federal law that reversed most of the penalties imposed on Confederates in the 14th Amendment. Exceptions included Senators and Representatives of the 36th and 37th Congresses, Officers in the judicial, military and naval service of the US, heads of Departments, and foreign ministers of the United States. The affected over 150,000 former Confederate troops.
The few remaining disabilities were removed by another Act of Congress on June 6, 1898: “[T]he disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.” This text of the Act from Footnote 5 in Gerard N. Magliocca’s article Amnesty and Section Three of the Fourteenth Amendment https://conservancy.umn.edu/bitstream/handle/11299/221946/02%20Magliocca.pdf
Lincoln’s Proclamation 108 – Amnesty and Reconciliation was issued December 8, 1863 in the middle of the Civil War. This proclamation offered amnesty to Confederates (with the usual exceptions) who sign an oath of allegiance to the US. It also encouraged the formation of loyal govts in the Confederate States. https://www.presidency.ucsb.edu/documents/proclamation-108-amnesty-and-reconstruction
President Andrew Johnson issued Proclamation 179—Granting Full Pardon and Amnesty for the Offense of Treason Against the United States During the Late Civil War on May 29, 1865 to induce all persons to return to their loyalty to the United States of America. There were exceptions to this amnesty in line with the exceptions in Lincoln’s earlier Proclamation. Excepted individuals were allowed to apply for Presidential pardons. Accepting amnesty required the swearing of an oath of loyalty to the Constitution of the US similar to the one in Lincoln’s Proclamation. https://teachingamericanhistory.org/document/proclamation-of-amnesty-and-reconstruction-2/
https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/
This forthcoming Law Review article is available at https://ssrn.com/abstract=4532751
ABC News published an article promoting Trumps disqualification with no mention of the alternate view https://abcnews.go.com/Politics/14th-amendment-section-3-new-legal-battle-trump/story?id=102547316
Capitol police Chief Steven Sund was willing to testify but never called. He wrote a book entitled “Courage Under Fire: Under Siege and Outnumbered 58 to 1 on January 6” to tell his story. He did an interview with Tucker Carlson when Carlson was still at Fox that Fox never aired. Carlson redid the interview with Sund in Episode 15 of Tucker on Twitter.
Excellent article; Laurence Tribe is one of the most toxic people in the world, vehemently on the wrong side of every issue.