Published by The Lawfare Institute
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In recent days, several scholars and lawmakers have suggested that Section 3 of the 14th Amendment might be used to bar Donald Trump and some of his allies from ever holding federal or state office again. The Section 3 route is a plausible alternative, or potentially a supplement, to the more traditional route for sanctioning state criminals: impeachment. But a number of unresolved questions remain regarding Section 3’s scope as well as the process by which the lifetime ban can be invoked. Here, I flag the most important questions, answer some of them, and offer tentative guidance to lawyers and lawmakers seeking to apply Section 3 to individuals who participated in or abetted the Jan. 6 assault on the Capitol.
Triggering Offices and Banned Offices
The text of Section 3 leaves lots of questions open, but it will be helpful to have it close at hand:
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.
The author of the amendment was Sen. Jacob Howard, a Michigan Republican, who introduced the language after the Senate rejected an earlier proposal to bar ex-Confederates from voting until 1870. The effect of the amendment is that anyone who (a) previously held or currently occupies a triggering office in which she took an oath to support the U.S. Constitution and then (b) engages in covered conduct (that is, insurrection, rebellion, or giving aid or comfort to America’s enemies) will be (c) disqualified for life from holding any banned office, unless Congress by a vote of two-thirds allows an exemption.
The text is reasonably clear as to Section 3’s triggering offices: The person in question must be or have served as a member of Congress, an officer of the United States, a member of any state legislature, or an executive or judicial officer of any state. Thus, most members of the mob that descended on the Capitol on Jan. 6 are not subject to Section 3: Even if they engaged in insurrection or rebellion, they haven’t served in one of the triggering offices.
Importantly, it doesn’t matter whether an individual holds a triggering office at the same time that she engages in insurrection or rebellion. During the debate over the amendment in the 39th Congress, Sen. Thomas Hendricks, an Indiana Democrat and future vice president, proposed limiting Section 3’s scope to individuals who engaged in covered conduct during their term in a triggering office, but the Senate rejected Hendricks’s proposal by an 8-34 vote.
To see how the triggering-office provision works, consider the cases of Republican Rep. Mo Brooks, former New York City Mayor Rudy Giuliani and President Trump’s eldest son, Donald Trump Jr.—all of whom are reportedly under investigation by the District of Columbia attorney general for their roles in the Jan. 6 assault. Section 3 clearly applies to Brooks if he engaged in covered conduct: He previously served in the Alabama legislature, one triggering office; he is currently a member of Congress, another triggering office; and he took an oath to support the U.S. Constitution in both capacities. Likewise for Giuliani: Mayor is a triggering office, and Giuliani also served in two other triggering offices—U.S. associate attorney general and U.S. attorney for the Southern District of New York. Holders of all of these offices take oaths to support the U.S. Constitution.
By contrast, Donald Trump Jr. is not subject to Section 3’s lifetime ban because—even if he did engage in insurrection or rebellion—he hasn’t served in a triggering office. The senior Donald Trump is a more interesting case. Seth Barrett Tillman has suggested that the president is not an “officer of the United States,” in which case the presidency would not be a triggering office. And unlike every previous president since Washington, Trump didn’t hold another federal or state office prior to entering the White House. But the framers of the 14th Amendment clearly thought that Section 3 covered the president. Indeed, this issue came up during the floor debate, and Rep. Justin Morrill, a Vermont Republican and member of the House leadership, assured his colleagues that “office under the United States” included the presidency. As Gerard Magliocca nicely puts it in an impressive and timely new history of Section 3, “Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President.”
The list of banned offices largely—but not entirely—tracks the list of triggering offices. The banned offices are member of Congress, member of the Electoral College, civil or military officer of the United States, and officer of any state. Thus, member of the Electoral College is explicitly listed as a banned office but not a triggering office. And member of the state legislature is explicitly listed as a triggering office but not a banned office.
One interesting question is whether Section 3’s lifetime ban applies to former members of the Electoral College who then engage in covered conduct. Members of the Electoral College aren’t federal officers, and they aren’t executive or judicial officers of a state. As far as I know, no former member of the Electoral College participated in the Jan. 6 assault, so this question is purely academic. Another question that is far from academic is whether the position of state legislator is a banned office. A number of state lawmakers attended the Jan. 6 “Stop the Steal” rally at the Capitol, including members of the Arizona, Virginia and West Virginia state legislatures. State legislator is explicitly a triggering office, so if it’s also a banned office and these individuals engaged in covered conduct, then Section 3 would require them to relinquish their positions.
In an informative new paper on Section 3, attorney Myles Lynch suggests that state legislator is not a banned office: “While one may argue that state legislators could be included as civil officers of the states and could therefore be disqualified from holding said office,” Lynch writes, “the fact that Congresspeople are not included as officers of the United States counsels against interpreting as such.” My own view is that state legislator probably is a banned office, for four reasons. First, the dictionary definition of the word “office”—in the 19th century, as now—includes legislative office. Second, the fact that the framers of the 14th Amendment categorized member of Congress and federal civil office as banned offices does not necessarily mean that they understood legislators not to be civil officers. There is no ironclad rule that drafters of constitutional amendments or other legal enactments must use the minimum number of possible words to express a thought. As the Supreme Court has emphasized, the canon against surplusage “is not an absolute rule.”
Third, the First Ku Klux Klan Act, passed in 1870 and discussed below, set forth a disqualification procedure that applied “whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution.” If state legislator weren’t a banned office, there would be no need to include a state-legislator exception. (The exception likely derives from the fact that state legislatures—like the houses of Congress—have their own exclusion and expulsion procedures on which the drafters of the First Ku Klux Klan Act chose not to tread.)
Fourth and finally, it is hard to imagine any rationale for excluding state legislator from the category of banned offices while including, for example, city clerk or dogcatcher. As Sen. Lyman Trumbull, an Illinois Republican and supporter of the 14th Amendment, explained during the Senate debate, “the object of this provision is to place these rebellious States in the hands of loyal men.” Allowing ex-rebels to dominate the state legislature would seem to be at odds with that object.
Recall again that under Section 3, an individual who holds a triggering office and then engages in covered conduct cannot occupy a banned office afterward. But what conduct does Section 3 cover? It’s helpful to distinguish between two types of covered conduct: (a) engaging in insurrection or rebellion against the United States, and (b) giving aid or comfort to America’s enemies.
Section 3 does not specify what it means to “engage” in insurrection or rebellion, but subsequent case law sheds some light on that phrase. In United States v. Powell, a U.S. district attorney in North Carolina sought to disqualify a state official who had furnished a substitute for himself in order to avoid being conscripted into the Confederate army. The court in Powell instructed the jury that “the word ‘engage’ implies, and was intended to imply, a voluntary effort to assist the Insurrection or Rebellion, and to bring it to a successful termination.” An individual can engage in insurrection or rebellion without taking up arms herself.
A harder question is whether “incitement of insurrection”—the charge against President Trump in the single article of impeachment approved on Jan. 13—amounts to “engaging in insurrection.” For example, an 1862 law makes it a federal felony to “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof.” Act of July 17, 1862, ch. CXCV, § 2 (codified as amended at 18 U.S.C. § 2383). The separate listing of “incite” and “engage” might suggest that Congress in the 1860s understood these two terms as distinct. But again, there is no ironclad rule against surplusage, and the 1862 statute may have included extra verbiage that the 14th Amendment later streamlined. Moreover, other sources suggest that incitement constitutes engagement. In 1894, for example, a federal district court in Illinois held that “every person who knowingly incites, aids, or abets [an insurrection], no matter what his motives may be, is likewise an insurgent.”
Another question concerns the scope of the words “insurrection or rebellion.” Although the framers of the 14th Amendment clearly had in mind the Confederacy, they pointedly decided not to limit the language to that particular “insurrection or rebellion.” What they did not clarify is what causes other than the Confederacy would fall within the phrase’s ambit.
Dictionary definitions provide minimal guidance. Webster’s 1828 American Dictionary of the English Language defined “insurrection” as “the open and active opposition of a number of persons to the execution of a law in a city or state.” The distinction between an “insurrection” and a “rebellion,” according to the 1828 Webster’s version, is that an insurrection “may be a rising in opposition to a particular act or law, without a design to renounce wholly all subjection to the government,” whereas a rebellion “expresses an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction.” But the Webster’s definition of “insurrection” seems implausibly broad for Section 3 purposes. If any organized opposition to a particular government act or law constitutes “insurrection,” then civil disobedience would seem to fall within Section 3’s scope. Of course, no one seriously thinks that Section 3 ought to have applied, for example, to the late and great Rep. John Lewis, who was arrested five times for civil disobedience at protests while a member of Congress.
Another unattractive possibility is that the definition of “insurrection” in Section 3 tracks the definition of “insurrection” in the Insurrection Act of 1807, which authorizes the president to call forth the militia for the purposes of suppressing insurrection. As the legal scholar and writer Hawa Allan notes, an “insurrection” under the 1807 act “is effectively what the executive proclaims it to be.” But the framers of the 14th Amendment clearly did not want to leave the definition of “insurrection” to the president. Recall that a vote of two-thirds of each house is required to lift the lifetime bar, with no presidential role in the process. It would subvert the structure of Section 3 if the president could exempt an individual from its scope simply by refusing to recognize an insurrection as such.
Another definition of “insurrection” comes from insurance law, where the term is sometimes used in force majeure-type clauses in policies. According to the U.S. Court of Appeals for the Second Circuit, “the word insurrection means  a violent uprising by a group or movement  acting for the specific purpose of overthrowing the constituted government and seizing its powers” (internal quotation marks omitted). A case in the U.S. Court of Appeals for the First Circuit elaborates that an insurrection “may be spoken of as a ‘rebellion’” once “the insurgents come into de facto control of a definite region of the country,” and “will be dignified by the characterization of a ‘revolution’” if it “proceeds to the attainment of its objective.”
Applying a 20th century insurance-law definition of “insurrection” to a constitutional amendment adopted in 1868 is, admittedly, anachronistic. That said, the insurance definition has a number of normative advantages over the alternatives. It wouldn’t ensnare individuals engaged in run-of-the-mill civil disobedience, and it wouldn’t turn upon presidential say-so. The proviso that an insurrection must be “violent” also would mitigate the risk that Section 3 might be invoked routinely to disqualify political minorities.
The insurance definition of insurrection envisions an attempt to overthrow the constituted government. Trump and his supporters engaged in an effort to keep the constituted government in power. Arguably, the insurance definition of insurrection thus does not capture a “self-coup” like the one we witnessed on Jan. 6. I think that’s a bad argument, though. Despite Trump’s own attitude of l’état, c’est moi, the constituted government in the United States is not any single individual but the constellation of institutions that facilitate the lawful exercise and peaceful transfer of power. A sitting president who seeks to subvert those institutions through violence is no less an insurrectionist than a lower-level official or private citizen who seeks to do the same. But of course, it’s impossible to point to a precise precedent here, because no previous sitting president has engaged in such a blatant attempt to throw out an election result.
The second category of Section 3-covered conduct—giving aid or comfort to America’s enemies—raises another set of interpretive questions. The “aid or comfort” language tracks the treason statute, 18 U.S.C. § 2381, and treason cases provide some clues as to the phrase’s scope. For example, harboring an enemy spy or supplying an enemy spy with funds is “giving aid and comfort,” but simply having one’s “heart on the side of the enemy” does not amount to aid or comfort under the treason statute absent some overt act.
Members of the 40th Congress—the one immediately after the Congress that drafted the 14th Amendment—adopted a broader definition of “aid or comfort.” According to a House committee report regarding a Kentucky congressman’s eligibility for office, “‘aid and comfort’ may be given to an enemy by words of encouragement, or the expression of an opinion, from one occupying an influential position.” In that case, John D. Young—while holding the triggering office of county judge—had allegedly said that the South had “just cause for the revolution” and that Abraham Lincoln “ought to be impeached and hung as high as Haman.” Young’s ultimate exclusion did not rest on words alone—he also allegedly fed and armed Confederate rebels and assisted in the capture of a Union soldier—but fellow Kentuckian John Young Brown was excluded based only on the expression of an opinion. It was, to be sure, a particularly noxious expression: Brown, during his first term in Congress in 1861, had written a letter to a local newspaper vowing to resist the Union Army “unto the death” and adding that anyone from Kentucky who volunteers for the Union Army ought to be “shot down before he leaves the State.”
A more dubious precedent regarding the scope of Section 3-covered conduct comes from the case of Victor Berger, a socialist from Wisconsin who won a seat in Congress in 1910 and then again in 1918. Berger’s offense was that after his first term in Congress, he spoke out stridently against American involvement in World War I. Citing the Young and Smith cases, the House voted 311-1 to exclude Berger for giving aid and comfort to America’s enemies. But the House seated Berger four years later after he was reelected and the Supreme Court vacated his conviction under the Espionage Act. And most people would likely agree that the 1919 exclusion of Berger from Congress—like the expulsion of socialists from the New York State Assembly a year later—was a mistake, an example of Red Scare-era excesses rather than a precedent to be followed. The Berger case illustrates the dangers of construing Section 3 too broadly.
A final scope-related question concerns the meaning of the word “enemies.” In the 1860s and today, the definition of “enemies” for treason purposes was and is very narrow. As Justice Stephen Field wrote in 1863 while riding circuit, the term “treason” in the Constitution “applies only to the subjects of a foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government.” But this definition would seem to exclude the Confederacy, since the framers of the 14th Amendment would not have considered Southerners to be “subjects of a foreign power in a state of open hostility.” And the amendment’s framers had the Confederacy front of mind, which is a compelling reason to read “enemies” as including all insurrectionists and rebels captured by the first conduct category.
Applying Section 3 to Trump and His Supporters
In applying Section 3 to Trump and his allies, the hardest question concerns the covered-conduct prong. Did Trump and/or his supporters engage in insurrection or rebellion—or give aid or comfort to America’s enemies—in their efforts to overturn the 2020 election result? Even for those like me who believe that Trump’s postelection conduct is very clearly impeachable, the question of whether Trump himself engaged in Section 3-covered conduct is not so straightforward.
Let’s start with the easiest cases. Derrick Evans, a freshman member of the West Virginia House of Delegates who forced his way into the Capitol on Jan. 6, is perhaps the starkest example of a holder of a triggering office who engaged in Section 3-covered conduct. Evans was part of an organized mob that sought to physically intimidate the vice president and Congress into replacing Biden with Trump. He even memorialized his role in the riot with a video that he uploaded to, but subsequently deleted from, his Facebook page. Evans also clearly satisfies the triggering-office prong: He took an oath to support the U.S. Constitution when he was sworn in as a West Virginia delegate on Dec. 14. Evans preempted any immediate application of Section 3 when he resigned on Jan. 9, but Section 3 probably ought to preclude him from holding a banned office again.
The cases of Reps. Andy Biggs, Mo Brooks and Paul Gosar are not as clear-cut, in part because it’s still not clear exactly what these congressmen did. “Stop the Steal” organizer Ali Alexander has claimed that he and the three congressmen “schemed up putting maximum pressure on Congress while they were voting.” Democratic Rep. Mikie Sherrill says she saw several Republican colleagues giving what she characterized as “reconnaissance” tours of the Capitol to protest leaders on Jan. 5, though she hasn’t named names. If Biggs, Brooks and Gosar actually orchestrated a violent attack on Congress from inside, then they too would seem to fall within Section 3’s ambit.
The case against Trump depends heavily on the definitions of “engage” and “insurrection.” Trump’s postelection calls to Georgia officials—including his request that Secretary of State Brad Raffensperger “find 11,780 votes”—may well amount to criminal election fraud, but they were not part of a violent uprising. Under the insurance definition of “insurrection,” these actions probably don’t count. Trump’s tweet inviting supporters to a “wild” protest outside the Capitol on Jan. 6—as well as his exhortation to the crowd on Jan. 6 to “fight like hell”—come closer to incitement of a violent uprising. Applying the 40th Congress’s standards, these appear to be “words of encouragement” from “one occupying an influential position,” though Trump’s words are notably not as incendiary as John D. Young’s call to hang Abraham Lincoln or John Young Brown’s vow that Union-supporting Kentuckians would be “shot down.”
The case that Trump engaged in insurrection or gave aid to insurrectionists derives greater force from his behavior after the violence was underway. Even after Trump loyalists—inspired by Trump’s lies and exhortations—had breached the Capitol building, Trump continued to lobby Senate Republicans to block the certification of results, thereby working “to bring [the insurrection] to a successful termination” under the Powell standard. And even while the vice president was in hiding from a mob chanting “Hang Mike Pence,” Trump tweeted that Pence “didn’t have the courage to do what should have been done to protect our Country.” These are bad facts for Trump—certainly stronger evidence of insurrectionism than, say, socialist Victor Berger’s opposition to the First World War, though still short of a smoking gun like John D. Young’s assistance in the capture of a Union soldier or John Young Brown’s call for Kentucky Unionists to be shot.
The case against Trump, Biggs, Brooks and Gosar is substantially stronger than the case against other congressional Republicans who backed efforts to overturn the 2020 election. Opprobrium should attach to the 126 House Republicans who filed a frivolous amicus brief backing Texas’s unsuccessful effort to have the Supreme Court block Georgia, Michigan, Pennsylvania and Wisconsin from certifying their election results—but frivolous litigation is not insurrection. Likewise, it was irresponsible for 139 House members and eight senators to support objections to the Electoral College vote count following the Jan. 6 attack. Objecting to the Electoral College vote count, though, is still not insurrection, even after a free and fair election. A number of House Democrats objected to the certification of Trump’s 2016 win in order to draw attention to voter disenfranchisement and Russian election interference, but no one seriously thinks those House Democrats engaged in Section 3-covered conduct—though some Trump supporters, in an exercise in whataboutism, have sought to draw a false equivalence between the House Democrats’ symbolic gesture four years ago and Trump’s genuine effort to undo the voters’ decision this time.
Democratic Sen. Joe Manchin, hardly a firebrand, has suggested that two of his Republican colleagues—Ted Cruz and Josh Hawley—may have engaged in Section 3-covered conduct, but that argument seems to me quite strained. And a new video suggests that some of the insurrectionists might have listened at least to Cruz: “I think Cruz would want us to do this,” one mob member says on the tape. But failing to stop an insurrection is not the same as engaging in one. And while Cruz and Hawley are morally culpable for the insurrection by virtue of their complicity in Trump’s big lie, neither has been accused of conspiring with the mob leaders. Unlike Trump, moreover, neither Cruz nor Hawley—to my knowledge—used bellicose language that could be construed as a call to arms. But of course, it’s possible that new incriminating or exonerating evidence will emerge in the coming days, weeks and months that alters these tentative conclusions.
Fortunately, I’m not the one who ultimately will have to decide whether Trump or his supporters engaged in Section 3-covered conduct. But it’s less clear who the ultimate deciders are. In answering the “who decides?” question, it will be helpful to distinguish among three categories of banned offices: Congress, the presidency and everything else.
Article I, Section 5, Clause 1 of the Constitution makes each house of Congress the judge of the qualifications of its members. A chamber can exclude a member at the outset by a simple majority vote. The Supreme Court held in Powell v. McCormack that in “in judging the qualifications of its members,” each house “is limited to the standing qualifications prescribed in the Constitution.” The Powell court, though, noted that Section 3 of the 14th Amendment is arguably “no less a ‘qualification’” than, for example, the rule that a House member must be at least 25 years of age and a senator must be at least 30. Expulsion of a sitting member for “disorderly behavior” requires a two-thirds vote.
The two-thirds threshold for expulsion makes it quite unlikely that Biggs, Brooks or Gosar will be ousted in the current Congress. That would require 67 Republicans to join all Democrats in voting for expulsion. But if any of those three is reelected in 2022—which seems likely, as all three are in safely Republican seats—then exclusion by simple majority at the outset of the next Congress becomes somewhat more plausible. To be sure, there might be an argument that even if one or more of these members of Congress did engage in Section 3-covered conduct, it would be anti-democratic for a simple majority of the House to override the choices of voters in their districts. But arguably an even graver threat to democracy is a scenario in which members of Congress can orchestrate violent attacks on their colleagues with impunity.
The procedures and prospects for exclusion and expulsion are basically the same on the Senate side. Ousting Cruz or Hawley would require 17 Republicans to join all 50 Democrats—an unlikely scenario. Both men are up for reelection in 2024, and so there might be some discussion of exclusion by simple majority vote then. Again, though, I think the substantive case that Cruz or Hawley engaged in Section 3-covered conduct remains quite weak.
Banning an insurrectionist from the presidency is not so straightforward. If, say, Trump runs again in 2024, Section 3 challenges will likely arise at the primary stage. For example, New York law provides that a candidate shall not be listed on a primary election ballot if she will not meet the constitutional qualifications for the sought-after position. If Trump sought to have his name listed on the Republican primary ballot, any registered Republican in the state could object, and the state Board of Elections would hear the challenge. Other states have similar laws that allow for primary-stage challenges to candidate qualifications. Indeed, even if Trump does not run, other Republican White House aspirants—perhaps Cruz and Hawley—may also face challenges on grounds that they are disqualified from the presidency by virtue of Section 3-covered conduct.
Whatever one thinks of the merits of these challenges, it’s likely to be a hot mess. Perhaps dozens of lawsuits could pop up in state and federal courts across the country over whether Trump (or Cruz or Hawley) can be on the ballot. Unless every state supreme court and every federal court of appeals rules one way or the other, the issue is likely to reach the Supreme Court. While the justices waved away Trump’s challenges to the 2020 election result, it’s doubtful that they can manage the same hands-off approach to the Section 3 ballot access issue in 2024.
For state-level officials, disqualification procedures vary on a state-by-state basis; Lynch’s paper provides a clear overview of the procedures in one case-study state, Indiana. In some states, the common-law writ of quo warranto survives; a quo warranto action allows a plaintiff or petitioner to challenge an official’s claim to the office she holds. An intriguing possibility raised by Lynch is that the District of Columbia quo warranto statute, D.C. Code § 16-3501, might be used by the U.S. attorney general or private parties to initiate disqualification proceedings against federal officers in D.C. federal district court. But since President Biden is rather unlikely to appoint Trump or anyone else implicated in the Jan. 6 assault to federal office, this possibility remains remote for now.
The First Ku Klux Klan Act, noted above, provided a more streamlined procedure for enforcing Section 3. Under that statute, whenever anyone held an office other than a member of Congress or state legislator in violation of Section 3, it was the duty of the U.S. district attorney—the predecessor to the U.S. attorney—in the relevant district to bring a quo warranto action in federal court. Any action brought under that statute jumped to the front of the court’s docket. The procedure didn’t get much use, since Congress in 1872 passed a blanket amnesty lifting the Section 3 ban for all ex-Confederates who had held state-level triggering offices. But the statute remained on the books until 1948, when it was repealed as part of a larger rewrite of the federal judicial code.
Congress ought to resuscitate the law today. Call this the Fourth Ku Klux Klan Act, as Congress passed two others in the intervening years. It ought to reestablish a procedure whereby the Justice Department—and potentially private parties—could seek to disqualify insurrectionists in federal court. The connection to the First Ku Klux Klan Act would draw an appropriate historical analogy between Trump’s efforts to overturn the 2020 election results and KKK efforts to disenfranchise African American voters following the Civil War. A Fourth Ku Klux Klan Act could provide two other practical benefits.
First, the original Ku Klux Klan Act provided for disqualification actions only after a defendant took office. A Fourth Ku Klux Klan Act would, ideally, allow for disqualification actions at the candidate stage so that Section 3 issues can be resolved before voters cast their ballots.
Second, the original Ku Klux Klan Act arguably applied to the president, but it didn’t provide a special procedure for disqualification actions against the president. A Fourth Ku Klux Klan Act could set forth a streamlined procedure for adjudicating Section 3 challenges to presidential candidates—thus avoiding the mess envisioned above. One possibility is to say that if the Justice Department or any private party seeks to disqualify a presidential candidate on Section 3 grounds, the plaintiff must bring the action in D.C. federal district court. The statute could provide for a three-judge court to hear the case on an expedited timeline, ensuring that challenges would be resolved before the caucuses and primaries begin. It could track the norm in three-judge court cases of direct appeal to the U.S. Supreme Court, or—in order to accelerate the process and spare the justices from these particularly partisan disputes—it could exclude the possibility of appeals altogether such that the three-judge court has the final word.
The Bill-of-Attainder Issue
One final matter merits mention. A number of authors—myself included—have noted the potential interaction between the Bill of Attainder Clause and Section 3. As defined by the Supreme Court, a bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Article I, Section 9, Clause 3 of the Constitution bans bills of attainder.
When Congress was considering the 14th Amendment, some opponents of Section 3 suggested that the provision itself amounted to a bill of attainder. That was a makeweight argument: Section 3 does not declare any particular individual to be guilty of insurrection or rebellion—it leaves that determination for later adjudicators. But Section 3 also does not amend the Bill of Attainder Clause. Chief Justice Salmon P. Chase would later write—in a controversial opinion, though the clearest case law we have on the matter—that Section 3 should therefore be interpreted so that it is consistent with the original Constitution.
Bruce Ackerman and Gerard Magliocca have called on Congress to pass a resolution expressing the view that Trump engaged in insurrection and is therefore ineligible to hold future office. A concurrent resolution—a resolution passed by the House and Senate by simple majority, without presidential signature—does not have the force of law, and so would not be a bill of attainder. A concurrent resolution might serve as persuasive authority for a state board of elections or court deciding whether to list Trump’s name on the 2024 ballot, but it would not by itself bar Trump from running again.
Mark Graber, a leading scholar of the 14th Amendment, has argued for a more radical approach. He has called on Congress to pass—and on Biden to sign—a law declaring that Trump engaged in insurrection and that everything he did after Jan. 6 was therefore null and void. In Graber’s view, Congress and Biden could thus undo any final Trump pardons and could render Trump ineligible for future office.
I have deep doubts about this proposal. Laws naming particular individuals and excluding them from government office are quite clearly bills of attainder, at least under modern-day doctrine. The Reconstruction Congress did not enforce Section 3 through laws targeted at named individuals, and it’s an approach that should give scholars and policymakers serious pause today. If all it took were 51 votes in the Senate, 218 in the House and the quiescence of the president to exclude individuals from federal and state officeholding, it would be far too easy for bare majorities to suppress political minorities. Simply invoking the word “insurrection” would allow one party to exclude members of another from public office for life.
In sum, Section 3 can play a productive role as a deterrent and punishment for former and current officeholders who seek to disrupt the peaceful transition of power by force. But the case of anti-war socialist Victor Berger is a reminder that Section 3 should be used with caution. Narrowly construed and carefully applied, Section 3 can help to protect the American republic against violent internal threats. But calls for the broad application of Section 3 to officeholders on the periphery of the Jan. 6 attack raise the risk that Section 3 could become an anti-democratic cudgel of the type that Trump himself would wield.