Donald Trump

The 14th Amendment Disqualification Gambit

Impeachment, not the 14th Amendment, is the mechanism for disqualifying Trump from future federal office.

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As people search around for some means of taking action against President Donald Trump in light of the events of the past several weeks, and particularly of January 6, some have alighted on a previously obscure part of the Constitution. This is not the way.

The Fourteenth Amendment was adopted by Congress in 1866, and its first section extending new federal protection to the rights of individuals has been the most consequential. Section Three has mostly faded into practical irrelevance. It states:

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.

In short, it disqualifies from office those who have taken an oath to defend the Constitution but subsequently engage in insurrection or given aid and comfort to enemies of the United States.

The reason for wanting to include such a provision in the Constitution in the aftermath of the Civil War is obvious. It largely fell into disuse as time went on. The provision is very oddly structured, however, it that it gives no indication of how it is to be authoritatively determined that someone had engaged in insurrection nor how the disqualification is to be enforced in the case of such individuals.

But this is where things get interesting for President Trump. Can Congress, for example by majority vote on a concurrent resolution, simply declare that Trump has engaged in an insurrection and disqualify him from ever holding the office of president again? That would be a neat trick in that it would avoid the difficulties of winning conviction in a Senate trial by a two-thirds majority.

In the Washington Post, Daniel Hemel walks through why this is a strained interpretation of Section Three and why it would be a bad idea. I recommend checking it out. Myles Lynch has a draft article working through the history of how Section Three has actually been applied.

A Senate impeachment trial may not adhere to the same standards of due process as an ordinary judicial proceeding, but there is a reason why the punishment of disqualification can be applied only after a trial and a conviction before a court with a high hurdle for a guilty verdict. "Insurrection" is not a political offense like "high crimes and misdemeanors." It is a criminal act in violation of the criminal code and capable of being adjudicated in ordinary criminal courts. If Section Three is to be applied, then it should follow a criminal conviction for engaging in an insurrection.

If instead partisan majorities can simply declare that individuals have participated in, encouraged, or given aid to insurrections, then it is not hard to imagine how the scope of "insurrection" could grow, the evidence that an individual had actually engaged in one could be thin to none, and how this power could be turned against political opponents. How many Democratic politicians would a Republican majority in Congress be willing to disqualify from holding future office given their expressed views on various protests turned riots? It would be better not to find out.

NEXT: Today in Supreme Court History: January 13, 2014

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  1. “In short, it disqualifies from office those who have taken an oath to defend the Constitution but subsequently engage in insurrection or given aid and comfort to enemies of the United States.”

    You mean like John Kerry?

    1. Whatabout in 1!

      You, sir, are quite impressive! Next time, include a FIRST!!11!!!!

      1. Ah whataboutism, the last refuge of the double standard.

      2. Decrying whataboutism is the refuge of those with double standards.

        John Kerry took an oath to defend the USC and has multiple times in the past worked to aid this countries enemies and to undercut more than once the foreign policies of elected administration.

        1. You have cited no specifics so it’s impossible to evaluate your claims regarding John Kerry, but assume you are correct. Your argument essentially is that because John Kerry got away with something, so should Donald Trump. And that does not strike me as a particularly strong argument.

          1. Kerry was allowed to get away with it, so people complaining about Trump are talking out of both sides of their collective mouths.

            1. Allowed to get away with what? You still haven’t offered any specifics.

              1. All you need to know is that Kerry got away with it, and then they gave him a second term as President… hang on a sec.

                1. My favorite quotation from a court case: “Some people believe with great fervor preposterous things that just happen to coincide with their self-interest.” Coleman v. CIR, 791 F.2d 68 (7th Cir. 1986). Judge Easterbrook wrote that with respect to tax protestors, but it seems to apply with equal force to Trump supporters.

        2. “John Kerry took an oath to defend the USC ”

          Hold up. Are you referring to the University of South Carolina or of Southern California?

    2. Excellent example! That is exactly what would happen, bu it would include all the mayors and governors who encouraged the burning, looting, and murdering peaceful protests, who turned over sections of their cities to autonomous zones, who withdrew police protection, dismissed charges, and made lockdown exceptions contrary to laws.

      Yeah, Democrats really don’t want to go down that road, but I would love to see all these politicians trembling in fear of each other.

      1. That’s right! It is truly an excellent example.

        I bet you’re getting all tingly now! It’s kind of cute. Good for you! It’s really nice that someone is enjoying this. 🙂

      2. ” it would include all the mayors and governors who encouraged the burning, looting, and murdering”

        So, nobody, then…

  2. I think that, after a proper inquiry in the future that really determines what has happened in the last three months, we need to truly re-examine the checks and balances on the executive.

    But the 14th Amendment? No way. There are proper mechanisms in place. Use them.

    If they are insufficient, we need to change them. What we shouldn’t do is just make stuff up.

  3. Adam Schiff was still avowing that he has positive proof that Trump was acting as a Russian agent as recently as this past summer. There was a three year FBI investigation, and an impeachment trial accusing Trump of almost doing what Biden is on video boasting of having done.
    If the impeachment goes forward, any hope of convincing a very large part of the American public that Washington DC will not just make anything up to destroy those not part of the establishment is probably lost for a generation.
    Let it go.

    1. “If the impeachment goes forward, any hope of convincing a very large part of the American public that Washington DC will not just make anything up to destroy those not part of the establishment is probably lost for a generation.”

      Yeah, I think that’s actually what they’re aiming for: “Stop trying, the Uniparty is getting tired of pretending you have any choices.”

      1. Some 10-20 years ago, the (very conservative Christian-Democrat) attorney-general of the Netherlands was asked what would happen if the Netherlands was someday taken over by Islamists who wanted to impose Sharia law. He replied that if a sufficiently large majority of the people wanted that, they could have it. That’s right as a matter of law, although it takes a supermajority to amend the Dutch constitution, just like it does in the US.

        Point is, until you amend the Constitution to do away with democracy, nobody ought to pretend that you have a choice between elections and putting your preferred candidate in with violence.

        1. You know, Stalin said that it didn’t matter who did the voting, only who did the counting.

          American political parties say, it doesn’t matter who does the voting, only who decides who can be on the ballot.

          Trump’s real offense was that Republican voters chose him to be on the ballot, not the party establishment.

          1. Whatever helps you sleep at night.

          2. “Trump’s real offense was that Republican voters chose him to be on the ballot, not the party establishment.”

            Trump’s real offense is that he mistakenly thought he was elected King, not President.

    2. ” an impeachment trial accusing Trump of almost doing what Biden is on video boasting of having done.”

      Such a difference it makes if you are acting in accord with the US government or freelancing for your own goals.

    3. If the impeachment goes forward, any hope of convincing a very large part of the American public that Washington DC will not just make anything up to destroy those not part of the establishment is probably lost for a generation.

      I mean this in the nicest possible way, but are you a fucking idiot? All of Trump’s relevant conduct is recorded and available to view online at your convenience.

  4. In the Washington Post, former appeals court Judge J. Michael Luttig makes the case that a Senate trial for Trump after impeachment is unconstitutional because the Constitution only provides for the impeachment process to remove a President from office.

    https://www.washingtonpost.com/opinions/2021/01/12/once-trump-leaves-office-senate-cant-hold-an-impeachment-trial/

    What sayeth the experts on this?

      1. To be fair, Adler’s post was short and more of a statement, rather than an explanation or argument. The article he quotes relies principally on historical impeachment convictions after the “defendant” left office. That is certainly weighty evidence in my view, but not dispositive. I think Luttig makes a strong case in the other direction (although I’m always skeptical when someone calls his answer to a hard, highly-debated question as “clearly” correct). And I note that Ackerman in pushing the 14A route says that you can’t convict on impeachment after the president leaves office.

        So it seems to be a tough question. In the end, I’m not sure that SCOTUS would want to resolve it. I could see them them dismissing the case as involving a political question. But who knows?

        1. “In the end, I’m not sure that SCOTUS would want to resolve it. I could see them them dismissing the case as involving a political question. But who knows?”

          At least some people see the Supreme Court deciding the issue in a way favorable to Conservatives. This is why they fought so hard to put Conservatives on the Court in the first place.

    1. “What sayeth the experts on this?”

      Not claiming to be an expert but this is the Internet so who cares.
      Holding an impeachment trial after the man has been turfed for losing an election is entirely up to the people who have power, and the Founders are 100% dead and therefore lack current power to tell anyone what to do or what not to do.

      It’s not like being barred from holding office in the future would affect Trump, he’d just tell his supporters that the vote was rigged and that he’d won the trial. By, like, a lot.

    2. Judge Luttig´s essay is short on analysis and long on ipse dixit.

  5. There have been almost a dozen blog posts on Balkinization about this, I recommend people have a look. The consensus there seems to be that a (joint) resolution in Congress could never disqualify someone. It would simply be a (non-binding) expression of Congress’s view on whether someone is already disqualified. The ultimate “proof of the pudding” would then come when such a person seeks to be included on the ballot in a given state, where the state’s usual procedures would have to be followed to decide whether they’re eligible. (Which would presumably involve appeals all the way up to the state supreme court and, since this is a federal question, the US Supreme Court.)

    1. I am trying to measure just how much contempt I have for anyone who would try to turn Section 3 of the 14th Amendment (which clearly dealt with people who participated in the Confederacy) into a convenient no confidence vote because their side was unable to win enough seats in the election and has to actually convince people of the other party to join in their project.

      Seriously, if Section 3 allowed a majority of Congress to remove the President upon a mere accusation of insurrection, basically, every party who ever controls a majority of both houses of Congress will simply remove the President and Vice President and put the Speaker of the House in charge. You think Dole and Gingrich wouldn’t have done this to Bill Clinton? You think O’Neill and Mitchell wouldn’t have done this to Reagan?

      Which makes this one of the dumbest arguments in human history.

      I think there’s a tendency that law professors have- especially liberal law professors, who get particularly upset that the American public is somewhat more conservative than they are, though conservatives sometimes do this too- to think you can just dig up some obscure provision somewhere and avoid having to actually win political arguments and convince people who don’t think their ideas are revealed truth. This is just a classic example of it.

      The Constitution permits removal of a President. All you have to so is convince a fraction of the other party’s Senators. Surely if you have such a strong case you can do it. To allow this would be to fundamentally change the American form of government to gain a temporary political advantage- which is not good no matter who proposes it.

      1. It is common to believe that the Constitution prohibits anything. It doesn’t. People do. Not once has the Constitution been seen popping open the display case and hopping down to go tell somebody they can’t do something. Not once. It has no magic power.

      2. You think Dole and Gingrich wouldn’t have done this to Bill Clinton? You think O’Neill and Mitchell wouldn’t have done this to Reagan?

        No, because with the exception of Gingrich these men were gentlemen, who believed in democracy and the rule of law. The present day Republican party, sadly, doesn’t much seem to care about either.

        1. I don’t think they were gentlemen at all, or to put it another way, I think “gentlemanliness” in politics is precisely correlated to what the rules allow.

          A world where we remove Presidents whenever we have a congressional majority and without going through an impeachment trial is a world where that happens, because constituents will demand it happens.

          Governments are populated by evil, ambitious people who love power and want it more than anything. If this were not true, we wouldn’t need a constitution at all- we could probably run the country through “gentleman’s agreement” (or the non-sexist version of the concept). But in the real world, that doesn’t work. You need constraints.

          The impeachment power is a wonderful constraint- on the one hand, it tells Presidents “don’t do anything so unpopular that the country will demand their Representatives and Senators oust you”; on the other, it tells members of Congress “you can’t oust a President except in that rare situation where you can convince people who don’t agree with your politics to do it”.

          Circumventing that is a very bad idea.

  6. Such a declaration would constitute a bill of attainder.

    1. No it wouldn’t. It wouldn’t constitute a bill of any kind.

      1. If the intent is to prevent Mr. Trump from holding future office, it definitely is.

        A bill of attainder is exactly a legislative act which declares a person guilty of wrong-doing and subject to a punishment.

        Mr. Trump could only be prevented from holding office under the 14th Amendment if he were first found guilty of an insurrection offence in s court of law. The Bill of Attainder clause completely prohibits this from occurring by legislative action.

        1. BoA has a criminal component to it.

          That’s why Congress can target people and institutions and bar them from federal grants and contracts and the like.

        2. As textualists keep telling me, intent is irrelevant. A declaration by Congress wouldn’t deprive anyone of anything. Only a bill passed by both houses and signed by the President might do that.

        3. Mr. Trump could only be prevented from holding office under the 14th Amendment if he were first found guilty of an insurrection offence in s court of law.

          Is that in the director’s cut of the Constitution?

          1. As it turns out, Trump can also be prevented from holding office because of inability to win an election.

        4. Mr. Trump could only be prevented from holding office under the 14th Amendment if he were first found guilty of an insurrection offence in s court of law.

          Like senator-elect Thomas, who is discussed below?

    2. US Const Article I, Section 9

      “No bill of attainder or ex post facto law shall be passed.”

      It is not just that such a declaration would itself be unconstitutional. The act of passing it would be unconstitutional, a violation of the oath of office of every member of Congress who participated.

      1. Hang on, so your argument is that section 3 of the 14th amendment is unconstitutional? Or that there is somehow no constitutional way to apply it?

        1. No, he explicitly said, “Mr. Trump could only be prevented from holding office under the 14th Amendment if he were first found guilty of an insurrection offence in s court of law.”

          Is that not a way?

          The point is that they can’t vote him guilty of insurrection.

          1. Well, no, but not because of the bill of attainder clause, but because that’s the straightforward reading of section 3.

          2. Yes, that’s my point. The 24th Amendment clause absolutely can apply with appropriate proceedings. But they can’t simply vote him guilty.

            1. Sorry 14th Amendment.

            2. It could also potentially happen following impeachment and conviction of insurrection “high crimes and misdemeanors” in the Senate. This process is not an attainder. (The Senate acts as a court of impeachment, not a legislative body.)

              But it must occur by some recognized constutional procedure. Voting him guilty is not one of them. It’s forbidden by the Bill of Attainder clause.

              This means its not its own independent path. It’s applicability is dependent on other paths.

          3. “The point is that they can’t vote him guilty of insurrection.”

            Neither can you vote him not guilty.

  7. But there was no insurrection or coup. Nothing of the sort. Nor did Trump do anything but give a well received speech to a crowd of activists.

    1. You sound like Saddam’s minister of information.

      1. They’re not even within 100 miles of the Capitol. They are not in any place. They hold no place in Washington DC.

        This is an illusion … the MSM is trying to sell to the others an illusion.

        Trump will welcome the impeachers with bullets and shoes.

      2. You like to sneer at others for not knowing what has already been posted in the VC.

        Have you not read the articles here, but VCers who want Trump impeached, that he did not break any laws, that his speech was protected by the First Amendment?

        Tsk tsk.

      3. Are you really going to argue that the cos play actors who participated in the Capitol Hill event were trying to actively overthrow the government?

        1. I’m saying that they succeeded in preventing Congress from sitting for a period of time.

        2. Yes. They were trying to install Trump as president for 2021-2025 after he lost the election.

          1. Damn you are gullible. Perfect fodder for politicians to confuse.

            1. It’s automatic mockery any time a Trumpista calls anyone else “gullible”.

            2. There’s a *lot* of reporting lately on how DMN is correct, and you’re in denial.

              If you’d care to look for it, of course.

        3. “Are you really going to argue that the cos play actors who participated in the Capitol Hill event were trying to actively overthrow the government?”

          That they were ineffective in no way proves lack of intent. If you try to hold up a bank, but the teller just laughs at all the misspelled words and bad grammar in your holdup note, the fact that you got no money doesn’t make you innocent of a charge of attempted bank robbery.

  8. Do we still adhere to the foundational principle of due process and innocent until proven guilty? Charges of insurrection and rebellion should be criminally prosecuted.
    The legislature consists of politicians ever eager to eliminate their opponents and should not be allowed to disqualify political opponents.

    1. Take it up with the drafters of the Constitution.

    2. somebody fails to understand history.
      The legislature represents he people of the country, not the people who wish they lived in a different country.

  9. That article on the history of Sec. 3 looks interesting – it mentions Victor Berger, the only non-Confederate I know of who was ruled disqualified under this section.

    1. How about Phillip Thomas, who was ruled ineligible to take his seat in the Senate because he gave his son $100 when he joined the confederate army? https://balkin.blogspot.com/2021/01/constitutional-disqualifications-from.html

      The issue of line-drawing played out dramatically in the case of Phillip Thomas, who had been elected to represent the state of Maryland. Though a slave state, Maryland was loyal to the Union and never seceded during the Civil War. Phillip Thomas never joined the confederacy. In fact, Mr. Thomas had taken the oath to uphold the Constitution years earlier as a member of President Buchanan’s cabinet, well before the Civil War. Any political positions he had taken during that time were not an issue for the Congress.

      Mr. Thomas’ disqualifying act was his willingness to permit his underage son to go off to join the Confederate army. Mr. Thomas had attempted to dissuade his son, but when the son insisted, in perhaps a misguided act of fatherly generosity, Mr. Thomas gave his son $100, just in case he found himself in jail somewhere. It was this relatively innocuous action, tangentially perhaps and remotely in support of the insurrection, that caused the Senators to debate Thomas’ qualification for almost a year. Eventually, the Senate concluded that this act was enough in fact to disqualify him from taking his seat in the Senate.

      1. The problem with all these Civil war/Reconstruction precedents is that they’re a horror show in terms of anything like due process. You had amendments being ratified at gun point, newspapers being shut down in peaceful areas because the government didn’t like what they printed, you name it.

        It was nothing like constitutional government at the time, and the precedents they set back then are nightmarish.

        1. So giving up on originalism all of a sudden?

          1. No, but they sure did for a few years there.

            I’m saying, if you want to apply civil war precedents, win a civil war first. You don’t get to treat half the nation like conquered territory if you don’t conquer them first.

            1. And what I’m saying is that I’d rather not have the US fight another civil war. Inter arma enim silent leges, etc.

              1. I’d rather not have another civil war, either. But applying civil war precedents in peace time, that treat half the nation like they were recently conquered in a war, is a pretty good way to guarantee one.

                1. How about ignoring elections because you didn’t win, Brett? Does that guarantee another civil war? Why not?

            2. :You don’t get to treat half the nation like conquered territory if you don’t conquer them first.”

              You lost the election, Brett. That means the other guy gets to be President. Get over it. Not getting over losing to Clinton in 92 is a big part of how Republicans got him re-elected in 96.

      2. I guess they ruled Thomas *was* an ex-Confederate, though it was a stretch.

        In contrast, they didn’t even *allege* that Victor Berger was associated with the Confederacy (which would have been tough because he was born in Austria in 1860, limiting his opportunities to help the Lost Cause). The disqualification controversy in his case involved the First World War.

        Is there another case like Berger’s, where there wasn’t even an allegation of Confederate activity?

      3. Lincoln suspended the writ of habeas corpus in Maryland.

        1. More correctly, Lincoln tried to suspend the writ.

      4. Each house has control over its members and can choose to seat, not seat or expel any member. After the Civil War George Michael Decker Hahn a unionist Democrat was selected by the Reconstruction Legislature of Louisiana as a Senator. The Senate refused to seat him. He was Governor of Louisiana from 1864 to 1865 during the Federal Occupation of Louisiana and later served in the House of Representatives December 3 1862 – March 4, 1863 and March 4, 1885 – March 15, 1886. He died in office.

        1. Yes, why are you telling me that? Each house can decide whether to sit one of its members, but they still need a valid legal basis for refusing to sit someone. One such basis has historically been section 3 of the 14th amendment, which is why we were discussing these precedents.

          1. It’s why you don’t impeach a Senator, the Senate handles it for itself. The example I gave above there was no real legal reason not to seat Hahn, who had opposed succession and was selected by a pro-Union legislature in a state under Union occupation. The Senate – specifically the Radical Republicans – was not seating anyone from the South, whether they were and insurrectionist or not.

  10. Thank you. Finally, a Conspirator who opposes endless political lawfare.

  11. “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” [emphasis added]

    Engaged in — not conspired to, not given aid and comfort to those so engaged, but actually “engaged in.”

    How deranged do you have to be to conclude that being more than a mile away from something that he didn’t even know was occurring constitutes physically doing it? However:

    “But Congress may by a vote of two-thirds of each House, remove such disability.”

    That means that Congress “may remove such a disability” — including one imposed by Impeachment. It was an amendment to the Constitution, it modified the original text…

    1. Conspiring is a hard question. But aid and comfort isn’t. It is literally the next part of the clause you quoted

    2. “Engaged in — not conspired to, not given aid and comfort to those so engaged”

      Engaged in OR given aid and comfort.

      Don’t they teach English in Maine schools?

  12. I believe the structure and language clearly imply actions taken before the drafting of the amendment, and not prospective action going forward.

    Was this section ever enforced (or even enforceable)? Seemingly not as to state officers at least, where a great many Confederates would go on to serve. (Frankly, the Southern states would have been pretty hard pressed to find officeholders who didn’t fight for or “give aid and comfort” to the Confederacy. For example Confederate general James P. Eagle would go on to serve as governor of Arkansas from 1889 to 1893, and, in that position, receive U.S. President Benjamin Harrison (himself a former Union general) as the first sitting President to visit the state.

    Or perhaps President Andrew Johnson’s general pardons effectively negated this section, though it seems no one cared enough to litigate the matter.

    1. Yes they were pardoned

  13. ” It is a criminal act in violation of the criminal code and capable of being adjudicated in ordinary criminal courts.”

    Not against a sitting President.

    1. In a few days he won’t be a sitting president and if convicted of insurrection would be ineligible for Federal Office.

      1. We already know he’s ineligible to be President on the 21st. We’re trying to figure out if he gets to be President NOW.

  14. How many Democratic politicians would a Republican majority in Congress be willing to disqualify from holding future office given their expressed views on various protests turned riots?

    This question applies equally to the impeachment question.

    Hate based suppression is un-American.

    1. As a matter of simple observation it clearly isn’t.

    2. “Hate based suppression is un-American.”

      Hard to say this with a straight face if one has any knowledge of American history.

      1. OK., now that we have gotten the snark out of the way, can we address his question.

        Do we want to open the door to a simple majority voting to disqualify office holders for “insurrection?” Because a fair argument can be made that the disqualification that some want to do to Trump under the 14th Amendment could easily apply to those who gave rhetorical support to last summer’s insurrections. Kamala Harris comes to mind.

        (And spare me the arguments that Trump is worse. As I have said here before, you don’t get off murder because the other guy committed more murders, or tortured his victims first. “The other guy did worse” is not a defense.)

  15. >>> If Section Three is to be applied, then it should follow a criminal conviction for engaging in an insurrection.<<<
    I am not sure this is correct, were all the leaders of the Confederacy actually tried and convicted of Insurrection?

    1. ” were all the leaders of the Confederacy actually tried and convicted of Insurrection?”

      Probably not. For the most part, they just had their own knowledge that their Noble Experiment in state’ rights got a lot of people killed, and then they mostly retired from public service. It wasn’t until years later that they were determined to be noble martyrs of a Lost Cause.

      1. On December 25, 1868, Johnson declared “unconditionally, and without reservation, … a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws ..

        1. Peachy. So why weren’t there trials for the ringleaders between 1865 and 1868? Granted, everybody was kind of busy trying to get Reconstruction sorted out, but still, there were an awful lot of dead people to overlook if they were too busy to charge people for crimes related to the War.

  16. We might just have to stick with the rule that people who lose elections don’t get to take office (or stay in office). Anybody have an objection to that rule?

    1. What rule is that? Ever heard of Grover Cleveland? Richard Nixon?

      1. You’re unfamiliar with the principle that the loser of the election loses?

        1. i.e. Nixon lost, and Kennedy became President.

      2. And Cleveland lost, and had to wait 4 years to be President again.

  17. “…If Section Three is to be applied, then it should follow a criminal conviction for engaging in an insurrection….”

    Usually, sure. But *always*???
    Imagine: Trump did resign, and Pence pardons him, “For all crimes relating to his role in the 2020-21 insurrection.” (I’m paraphrasing…the actual pardon would use more-detailed language, of course.)

    Are you really saying that Trump could not be subject to Section Three?!??? (In this hypothetical; it now, after all, is impossible for Trump to be even criminally charged for insurrection, let alone convicted.)

    1. Or suppose you buy into the theory that Trump can pardon himself, and his choice to do so is binding upon anyone else. If he really thought it would work, he’d have done it long ago, to end his tax case.

    2. In your hypothetical a pardon would erase the disability, that is exactly what happened to the former Confederates under Johnson.

      1. Nope. A pardon would not remove the disability. Says right in the amendment that it takes a 2/3 vote of Congress.

  18. “The provision is very oddly structured, however, it that it gives no indication of how it is to be authoritatively determined that someone had engaged in insurrection nor how the disqualification is to be enforced in the case of such individuals.”

    It’s almost like the drafters of the 14th Amendment assumed that people would act with honor and uphold their oaths to support the Constitution.

    1. They clearly didn’t, otherwise they wouldn’t have needed section 3. (Or a civil war.)

      1. Section 3 of the 14th amendment, like the rest of the amendment, came AFTER the Civil War.

  19. doesnt a vote for disqualification send a message that Congress does not trust the voters?

    1. I think that’s a fair point. But objections should not be aimed at today’s Congress…your beef is with the people who ratified that particular clause. And, unlike some laws, it’s clear that it was an intentional consequence. It’s inclusion makes no sense, unless your premise is correct…”[enough] voters are idiots.”

      During law school, I never got a satisfactory answer from my professors when I asked about this. But clearly, the drafters were more far-sighted than I would have been.

    2. “doesnt a vote for disqualification send a message that Congress does not trust the voters?”

      No more than the Constitution’s requirements for eligibility for office. Maybe if the voters want a 34-year-old President, they should be allowed to elect one. ditto for the foreign-born one, or the 29-year-old Senator.

  20. Au contraire. The 14th amendment is explicit:

    “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

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