Executing on the 14th Amendment’s Disqualification Provision

So it begins, and not a moment too soon

Photo by Anthony Garand on Unsplash

There’s been lots of buzz lately about Section 3 of the 14th Amendment and its potentially disqualifying effect on folks like Donald Trump and certain others.

I’ve written about it several times myself here on Medium, and you’ve perhaps seen reference to the lengthy analysis by professors Baude and Paulsen, two very conservative scholars — and both members of the ultra-conservative Federalist Society?

Here’s a nice summary of their important scholarly work.

Then there was an opinion piece by an unlikely duo: very conservative retired federal judge J. Michael Luttig and very liberal professor Laurence Tribe.

Here’s a good discussion, by CNN, of both pieces of work.

But the main point of this article is to discuss something that seems to have slipped into the media with little notice so far, though it’s pretty new and might catch on quickly. I think it will get lots of attention very soon.

The main question at present is framed in two distinct parts. The first arises from the actual text of the constitutional provision itself, and the other from a part that’s (according to some) “missing.” We’ll do the easier one first.

Section 3 of the 14th Amendment provides (bold emphasis is mine):

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.

Any other tremulous questions aside (like is the Presidency an “office under the United States?”), let’s play that out using me as an example, and assume I wanted to run for some sort of federal elected office, even though it’s the very…