Revisiting the 14th Amendment: Trump’s Eligibility and the Historical Echoes of Section 3
The Wall Street Journal’s discussion about the possible use of the 14th Amendment’s Section 3 to disqualify former President Donald Trump from future ballots is deeply rooted in constitutional history and contemporary legal challenges. This section, originally aimed at preventing former Confederates from holding office post-Civil War, has been seldom invoked in modern times. However, its relevance has resurfaced, particularly in the wake of the January 6th insurrection.
Historical Context and Modern Application
Historically, the 14th Amendment, ratified in 1868, was a direct response to the Civil War, designed to secure the major outcomes of the conflict within the Constitution. It addressed fundamental issues like birthright citizenship and equal protection under the law. Section 3, specifically, was aimed at preventing former Confederates from assuming public office. Historically, at least eight public officials have been barred from office under this clause. Notably, the section doesn’t require a criminal conviction for disqualification, as its enforcement has been through civil lawsuits in state courts, among other means.
Interestingly, one doesn’t need to engage in violence personally to be disqualified under Section 3. Historical interpretations, including those by Attorney General Henry Stanbery in 1867, suggest that inciting others to engage in insurrection or rebellion also qualifies for disqualification.
The Trump Scenario
The recent focus on Donald Trump’s eligibility stems from his alleged involvement in the events of January 6th. The Supreme Court now faces the task of interpreting this seldom-used constitutional provision in the context of modern political realities. This includes defining what constitutes ‘insurrection’ today, determining if a criminal conviction is necessary for disqualification, and deciding if a President or former President falls under the scope of this amendment.
Legal and Constitutional Challenges
The application of Section 3 to a former president like Trump raises several legal and philosophical questions. Among them are defining ‘insurrection or rebellion’ for the purposes of Section 3, the role of the judiciary in this context, and the process required to make factual findings that could lead to ballot exclusion.
Contemporary Interpretation Issues
More than a century and a half later, the interpretation of what it means to engage in insurrection or rebellion, and the relevance of oaths of office, remains unclear. While Section 3 emerged from a specific historical context, its application today is not straightforward. It was clear at the time of its drafting, but now, with a lack of contemporary judicial interpretation or legislation to keep it up to date, the Supreme Court faces the challenge of interpreting it in today’s context.
The current invocation of Section 3 by individual states, with varying civil protections, further complicates its application. This has led to split decisions, like in Colorado, and unilateral actions by state officials, as seen in Maine.
Looking Ahead
The Supreme Court might consider interpreting Section 3 within the broader context of the 14th Amendment and possibly insist on congressional action pursuant to Section 5 of the amendment. Historically, Congress acted to fund and prosecute the military efforts of the Civil War and selectively referenced Section 3 during the Reconstruction period. However, Congress has also acted to remove the disqualification for office from individuals covered by Section 3, once in 1872 and once in 1898.
In summary, the application of the 14th Amendment’s Section 3 to disqualify Donald Trump from future ballots brings forth critical questions about the balance between historical intent and contemporary application of constitutional law. The Supreme Court’s decision will not only impact Trump’s political future but also set a precedent that could shape the eligibility of individuals for public office in modern America.
