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Disqualification from Public Office Under the 14th Amendment

Section 3 of the Fourteenth Amendment was originally intended to keep former Confederate officials from gaining power in the reconstructed government following the Civil War. Known as the "disqualification clause," this provision was fairly obscure until January 6, 2021, when supporters of then-President Donald Trump stormed the United States Capitol building.

The Fourteenth Amendment is better known for protecting civil rights. It grants citizenship to all people born in the United States, guarantees equal protection of privileges and immunities of citizens, and bolsters the importance of due process. But the events of January 6th brought the disqualification clause into the spotlight.

What Is the Disqualification Clause?

Fourteenth Amendment, Section 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."

Frequently Asked Questions

Since the disqualification clause has been litigated very little, much of the discourse around it is theoretical. Below, we answer a few frequently asked questions about the disqualification clause. 

What does the Constitution say about insurrection?

Section 3 of the Fourteenth Amendment prohibits anyone who has previously taken an oath of office (Senators, Representatives, and other public officials) from holding public office if they have "engaged in insurrection or rebellion" against the United States government. This means, at least theoretically, that officials who participate in or encourage a rebellion can not only be removed from office but prevented from holding state and federal offices in the future. However, how disqualification works under the 14th Amendment has never been clear.

Has the disqualification clause ever actually been used?

Yes. The disqualification clause was used to keep a handful of public officials from taking office again in the late 1860s and early 1870s based on their ties to the Confederacy. They included a county sheriff, U.S. congressmen, and even a local postmaster. Many more former officials didn't attempt to run for office again during this time period since there was a general understanding that ex-Confederates were barred by the disqualification clause. However, in 1872, Congress passed the Amnesty Act, which removed the possibility of Section 3 disqualification for most former Confederate officials (except high-profile leaders like Jefferson Davis).

In 2022, a county commissioner in New Mexico was removed from office based on his involvement in the events of January 6. This marked the first use of the disqualification clause since 1919. 

Is disqualification different than impeachment?

Yes. Someone who is impeached could be disqualified from holding public office in the future if they are convicted, and Congress applies such a punishment. But this is separate from disqualification under the 14th Amendment. Under Sections 3 and 5 of the Fourteenth Amendment, Congress can bar someone from holding office. But unlike an impeachment conviction, that decision could be overturned by the courts. Most importantly, disqualification under the 14th Amendment does not require the two-thirds vote needed to convict during an impeachment trial. However, two-thirds of both houses must agree to remove the "disability," once imposed. 

Does a person have to be convicted of insurrection to be disqualified?

So far, no. As discussed above, the disqualification clause was originally intended to keep people out of office who were part of the Confederacy. Most disqualified individuals were not convicted of a crime. In 1919, Congress refused to seat U.S. Representative Victor L. Berger after he was convicted of "being disloyal to the United States, giving aid and comfort to a public enemy, [and] publication of expressions hostile to the government” under the Espionage Act. Although similar, this is different from an insurrection charge. Meanwhile, a civil lawsuit filed by private citizens in New Mexico triggered the 2022 removal of Otero County Commissioner Couy Griffin. 

However, some argue that Section 5 of the Fourteenth Amendment (the "enforcement clause") does require a conviction before disqualification. Section 5 grants Congress the power to enforce the amendment by "appropriate legislation." After adopting the Fourteenth Amendment, Congress passed legislation that criminalized insurrection. Today, this law is found in 18 U.S. Code § 2383.  If someone is convicted of insurrection under the statute, they are barred from federal office. It's possible this could form the basis for a Supreme Court ruling that a person who has not been convicted of the crime of insurrection cannot be disqualified under Section 3. 

Could the disqualification clause prevent Donald Trump from being elected president in 2024?

At this point, it's unclear. Section 3 of the Fourteenth Amendment disqualifies those who have already held a public office from holding "any office" if they participate in an "insurrection or rebellion" against the United States. But since this mechanism has never been used against a president, there are still questions to resolve. By its terms, the disqualification clause applies to current and former federal, state, and military officials. However, legal scholars are split on whether the disqualification clause applies to the presidency. Plus, many argue that this is an issue better left to voters. The U.S. Supreme Court will likely have to weigh in before the disqualification clause can be effectively used to keep someone off the presidential ballot. 

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