Disqualification from Public Office Under the 14th Amendment

The Fourteenth Amendment is best known for protecting civil rights. Among other things, the Fourteenth Amendment:

• Grants citizenship to all people born in the United States

• Guarantees equal protection of privileges and immunities of citizens

• Bolsters the importance of due process

Section 3 of the Fourteenth Amendment established a new eligibility rule for higher office in America. Known as the "disqualification clause," this provision was mainly used to keep former Confederate officials from gaining power in the reconstructed government following the Civil War.

After that, the disqualification clause remained relatively obscure. That is, until January 6, 2021, when supporters of then-President Donald Trump stormed the United States Capitol building. Then, suddenly, the disqualification clause was back in the spotlight.

What Is the Disqualification Clause?

Section 3 of the U.S. Constitution's Fourteenth Amendment 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."

Historical Context of the Disqualification Clause

The disqualification clause came about in the aftermath of the Civil War. Picture it: the President of the United States has died by assassination. Andrew Johnson is now the new president faced with the task of uniting the nation. Everyone is cautious about bringing former Confederates many saw as insurrectionists back into the fold.

Moreover, Congress was preparing for Reconstruction, a grand effort to rebuild the South and include the formerly enslaved in public life. Having former Confederates in power threatened this Congressional plan. How could they trust people recently disloyal to the country to implement a new vision? In many ways, the disqualification clause was essential to rebuild the nation and the lives of the formerly enslaved.

Uses of the Disqualification Clause

The disqualification clause prevented a handful of public officials from retaking office 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. At that time, there was a general understanding that the disqualification clause barred ex-Confederates. So, many more former officials didn't attempt to run for office again during this period.

However, in 1872, Congress passed the Amnesty Act. This removed Section 3 disqualification for most former Confederate officials (except high-profile leaders like Jefferson Davis).

Frequently Asked Questions

Much of the discourse around the disqualification clause is theoretical. The judicial branch has had few opportunities to address its meaning.

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 former government officials from holding public office again 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 face both of the following:

• Removal from office

• A ban from holding state and federal offices in the future

Yet, how disqualification works under the 14th Amendment has never been clear.

Is disqualification different than impeachment?

Yes. An impeachment could disqualify someone from holding public office in the future on two conditions:

• If a court convicts them, and

• If Congress applies such a punishment.

However, this is separate from disqualification from holding office 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, the courts can overturn that decision.

Most importantly, the text of Section 3 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. 

Is conviction necessary for a disqualification from holding public office?

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 his conviction for "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 codified in 18 U.S. Code § 2383.  A conviction under this statute will lead to being ineligible from federal office.

This could form the basis for a Supreme Court ruling that a person not convicted of the crime of insurrection cannot be disqualified under Section 3. However, the Supreme Court has not yet decided on this issue.

Could the disqualification clause apply to former presidents?

It depends. Section Three 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. 

However, 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.

Trump v. Anderson

The U.S. Supreme Court attempted to address this issue in Trump v. Anderson.  In this case, the Colorado Supreme Court determined that the former President engaged in insurrectionist activity during the January 6, 2021, attack on the U.S. Capitol. This disqualified him from the Colorado Republican primary ballot. The U.S. Supreme Court disagreed and reversed their decision.

U.S. Supreme Court ultimately side-stepped the central issue of whether the disqualification clause applied against a former president. Instead, they ruled that only Congress could enforce this clause under Section 5 of the 14th Amendment. Moreover, the Court also ruled that states and state courts lack the enforcement power of federal officers.

They noted that states "did disqualify persons from holding state offices following the ratification of the Fourteenth Amendment." This pattern of disqualification provided "persuasive evidence of a general understanding" that the states lacked enforcement power concerning the federal officers. So, a secretary of state or a state court cannot enforce the disqualification clause.

The Court did not address whether engaging in insurrectionist conduct bars a former president from holding public office.