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Prof. Roosevelt provides historical background and shares analysis of Section 3 of the 14th Amendment

January 12, 2021

Democrats in the House of Representatives have introduced an article of impeachment against President Trump based on Section 3 of the 14th Amendment, charging him with “incitement of insurrection” over the violence at the U.S. Capitol.

The Law School’s Office of Communications turned to constitutional law expert Professor of Law Kermit Roosevelt to explain this little-known provision of the Constitution.

Office of Communications: Can you give us some background on Section 3 of the 14th Amendment?

Prof. Roosevelt: Section 3 of the 14th Amendment comes from a specific historical context and was addressed to a specific problem. In that context, it was quite clear how it worked. Application to the President today is far less clear.

After the Civil War, the Reconstruction Congress faced the question of what to do about the political power that the former Confederate states would exercise on Congress once their representatives were seated. One problem was the number of representatives: after the abolition of slavery, the population used for determining the number of representatives had increased. Section 2 of the 14th Amendment addresses that anomaly, providing that if states did not let men over 21 vote, those people (the freedmen) would count for zero, rather than three-fifths or one, in determining representation.

Another problem was the identity of the representatives: the southern states might send traitors to Congress. Section 3 addresses that; it provides that anyone who took the oath to support the Constitution described in Article VI (hence any state or federal official) and then engaged in insurrection was barred. This provision meshed neatly with the provision of Article I, Section 5, that each House would be the judge of the qualifications of its members. It meant that when ex-confederates presented their credentials, the House or Senate could refuse to seat them, as indeed they did. Its application beyond Congress is less clear, but it has been invoked there.

Office of Communications: Does Section 3 of the 14th Amendment apply to the president?

Prof. Roosevelt: The presidency is presumably covered by it, as an “office … under the United States,” so if Trump engaged in insurrection, he is ineligible to be President. Who decides whether he has done that? How do they decide? What are the consequences for his acts between January 6 and whenever the determination is made? The Constitution does not answer those questions.

Section 5 of the 14th amendment provides that Congress may enforce the rest of the amendment through appropriate legislation, and the Reconstruction Congress pretty clearly thought that it would be up to Congress: Congress could legislate to create enforcement procedures for people outside of Congress, or maybe just legislate about individuals directly. (Could the President veto? Unclear.) The Supreme Court has pushed back against that vision, though, asserting that only it has the power to interpret the Constitution — so that only it can decide what counts as engaging in insurrection.

Office of Communications: Do you believe invoking this provision in an article of impeachment against President Trump is advisable? 

Prof. Roosevelt: Invoking unclear constitutional provisions not designed for this situation is dangerous. Conflict over their meaning and application will probably end up in court, but it might well also spill out into the streets.

I don’t think the Constitution has any provision designed to address the current situation, but impeachment probably comes closest.

 

* UPDATE: Current Law Clerk and Law School alum Myles Lynch L’20 also writes extensively about the Section 3 of the 14th Amendment in his forthcoming Law Review article, Disloyalty & Disqualification. He concludes that if somebody has taken an oath to uphold the Constitution for a position “exercising significant authority pursuant to the laws of the United States” and then either (1) voluntarily takes part in a scheme causing enough domestic unrest to implicate the Insurrection Act or (2) acts in a way that strengthens entities that the United States is in a state of open hostilities with, then they may be disqualified from holding any office under the United States, unless two thirds of each chamber of Congress grants them amnesty. Read more here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3749407.