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.

Ratified in the Civil War’s aftermath, Section 3 of the Fourteenth Amendment, which is sometimes referred to as the Insurrection Clause or Disqualification Clause, disqualifies any person from being a Senator, Representative, or elector of the President or Vice-President, or from holding any federal or state military or civil office, if that person has: (1) sworn to support the Constitution as a Member of Congress, officer of the United States, member of a State legislature, or state executive or judicial officer; and (2) subsequently engaged in insurrection or rebellion against the Constitution or given aid or comfort to its enemies.1 Section 3 further provides that Congress may remove the bar from an otherwise disqualifed person by a two-thirds vote in each House.

Section 3 has rarely been applied.2 In 1872, Congress removed the disqualification bar from all persons “except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, military and naval service of the United States, heads of departments, and foreign ministers of the United States.” 3 And in 1898, Congress enacted broader legislation removing the remaining Section 3 disability incurred during the Civil War.4 On March 4, 2024, in its only decision specifically interpreting Section 3, the Supreme Court held unaminously in Trump v. Anderson that states cannot enforce Section 3 against federal officeholders or candidates.5 In so ruling, the Supreme Court reversed the decision of the Colorado Supreme Court that had held former President Donald J. Trump to be ineligible for the office of President under Section 3 on the grounds that he had engaged in insurrection and, therefore, could not be listed on the Colorado presidential primary ballot.6

Footnotes

1

U.S. CONST. amend. XIV, § 3.

2

Cf. Enforcement Act of 1870, ch. 114, §§14–15, 16 Stat. 140, 143 (providing for federal enforcement of the Insurrection Clause). Passage of the Amnesty Act of 1872 halted subsequent federal enforcement of the Clause against those who participated in the Civil War on behalf of the Confederate States of America. See infra note 3.

3

Ch. 193, 17 Stat. 142.

4

Act of June 6, 1898, ch. 389, 30 Stat. 432 ( “the disability imposed by section 3 . . . incurred heretofore, is hereby removed.” ). During the Reconstruction Era, a lower court held Congress first had to adopt legislation providing for removal from office in order to give effect to Section 3 and, absent such legislation, persons in office before the Fourteenth Amendment’s promulgation continued to exercise their functions lawfully. Griffin’s Case, 11 F. Cas. 7 (C.C.D.Va. 1869) ( No. 5815). Furthermore, persons who had participated in the Civil War but had been pardoned by the President before the Fourteenth Amendment’s adoption were not precluded by Section from holding a U.S. office. 18 Op. Att’y Gen. 149 (1885).

5

Trump v. Anderson No. 23-719, slip op. at 6 (U.S. Mar. 4, 2024) ( “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the President” ). For further discussion on Trump v. Anderson, see Amdt14.S3.2 Trump v. Anderson and Enforcement of the Insurrection Clause (Disqualification Clause).

6

Anderson v. Grswold, 2023 CO 63 at 221 ( “We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection.” ) Id. at 257 ( “[B]ecause President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot.” ).