After the Civil War, Congress passed and the states ratified the Civil War amendments. The 13th, 14th and 15th amendments outlawed slavery, guaranteed equal protection and due process to freed slaves, and guaranteed voting rights to freed male slaves.
In the immediate aftermath of the war, Confederate sympathizers began winning elections to the House of Representatives and other key offices. Fearing they would undermine the Union and Reconstruction efforts, Congress added Section 3 to what would become the 14th Amendment to disqualify Confederate sympathizers from holding office if they engaged in insurrection or rebellion against the United States during the Civil War.
Democrats, desperate to defeat a resurgent former President Donald Trump, are dusting off the 14th Amendment’s disqualification clause, largely dormant for 155 years, with a ridiculous legal theory to remove him from the ballot before the 2024 presidential election.
Fearing their two impeachments, four bogus indictments and several frivolous civil cases — blatant lawfare and election interference by Democrats — will not stop Mr. Trump on Nov. 5, 2024, Democrats and some Trump-deranged Republicans are pushing their legal theory that Mr. Trump is disqualified from running for office under the disqualification clause (Section 3) of the post-Civil War 14th Amendment.
Their theory is that Mr. Trump’s challenge to the 2020 election (which he was allowed to do under the Electoral Count Act of 1887 and the First Amendment), the Jan. 6 protest (which was permitted by the National Park Service and allowed by the First Amendment), and the resulting riot (of which House Democrats’ Jan. 6 committee found no evidence of Mr. Trump’s incitement) was an “insurrection.”
Thus, Democrats pretend Section 3 of the 14th Amendment disqualifies Mr. Trump from running for president in 2024.
In other words, because Democrats fear the American people will vote Mr. Trump back into the White House, they want to take away the voters’ choice. This starts with left-wing watchdog groups such as Citizens for Responsible Ethics in Washington engaging in frivolous litigation in a blue state to set a lawless and dangerous precedent.
Their next targets will be key swing states like Michigan or Georgia. Further, we should prepare for unilateral declarations of disqualification by politicians, even without a criminal conviction or other judicial process.
For people who proclaim they are defending democracy, this is one of the most dangerous, destructive and anti-democratic political games imaginable.
Even if Mr. Trump has the support of the public to win back the White House, these disqualification clause zealots simply want President Biden to win by default.
This will not fly with the American people, and it will not fly with the Supreme Court.
Indeed, Stanford law professor Michael McConnell — a former federal appellate judge and no fan of Mr. Trump — destroys this legal fantasy that politicians can disqualify Mr. Trump from running for office based on the events of Jan. 6.
There is no evidence of an insurrection or rebellion on Jan. 6 under the 14th Amendment’s Civil War meaning.
“These are demanding terms, connoting only the most serious of uprisings against the government, such as the Whisky Rebellion and the Civil War,” Judge McConnell wrote.
Labeling Jan. 6 an insurrection rather than a riot is a dangerous political game that will lead to lawless, political, and very destructive disqualifications of political opponents going forward.
“The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common in United States history,” Judge McConnell concluded.
Section 3 is also not self-executing. Section 5 of the 14th Amendment gives Congress — not partisan state officials — the power to determine what qualifies as insurrection or rebellion.
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” — U.S. Const. amend. XIV, § 5.
This means that Congress must pass legislation to give the disqualification clause its effect. Chief Justice Samuel Chase made that very clear in 1869, and it remains the controlling case today. See Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869).
So in 1870, pursuant to Congress’ Section 5 powers under the 14th Amendment, Congress passed a criminal statute — the Enforcement Act of 1871, or “the Ku Klux Klan Act” — with a disqualification provision. Congress revised this statute to its current form in 1948:
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States” — 18 U.S.C. § 2383.
Thus, disqualification for insurrection or rebellion under Section 3 of the 14th Amendment requires a federal criminal conviction — with evidence beyond a reasonable doubt, a unanimous jury, and the conviction upheld on appeal — for insurrection or rebellion under 18 U.S.C. § 2383.
No one has charged Mr. Trump with insurrection or rebellion. The evidence does not exist, despite years and tens of millions of dollars spent by the House Democrats’ Jan. 6 committee, corporate media, liberal nonprofit enterprises, and the Biden Justice Department hunting for such evidence.
Democrats and Trump-deranged Republicans must stop playing their dangerous, anti-democratic political game. Booting Mr. Trump from the ballot, based upon a bogus legal theory of a Civil War amendment’s disqualification clause, is a republic-ending tactic.
Mike Davis is founder and president of the Article III Project, which defends constitutionalist judges. As former chief counsel for nominations to Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican, he served as the staff leader for Justice Brett Kavanaugh’s Supreme Court confirmation. He also served as a law clerk to Justice Neil Gorsuch, both on the 10th U.S. Circuit Court of Appeals and the Supreme Court.