About the Author:
Mark S. A. Graeber, a professor of law at the University of Maryland University of Maryland and one of the organizers of the annual Constitution "Schmooze," is recognized as one of the top scholars in the field of U.S. constitutional law and politics. He is the author of A New Introduction to American Constitutionalism, Dred Scott and the Evil Problem of Constitutionalism, and his most recent book is Punishing Treason, Rewarding Loyalty: The Forgotten Goals of Post-Civil War Constitutional Reform. He has been a visiting professor at Harvard University, Yale Law School, University of Virginia Law School, University of Pennsylvania, University of Toronto, University of Oregon Law School, and Simon Reichman University.
In 2024, former President Donald Trump will face some tough challenges: criminal court cases, primary opponents, and constitutional challenges to his eligibility to re-serve as president. The Colorado Supreme Court brought the latter issue to the fore when it ruled on December 19, 2023, that Trump could not appear on the 2024 presidential ballot in Colorado because of his involvement in the Jan. 6, 2021, insurrection.
The reason was the 14th Amendment to the Constitution, ratified in 1868, three years after the end of the Civil War. Section 3 of the amendment enshrined in the Constitution the principles laid forth by President Abraham Lincoln just three months after the first shot of the Civil War was fired. On July 4, 1861, he addressed Congress, declaring that "once the elected vote has been decided fairly and constitutionally in accordance with the Constitution, it can no longer be successfully resorted to bullets".
Article 3 of the 14th Amendment reads as follows:
"No person shall be a senator or representative of Congress, or an elector of the President and Vice President, or hold any civilian or military office in the United States or in any state, if such person has taken the oath of office as a member of Congress or an officer of the United States, or as a member of the legislature of any state, or as an executive or judicial officer of any state, and has taken an oath in support of the Constitution of the United States, but has participated in an insurrection or rebellion against the Constitution of the United States, or aided or empathized with an enemy of the Constitution of the United States." But Congress can lift this restriction by a two-thirds vote in both houses of the House and Senate. "
For me, a constitutional scholar, every sentence and fragment of a sentence embodies the nation's post-Civil War commitment to governance through constitutional politics. People seeking political and constitutional change must abide by the rules laid down in the Constitution. In a democratic society, force, violence or intimidation cannot be used as a substitute for persuasion, coalition building and voting.
The power of the ballot
The first sentence of Article 3 describes the various positions that people can hold only if they comply with the election or appointment rules set out in the Constitution. Republicans who wrote the amendment have repeatedly stated that Section 3 covers all positions under the Constitution. This includes the presidency, which has been articulated by many of those involved in the debate on the making, approval and implementation of the constitutional disqualification, as recorded in the minutes of the debate at the 39th Congress, which was responsible for writing and passing amendments.
Senators, Representatives, and Presidential Electors are named because there were some doubts about whether they were U.S. officials when the amendment was debated in 1866, even though they were often referred to as U.S. officials during congressional debates.
No one may hold any of the offices listed in Article 3 without the right to vote. They can hold office only if they are elected by ballot - or nominated and confirmed by those elected by ballot. None of the positions referred to in article 3, paragraph 1, may be obtained by force, violence or intimidation.
Necessary oaths
The text that follows Section 3 describes the oath to "uphold the Constitution," which requires all public officers in the United States to take an oath.
The man who wrote Article 3 insisted during congressional debates that anyone who was sworn in, including the president, must abide by the provisions of Article 3. The wording of the presidential oath is slightly different from that of other federal officials, but everyone in the federal government is required to take an oath of commitment to the Constitution before being allowed to take office.
These oaths bind officials to all the provisions of the Constitution. Only government officials who serve in accordance with the provisions of the Constitution are legitimate. Legislators must comply with constitutional provisions when making laws. Public officials can only recognize laws made by following the rules, and they must recognize that all such laws are legal. This provision of the amendment ensured that officials were obliged to govern the country by voting rather than violently.
On January 20, 2017, Donald Trump took the oath of office as president. Tom Williams/CQ Roll Call
Definition of Disqualification
Article 3 then provides for disqualification for "participation in rebellion or rebellion". Legal authorities from the American Revolution to the post-Civil War Reconstruction period held that rebellion occurs when two or more people resist federal law by force or violence for public or civic purposes.
The Shay Rebellion, the Whiskey Rebellion, the Burr Rebellion, the John Brown Attack, and other events are all rebellions, even if their goal is not to overthrow the government.
What these events have in common is that people try to block the implementation of the law, which is the result of persuasion, coalition building, and voting. Or, they try to make new laws through force, violence, and intimidation.
These wording in the amendments suggest that those who use guns when the vote fails to produce the desired results cannot be trusted as democratic officials. When applied specifically to the events of January 6, 2021, the amendment declares that those who resort to violence when the results of a vote are contrary to their own cannot hold public office in a democracy.
Opportunities for leniency
The last sentence of verse 3 announces the possibility of forgiveness. It says that "Congress can lift this restriction by a two-thirds vote in both houses of the House and Senate" – and that individuals or certain categories of people are ineligible for public office because of their involvement in an insurrection or rebellion.
For example, Congress can lift restrictions on insurgents' ability to hold public office based on evidence of genuine repentance. This is what the repentant former Confederate general James Longstreet did.
Congress may also conclude after the fact that the use of violence is appropriate, such as against particularly unjust laws. Given the strong anti-slavery commitment and abolitionist roots of Republicans, I believe that Republicans in the House and Senate in the late nineteen-fi0s would almost certainly allow those who violently resisted slave law to return to public office. This provision of the amendment stipulates that bullets may be used instead of ballot papers and violence instead of voting only in very exceptional circumstances.
Confederate President Jefferson Davis
Clear conclusions
Looking at the structure of Article 3 as a whole, it can be concluded that Donald Trump is one of the past or present government officials who violated the oath of allegiance to the constitutional rules, thereby forfeiting the right to hold public office now and in the future.
Trump supporters say the president is neither a "U.S. subordinate official" nor a "U.S. official" under Article 3. Therefore, they said that he could not be bound by the clause.
But in fact, both common sense and history show that Trump is an official, an American official, an American subordinate official as far as the U.S. Constitution is concerned. Most people, even lawyers and constitutional scholars like me, don't distinguish between these particular phrases in ordinary discourse. Those who formulated and approved Article 3 did not see a difference. Trump supporters have done exhaustive research, but have not found any claims to the contrary in the immediate aftermath of the civil war. Instead, academics John Vlahoplus and Gerard Magliocca write daily newspapers and other reports claiming that Article 3 covers the president.
Legions of Republicans and Democrats in both the House and Senate believe that Donald Trump violated his oath of office before, during, and after the events of January 6, 2021. The majority of Republican senators who voted against his conviction reasoned that they did not have the authority to convict an outgoing president. Most of them have no objection to Trump's involvement in the insurrection. A Colorado judge also found that Trump was "involved in the insurrection," which is the basis for the state's Supreme Court ruling barring him from voting.
Constitutional democracy is the rule of law. Those who have already shown their rejection of the rule of law, regardless of their popularity, are not allowed to apply. Jefferson Davis participated in a rebellion against the United States in 1861. Four years later, he was not eligible to become president of the United States, nor was he eligible to hold any other state or federal office. If Davis is barred from holding public office, then the conclusion must be that Trump is also barred from holding public office because he participated in the rebellion against the United States in 2021.