Section 3 of the Fourteenth Amendment prohibits anyone who has previously taken an oath of office (that is, most current and former public officials) from holding public office if they have “engaged in insurrection or rebellion” against the United States. That raises the question of whether any of…
This booking photo provided by Fulton County Sheriff's Office shows former President Donald Trump after he surrendered and was booked at the Fulton County Jail in Atlanta.ection 3 of the Fourteenth Amendment prohibits anyone who has previously taken an oath of office from holding public office if they have “engaged in insurrection or rebellion” against the United States.
The original understanding of the definition of “insurrection or rebellion” was more sweeping than I had assumed, and crucially includes some broad classes of behavior that we would see as aiding, abetting, or even counseling miscreants, far from any front lines. It is by no means limited to, say, taking part in violent clashes.
Section 3 fell into decay following an appellate level decision called Griffin’s Case, written by Supreme Court Chief Justice Salmon Chase . Chase interpreted the section as not “self‐executing” in the absence of some prior proceeding or implementing legislation designating who exactly came under its restrictions.
Contrary to what is sometimes asserted, successive amnesties declared by Congress in 1872 and 1898 affected only persons subject to disqualification at that time, and could not prospectively immunize persons whose later behavior brought them under the law. Since January 2021, litigation seeking to disqualify candidates based on their conduct then has made clear that the law is not somehow a dead letter.
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