Lawfare Archive: Dan Hemel and Gerard Magliocca on Section 3 of the 14th Amendment
Sep 9, 2023
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Dan Hemel, a professor at the University of Chicago Law School, discusses Section 3 of the 14th Amendment as a potential tool to bar former President Trump from running in 2024. The podcast explores the historical context, determining eligibility under Section 3, Congress's definition of 'insurrection' and 'rebellion,' culpability of individuals involved in the Capitol insurrection, and considerations of using Section 3 in addressing the events of January 6th.
Section 3 of the 14th Amendment disqualifies individuals who have engaged in rebellion or insurrection against the United States from holding public office, and its enforcement process involves a three-judge district court to ensure a careful evaluation of the facts.
Applying Section 3 to prevent individuals from running for office requires careful consideration of the level of involvement needed to constitute engagement in insurrection or rebellion, as well as the enforcement process, to prevent potential abuse for partisan purposes and uphold democratic ideals.
Deep dives
Overview of Section 3 of the 14th Amendment
Section 3 of the 14th Amendment disqualifies individuals who have engaged in rebellion or insurrection against the United States from holding public office. It was initially meant to prevent former Confederate officials from serving again after the Civil War. Section 3 does not provide a specific mechanism for enforcing the disqualification, but courts have the authority to decide on the eligibility of an individual. Congress also passed the first Ku Klux Klan Act in 1870 to enforce Section 3, allowing for civil and criminal actions to oust ineligible officials. In the present day, there is debate about the use of Section 3 to prevent former President Donald Trump and other politicians from running for office again.
Defining Insurrection and Rebellion
The terms insurrection and rebellion, as mentioned in Section 3, were not explicitly defined by the framers of the 14th Amendment. Insurrection is generally understood as a brief rebellion, while rebellion is a more extended insurrection. The events of January 6, 2021, raised questions about whether they could be characterized as an insurrection, but there is no clear precedent or guidance from the framers on what constitutes insurrection or rebellion beyond the Civil War. Defining these terms in the context of Section 3 is a complex task that requires considerations of historical sources, legal precedents, and the intent of the framers.
Challenges and Considerations for Applying Section 3
Applying Section 3 to prevent individuals from running for office raises several challenges and considerations. One challenge is determining the level of involvement required to constitute engagement in insurrection or rebellion. It raises questions about the role of incitement, actions taken after the events, and the knowledge and intent of the individuals involved. The extent to which an individual's actions align with the precedents set by excluded Confederate officials in the late 1860s is also a key factor. Another consideration is the enforcement process, which ideally involves a three-judge district court to avoid potential biases and allow for a more careful evaluation of the facts. Defining insurrection and rebellion, as well as engagement, should be done narrowly to prevent potential abuse of Section 3 for partisan purposes.
Balancing Democracy and Accountability
Using Section 3 of the 14th Amendment to disqualify individuals from running for office raises questions about the balance between democracy and accountability. Critics argue that it takes away the power of voters to decide on the eligibility of candidates. However, it is important to remember that democratic processes can include qualifications and restrictions for holding office, as supported by the age and citizenship requirements for the presidency. Applying Section 3 in a fair and judicious manner with proper procedural safeguards can be in line with democratic ideals and can hold elected officials accountable for anti-democratic behavior. It is essential to interpret and apply Section 3 carefully to prevent potential abuses and ensure the health of American democratic institutions.
From January 19, 2021: In the wake of the January 6 mob attack on the Capitol, some have called for the invocation of Section 3 of the 14th Amendment. Section 3 disqualifies anyone who has engaged in rebellion or insurrection against United States from public office. In particular, critics of President Trump have seized on this as a potential way of preventing him from running in 2024. Alan Rozenshtein spoke about Section 3 with professors Daniel Hemel of the University of Chicago Law School and Gerard Magliocca of the Indiana University Robert H. McKinney School of Law.