The Lawfare Podcast

Lawfare Archive: Dan Hemel and Gerard Magliocca on Section 3 of the 14th Amendment

Sep 9, 2023

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.

46:52

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Episode guests

Dan Hemel

Gerard Magliocca

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Quick takeaways

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.

Introduction

2min

Origins and Application of Section 3 of the 14th Amendment

11min

Determining Eligibility Under Section 3 of the 14th Amendment

21min

Congress's Definition of 'Insurrection' and 'Rebellion' in Section Three of the 14th Amendment

3min

Analyzing Culpability and Engagement in the Insurrection

5min

Considerations of Using Section 3 of the 14th Amendment

5min

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.

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