Background and Historical Context of Section 3

Section 3 was adopted as a provision within the 14th Amendment in response to a problem that emerged during Reconstruction after the Civil War ended. Former federal and state officials from Southern states, who had left government to fight in the Confederate insurrection, were returning to office and using their power of office to continue their efforts to subvert the Constitution and to undermine Reconstruction. Section 3 served its purpose during that period by enabling Congress and the courts to block a number of insurrectionists from ballot access and also to remove some from office.

Fortunately, there has been no major insurrection attempt since the end of the Civil War, until January 6th, 2021, but as a result, Section 3 went dormant and after 150 years had become obscure and seemingly irrelevant. It is rarely discussed in law schools, let alone civics classes, so only a few legal scholars specializing in the Constitution are familiar with it. Its needlessly complex sentence structure compounds this problem, so almost no one actually understands its meaning and implications, including almost all citizens and members of the media. However, Donald Trump has proven the wisdom of the framers of the 14th Amendment in protecting the Constitution from proven enemies from within, even if that protection was betrayed and nullified by those in power since Jan 6th, 2021.

Constitutional Basics and Misguided Thinking

As nearly everyone knows, in order to be President, a person must first be eligible to hold that office and then must win the Electoral vote, which is derived from each state’s popular vote. The system of elections defined in the Constitution requires that each state conduct the election process within its state, and the Secretary of State is responsible for ensuring that elections comply with election laws. This includes ensuring that each candidate for elected office is eligible to hold that office. The Constitution defines requirements of eligibility to hold office, not to run for election, and the election process depends on Secretaries of State to ensure that ineligible candidates do not appear on ballots, and political parties are expected to act in good faith by only nominating eligible candidates. This is how elections have been conducted in this country for 250 years.

Because eligibility to hold constitutional office is not a right of any person, loss of eligibility under Section 3 is not the loss of a right. Nor is it a punishment for the disqualifying conduct, but simply a consequence under the law of the person engaging in that conduct. For these reasons, no “due process” in the form of a separate administrative or judicial finding is constitutionally required to impose ineligibility, as would be required in a judicial process to impose a punishment or take away a right. Under Section 3, the ineligibility occurs automatically as a result of the disqualifying conduct. In effect, the conduct itself becomes an attribute of the person that makes that person ineligible, like age or birthplace. For this reason, Section 3 is said to be “self-executing”, which has caused a great deal of confusion, often being conflated with “self-enforcing.” What the framers of the provision expected is that election officials and the courts (and political parties) would act in good faith and diligence to “enforce” this loss of eligibility in the same way that attributes of age and natural-born citizenship are validated to ensure that only eligible candidates can be elected to office.

Crucially, “innocent until proven guilty” under the law does NOT equate to “eligible until proven ineligible”. If a person’s eligibility is challenged by an election official or through any ordinary adversarial process, the legal burden is on the candidate to prove eligibility. Barack Obama produced his birth certificate voluntarily, but it is certainly possible that a formal legal challenge by Trump in court could have forced him to do it. In the case of Trump v. Anderson, Trump was required in court to prove himself eligible, and he failed (more on that below).

However, when Section 3 became a subject of discussion after January 6, 2021, there was widespread confusion about its nature, even among constitutional experts, for the reasons described above. It was commonly referred to as the “disqualification clause”, and most people came to understand that it was about the disqualification of candidates for office, not the disqualification of office holders—which are not equivalent. Most importantly, until around mid-2023, Section 3 was never framed publicly as an eligibility requirement in the negative, meaning that disqualification under Section 3 is the functional equivalent of the disqualification of anyone who is not a natural-born citizen or less than 35 years old. Consequently, there was a great deal of confusion about how a Section-3 disqualification would be enforced both generally and specifically against Donald Trump, and most legal experts concluded that Section 3 is deficient as a “disqualification” clause because it lacks an enforcement mechanism.

Finally, in August 2023, two rigorous and completely independent legal treatments of Section 3 appeared, both reaching the conclusion that Trump had disqualified himself on Jan 6th, 2021, under that provision of the Constitution. The first was the most exhaustive scholarly analysis of this constitutional provision ever published — “The Sweep and Force of Section Three,” by William Baude and Michael Stokes Paulsen, two law professors at the University of Chicago highly regarded among right-wing intellectuals. It was distributed for comments in the summer of 2023, in time to be cited in the second article, which was an essay in The Atlantic titled “The Constitution Prohibits Trump from Ever Being President Again”, written by Judge J. Michael Luttig and Professor Laurence Tribe — among the most prominent constitutional lawyers in the country, one a Republican appointee and one associated with the Democratic legal establishment.

Both of these papers framed Section 3 correctly as an eligibility requirement, applied its language to publicly known facts, and concluded that Donald Trump had disqualified himself from holding office under its meaning.

The Litigation

Since Congress under the Democrats had not invoked Section 3 to declare Trump to have disqualified himself, any enforcement of its disqualification of Trump had to come through the Judicial Branch, for which there was ample precedent during Reconstruction.

Sure enough, in September 2023, a month after the Luttig/Tribe article was published in The Atlantic, a group of citizens in Colorado, identified as “Anderson et al.”, sued their Secretary of State for allowing Trump to compete in the Republican primary election based on Trump’s disqualification under Section 3. As an interested party, Donald Trump was allowed to “intervene” in this dispute by suing the citizens for their action, whereupon the case became known as Trump v. Anderson.

Following a five-day bench trial, the trial judge found as fact that Trump’s conduct on January 6 fell within the meaning of Section 3’s language of “engage in insurrection.” However, the judge ruled as a separate matter of law that the presidency is not an “office”, nor is the President an “officer,” within the scope of the clause.

On appeal, the Colorado Supreme Court reversed that legal conclusion, holding that the presidency is fully covered under Section 3, and the Court further upheld the trial court’s finding of fact, ruling that Trump is not eligible to hold the office he was seeking. The Court then ordered the Secretary of State to remove Trump from the state’s primary ballot.

Trump then appealed that decision directly to SCOTUS, bypassing the Court of Appeals, and SCOTUS agreed to review the case immediately. The oral argument focused entirely on the question of the process of “enforcement” of the disqualification against candidates for President, even though the text of Section 3 is a disqualification from holding office, not from being a candidate for office. In this debate, the arguments made by Baude/Paulsen and Luttig/Tribe were never presented or considered. Section 3 was not framed to be the functional equivalent of other eligibility requirements, and implicit within the debate was a presumption that such a disqualification would require an administrative determination by an authoritative body to become effective.

The Decision

Supreme Court justices take not one but two oaths of office, in which each swears to “defend the Constitution of the United States against all enemies, foreign and domestic”, and to “bear true faith and allegiance to the Constitution.” Before the Court for review was a finding of fact and law by a state supreme court that (a) Donald Trump was an insurrectionist—someone who is by definition a domestic enemy of the Constitution—and (b) that his holding the office of POTUS would violate the literal text of Section 3. The only decision the justices could have handed down and remained true to their oaths was to uphold the Colorado decision and rule that Trump cannot hold office, which would have forced the Republican Party to nominate a different candidate. This is not what they did.

Instead, SCOTUS issued a decision that did the following:

Indeed, the Anderson decision effectively turns the second sentence of Section 3 completely on its head: instead of a supermajority vote in both Houses being required to make it possible for a disqualified person to hold the office of POTUS, now a majority vote in both Houses is required to prevent a disqualified person from becoming a candidate for President.

Finally, the Court’s decision never addressed the question of what would happen if Congress were to fail to enforce the Section 3 disqualification and an insurrectionist satisfying the condition of disqualification under Section 3 were to win the election — as happened a few months later.

It also must be repeated that this decision by SCOTUS does not make Trump eligible to be POTUS, nor does winning the election, nor does certification of Elector votes by Congress, nor does the inaugural swearing-in ceremony. Only Congress can waive the disqualification, per Section 3 itself. The result of a failure to enforce the disqualification prior to the election, then, is that a person could come to hold the office in clear violation of Section 3 — as happened starting in January 2025.

Section3 Matters is a group of citizens who are joining together in an attempt to make known a supremely consequential truth that almost no one knows to be true and most believe the opposite to be true, and a truth that we believe must become widely known and accepted as reality if the republic known as the United States of America, as embodied in our Constitution, is to survive this attack by Trump and his accomplices.

We are not partisan, and we blame both parties for their failures that have led us to this unimaginable and unseen constitutional crisis, though certainly not in equal measure. Section 3 was supposed to have protected the Constitution from the very threat it faces with an insurrectionist in the Oval Office, but it did not because of the failure of key people in positions of power. We also believe that it is the path to recovering our Constitution and the rule of law.