Abstract: Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a
range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes
by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to
the Civil War, and not effectively repealed by nineteenth century amnesty legislation.
Second, Section Three is self-executing, operating as an immediate disqualification
from office, without the need for additional action by Congress. It can and should be
enforced by every official, state or federal, who judges qualifications. Third, to the
extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex
post facto laws, the Due Process Clause, and even the free speech principles of the
First Amendment. Fourth, Section Three covers a broad range of conduct against the
authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including
the Presidency. And in particular, it disqualifies former President Donald Trump,
and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
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