(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .
Another Approach to Amendment 14 Section 3 [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-04-23
Lately, I’ve been getting a better understanding of peculiarities that were written into the Constitution. Note that I am not a lawyer, but I think I’m good at doing research when I get interested.
Many parts of the Constitution were written to deal with conditions as they were at the time of their writing, with little concern how they would be used later when times had changed. For example, at the time of the original writing, 1787, Washington was expected to be the first President, and had been the hands-on Commander-in-Chief of the Army. Few after him had that hands-on military skill set. No other country’s Constitution asserts this joint responsibility for the Chief Executive.
Another of these “peculiarities” is Amendment 14, Section 3:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
This does not include any hint at how this was to be enforced. This was written at the end of the Civil War. It clearly describes everyone who left the Union to serve the Confederacy. Everyone contemporary to that time knew who all those were, so it should have been, in effect, self-enforcing. Note that the phrase “insurrection or rebellion against the same” clearly refers to the U.S. Constitution itself. The prohibition language is absolute. While this Section does not mention enforcement procedures, it does provide the procedure for reinstatement of office eligibility.
Amendment 14 Section 5 says:
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.”
The Supreme Court has noted in the Colorado case (April, 2024) that State laws echoing this Section can and have been used to deny access to State offices, but then ruled that State laws and State court cases cannot be used to deny access to the State-run ballots for Federal offices. For that part of the decision, there was a 9-0 majority. Beyond that, four Justices disagreed with the remainder of the ruling that invokes Section 5 to assert that the only way Section 3 can be enforced for Federal offices is through Congress writing enabling legislation. All four dissenting Justices said that adding that further concept was inappropriate to the needs of the issue under adjudication.
https://www.lawfaremedia.org/article/supreme-court-keeps-trump-on-the-colorado-ballot
It would seem, however, that there is another approach that can be argued. The Section 5 “Shall have the power” does not mean that the Congressional lawmaking is mandatory. Absent Congress having use its granted power to create enabling legislation that rules it out, it should be possible to file a civil suit in Federal Court against a specific individual for whom you believe you can produce convincing evidence that the individual fits the requirements of Section 3. Presumably, this case would be appealed to the Supreme Court because neither side will be willing to let it go and an interpretation of the Constitution is involved. Section 3 flatly specifies applicability to all U.S. and State offices, not mentioning the issue of whether the subject person is seeking office or is currently holding an office. Thus, upon the verdict being rendered against the Defendant, that individual would be instantly disqualified from whatever relevant office they may then be seeking or occupying.
Details about the Federal Courts system:
---------------------------
The federal court system has three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States.
The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties.
Once the federal district court has decided a case, the case can be appealed to a United States court of appeal. There are twelve federal circuits that divide the country into different regions. Cases from the district courts of a region are appealed to the United States Court of Appeals for that region.
https://www.justice.gov/usao/justice-101/federal-courts
---------------------------
The losing party in a decision by a trial court in the federal courts normally is entitled to appeal the decision to a federal court of appeals.
Most appeals are final. The court of appeals decision usually will be the final word in the case, unless it sends the case back to the trial court for additional proceedings, or the parties ask the U.S. Supreme Court to review the case.
A litigant who loses in a federal court of appeals may file a petition for a "writ of certiorari," which is a document asking the Supreme Court to review the case. The Supreme Court, however, does not have to grant review. The Court typically will agree to hear a case only when it involves an unusually important legal principle, a Constitutional issue, or when two or more federal appellate courts have interpreted a law differently.
https://www.uscourts.gov/about-federal-courts/types-cases/appeals
---------------------------
[END]
---
[1] Url:
https://www.dailykos.com/stories/2025/4/23/2318201/-Another-Approach-to-Article-14-Section-3?pm_campaign=front_page&pm_source=more_community&pm_medium=web
Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/
