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01/27/2021

Section 3 of the 14th Amendment Doesn’t Apply to the Presidency
David Weisberg

There’s lots of controversy (seeherehere, and here) as to whether Section 3 of the 14th Amendment bars anyone from serving as president.  I think the most reasonable answer is ‘no’. 

Section 3 of the 14th Amendment provides, in schema, that certain persons (whom I will call “disloyal persons”) are disabled from holding certain offices (which I will call “protected offices”) unless Congress, by a two-thirds vote in each House, removes the disability.  Disloyal persons are those who, upon entering certain offices (which are not identical to the protected offices), took an oath to support the U.S. Constitution and thereafter engaged in insurrection against, or aided enemies of, the U.S.  The protected offices are: “Senator or Representative in Congress, or elector of President and Vice- President, or…any office, civil or military, under the United States, or under any State[.]”

Surely the most striking feature of Section 3 is that the list of protected offices does not include president or vice-president.  The list does include “any office, civil or military, under the United States,” and there’s been debate as to whether that phrase encompasses the presidency and the vice-presidency.  But it seems blindingly obvious that, if the presidency and vice-presidency were meant to be included, the list of protected offices would begin with “President or Vice-President, or Senator or…etc.”  I think I can explain why those two highest offices were intentionally omitted. 

In 1868 (when the amendment was ratified), formerly rebellious States were being readmitted into the Union, and there was probably great concern that those States might send disloyal persons to represent them in Washington, D.C.  Section 3 provides a check or brake on the ability of voters in formerly rebellious States to elect a disloyal person as a “Senator or Representative in Congress, or elector of President or Vice-President”—all of which are federal offices filled by elections in a single State

Electing a president (or vice-president), however, is different.  Before and after the Civil War, States committed to the Union had larger populations and more electoral-college votes than States that seceded.  Even if a disloyal person were elected as president after the war, that election would reflect the choice of citizens in States with a majority of the electoral-college vote.  Thus, in a national election, the need for a check on Confederate sentiment would have vanished.  Common sense would have confirmed that any disloyal person who managed to be elected president would have succeeded despite, rather than because of, past disloyalty.  I think that is why Section 3, both on its face and after careful analysis, does not bar anyone, including a disloyal person, from serving as president or vice-president.