Section Three of the 14th Amendment to the Constitution of the United States provides in effect that anyone who has taken an oath to support the Constitution and thereafter engages in insurrection may not be president unless Congress declares otherwise by a two-thirds vote.
In recent days, there has been an explosion of commentary on the applicability of the clause to the upcoming elections.
See the forthcoming article in Pennsylvania Law Review by William Baude and Michael Stokes Paulson entitled The Sweep and Force of Section Three; an article in the Atlantic by J. Michael Luttig and Laurence Tribe, an article by Stephen Calabresi, a visiting professor at Yale Law School, an article in the Atlantic by David Frum entitled The 14th Amendment Fantasy, and another in The New York Times.
The clause is meaningless if there is no one to enforce it. Other states are grappling with this issue. Connecticut is not immune. See this article by Jennifer Rubin in Washington Post or this one by NBC News, Secretaries of state get ready for possible challenges to ballot access.
There is substantial support among Constitutional scholars for the propositions that the disqualification clause is self-executing and needs no enabling legislation, that election authorities are not free to ignore the Constitution, and that the operation of the clause is independent of any potential candidate’s criminal prosecutions.
Implementation of the clause is not without practical problems and it is important that enforcement efforts proceed carefully. Denial of ballot access could deprive some voters of their choices although this problem may be amenable to solution by provisional ballots. The founders did not promise that governance would be easy. When Benjamin Franklin was asked what had been created at the Constitutional Convention, he responded “A Republic, if you can keep it.”
This battle will probably be waged primarily in the swing states and could well be decided by the Supreme Court. In the meantime, a voter otherwise on the fence may first need to deal with a threshold Constitutional question.
The issue should not be left solely to the high priests of the legal system. Section Three is written in plain English. It means what it says. It is freely available for us to read and decide for ourselves in light of the events of January 6.
But ignorance is not bliss. If nothing else, there should be a public awareness of this problem. The Luttig/Tribe article has reminded us of the words of George Washington who, in his 1796 Farewell Address, referred to the Constitution as “sacredly obligatory upon all.” These words ring with special resonance today.
Frank Hanley Santoro of Deep River is a former Assistant U.S. Attorney.