Eleanor Finch
The U.S. Constitution's Fourteenth Amendment, also known as the insurrection clause, has been a topic of recent interest due to its potential impact on former President Donald Trump's political future. Section 3 of the Amendment states that those who have taken an oath to support the Constitution and later engage in insurrection against it are barred from holding public office. This clause, which came about after the Civil War, was intended to prevent former Confederates from regaining power and disrupting the Reconstruction effort. While it has been invoked several times in American history, its interpretation and enforcement in the context of modern-day events, such as the 2021 Capitol riots, remain uncertain.
| Characteristics | Values |
|---|---|
| Name | Insurrection Clause |
| Part of | Fourteenth Amendment, Section 3 of the U.S. Constitution |
| Purpose | To disqualify persons from holding public office if they have engaged in insurrection or rebellion against the Constitution |
| History | Came about after the Civil War to prevent former Confederates from holding office |
| Recent Use | Used to disqualify former President Donald Trump from running in the 2024 election |
| Criticism | Some argue that a conviction for insurrection is required for disqualification under Section 5 of the Amendment |
| Related Legislation | Insurrection Act of 1807, Confiscation Act of 1862, Third Enforcement Act of 1871 |
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What You'll Learn
The Insurrection Clause and the Fourteenth Amendment
The Fourteenth Amendment to the US Constitution contains a clause that disqualifies certain individuals from holding public office if they have engaged in insurrection or rebellion against the United States. This clause, known as the Insurrection Clause or the Disqualification Clause, is found in Section 3 of the Fourteenth Amendment.
> "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 clause was added to the Constitution in the aftermath of the Civil War, as part of the Reconstruction effort to rebuild the South and include the formerly enslaved in public life. The disqualification clause prevented individuals who had been disloyal to the country during the war, including former Confederates, from holding public office and implementing their own vision for the nation.
The Insurrection Clause has been brought back into the spotlight in recent years, particularly following the attack on the United States Capitol on January 6, 2021, by supporters of then-President Donald Trump. The clause raises questions about whether former presidents who engage in insurrectionist conduct can be barred from holding public office in the future. However, it is important to note that the Supreme Court has not yet ruled on this specific issue.
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The disqualification of former President Trump
While this clause has been used to disqualify public officials in the past, it has never been used against a president. The Supreme Court has not yet ruled on whether a conviction under the statute criminalizing insurrection is necessary for disqualification under Section 3. However, the Colorado Supreme Court has recently invoked this clause, declaring former President Trump ineligible for the White House and removing him from the state's presidential primary ballot. This sets the stage for a showdown in the nation's highest court, where the final decision will be made.
The disqualification clause is just one of many challenges former President Trump faces in his bid to return to the White House. The Insurrection Act of 1807, which has been invoked many times throughout history, including during labor conflicts and to enforce federally mandated desegregation, could also be a factor. While the Act does not provide a criminal penalty for insurrection, it empowers the President to call on the National Guard and armed forces to address insurrections. In 2022, the Brennan Center for Justice proposed reforming the Act to clarify vague language and reflect modern issues.
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The role of the Supreme Court
The Insurrection Act of 1807 replaced the Calling Forth Act of 1792, allowing for the federalization of state militias or the use of regular armed forces in the event of a rebellion against a state government. The Act was invoked numerous times throughout American history, including during labour conflicts in the late 19th and early 20th centuries and to enforce federally mandated desegregation in the mid-20th century.
Section 3 of the Fourteenth Amendment of the U.S. Constitution, also known as the insurrection clause, states that:
> "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 clause has recently been invoked in relation to former President Donald Trump's 2024 campaign, with the Colorado Supreme Court declaring him ineligible under the clause and removing him from the state's presidential primary ballot. This sets the stage for a potential showdown in the nation's highest court, the Supreme Court, to decide whether Trump can remain in the race.
The Supreme Court will also have to consider the implications of its decision on the separation of powers and the balance between federal and state authority. The Court's interpretation of the insurrection clause will set a precedent and provide guidance for future cases involving the clause. Ultimately, the Court's ruling will have significant implications for Trump's political career and the enforcement of the disqualification clause in similar cases.
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The Insurrection Act of 1807
The Insurrection Act was signed into law by President Thomas Jefferson on March 3, 1807. The chief clause, in its original 1807 wording, states:
> "That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect."
The Act has been modified twice. In 1861, a new section was added to address continued unrest after the Civil War, allowing the federal government to use the National Guard and armed forces against the will of state governments in cases of "rebellion against the authority of the United States." In 1871, the Third Enforcement Act revised this section to protect Black Americans from attacks by the Ku Klux Klan and enforce the Equal Protection Clause of the Fourteenth Amendment.
While the Insurrection Act grants the president significant power, there have been calls for reform due to its vague language and lack of clear guidelines on when it can be invoked. Critics argue that the Act is dangerously overbroad and ripe for abuse, giving the president too much discretion in deploying military forces domestically.
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Congress' power to enforce the Amendment
Section 3 of the Fourteenth Amendment of the US Constitution contains the 'disqualification clause', which states that:
> 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 [...] 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.
This clause, which came about in the aftermath of the Civil War, was designed to prevent former Confederates from holding public office. However, it did not give enforcement power to the states, so a secretary of state or state court cannot enforce the clause.
Section 5 of the Fourteenth Amendment (the "enforcement clause") grants Congress the power to enforce the Amendment by "appropriate legislation". After adopting the Fourteenth Amendment, Congress passed legislation that criminalized insurrection, now codified in 18 U.S. Code § 2383. A conviction under this statute leads to disqualification from federal office.
The Fourteenth Amendment also granted citizenship to all persons "born or naturalized in the United States", including formerly enslaved people, and provided all citizens with “equal protection under the laws”. It authorized the government to punish states that abridged citizens’ right to vote by proportionally reducing their representation in Congress. It also prohibited former Confederate states from repaying war debts and compensating former slave owners for emancipation.
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Frequently asked questions
Yes, the US Constitution's 14th Amendment includes an insurrection clause.
The insurrection clause, as outlined in Section 3 of the 14th Amendment, states that:
> "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."
The insurrection clause was added to the Constitution in the aftermath of the Civil War, to prevent those who had been disloyal to the country from holding public office.
In December 2023, the Colorado Supreme Court cited the insurrection clause in declaring former President Donald Trump ineligible for the White House, removing him from the state's presidential primary ballot. This decision set the stage for a showdown in the nation's highest court to determine whether Trump, the front-runner for the GOP nomination, could remain in the race.
