The D Clause: Did It Really Vanish?

The Disqualification Clause, also known as the Insurrection Clause, is a part of the Fourteenth Amendment of the US Constitution. It states that any person who has sworn to uphold the Constitution as a member of Congress, an officer of the United States, a member of a state legislature, or a state executive or judicial officer, and subsequently engages in insurrection or rebellion against the Constitution, shall be disqualified from holding any federal or state military or civil office. This clause was ratified after the Civil War to prevent those who had served in the Confederacy from holding public office unless a supermajority in Congress voted to allow it. While it has rarely been applied, there have been recent attempts to enforce it, such as in the case of former President Donald Trump, who was deemed ineligible for the office of President by a Colorado court due to his role in the January 6 insurrection.

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The Insurrection Clause (Disqualification Clause)

The Insurrection Clause, also known as the Disqualification Clause, is a part of Section 3 of the Fourteenth Amendment to the US Constitution. This clause was ratified in the aftermath of the Civil War to prevent those who had served in the Confederacy from holding public office unless a supermajority of each chamber of Congress voted to allow it. Specifically, the clause states that no person shall be a Senator, Representative, or elector of the President or Vice-President, or hold any federal or state military or civil office, if they have:

• Taken an oath to support the Constitution as a Member of Congress, officer of the United States, member of a State legislature, or state executive or judicial officer; and
• Subsequently engaged in insurrection or rebellion against the Constitution or given aid or comfort to its enemies.

The clause further provides that Congress may, by a two-thirds vote in each House, remove the disqualification from an otherwise disqualified person. This provision has rarely been applied.

The Insurrection Clause has been the subject of recent legal debates, with the Supreme Court ruling that former President Donald Trump was not ineligible for office under the clause, despite his role in the Capitol insurrection. Additionally, Congress passed the Ku Klux Klan Act (also known as the "Enforcement Act") shortly after ratifying the Fourteenth Amendment, which included a directive to federal prosecutors to enforce the Insurrection Clause. However, this was later mooted by the Amnesty Act of 1872, which allowed most former Confederates to hold office.

The Fourteenth Amendment

The Disqualification Clause can still be enforced today, as demonstrated by the case of former President Donald Trump, who was ruled ineligible for the office of President by a Colorado court due to his involvement in insurrection.

Preventing military officers, federal officers, and state officials from serving in public office

The Disqualification Clause, also known as the Insurrection Clause, is a part of Section 3 of the Fourteenth Amendment to the US Constitution. This clause was ratified shortly after the Civil War to prevent military officers, federal officers, and state officials who served in the Confederacy from holding public office in the future. The clause states that any person who has:

• Sworn to uphold the Constitution as a member of Congress, an officer of the United States, a member of a state legislature, or a state executive or judicial officer; and
• Subsequently engaged in insurrection or rebellion against the Constitution or provided aid and comfort to its enemies,

Is disqualified from holding any federal or state military or civil office. This includes positions such as Senator, Representative, or elector of the President or Vice-President. However, Congress has the power to override this disqualification with a two-thirds vote in each House.

The Disqualification Clause has rarely been applied, and there have been efforts to enforce it in modern times, such as through the work of the January 6 Select Committee. One notable example of an attempt to invoke the clause was in the case of Anderson v. Griswold, where the Colorado Supreme Court held former President Donald J. Trump ineligible for the office of President under Section 3, citing his involvement in the insurrection on January 6, 2021. However, the Supreme Court reversed this decision, demonstrating the ongoing challenges and complexities in enforcing the Disqualification Clause.

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The Amnesty Act of 1872

The Fourteenth Amendment's Disqualification Clause states that no person shall be a Senator, Representative in Congress, or elector of the President and Vice-President, or hold any civil or military office under the United States or any state, if they have:

• Taken an oath as a member of Congress, an officer of the United States, a member of a state legislature, or a state executive or judicial officer, to support the Constitution; and
• Subsequently engaged in insurrection or rebellion against the Constitution or provided aid and comfort to its enemies.

However, Congress can remove this disqualification by a two-thirds vote in each House. The Amnesty Act of 1872 allowed former Confederates to hold office, overriding the Disqualification Clause and halting federal enforcement of the Insurrection Clause.

The Disqualification Clause has rarely been applied, but it remains a part of the Constitution and can be enforced today. Legal processes at the state and federal levels can be used to prevent those who engage in insurrection from serving in public office.

The Supreme Court's ruling on former President Donald J. Trump's eligibility for office

The Supreme Court has not ruled on former President Donald J. Trump's eligibility for office. However, the Court has been involved in several cases related to Trump's immigration policies and deportation orders. In one instance, the Supreme Court extended a freeze on the Trump administration's use of the Alien Enemies Act to deport a group of Venezuelan detainees accused of being members of a violent gang. The Court ruled that a federal appeals court should examine the migrants' claims and directed it to consider the type of notice the government should provide to allow migrants to challenge their deportations.

The closest the Supreme Court came to ruling on Trump's eligibility for office was in relation to the disqualification clause of the Fourteenth Amendment. This clause prohibits former government officials who have "engaged in insurrection or rebellion" against the United States from holding public office again. While this clause gained attention after the January 6, 2021, Capitol riot, the Supreme Court side-stepped the issue of its applicability to a former president. Instead, they ruled that only Congress could enforce this clause under Section 5 of the 14th Amendment and that states and state courts lack the enforcement power over federal officers.

The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. Section 3 of this amendment, known as the disqualification clause, was primarily used to prevent former Confederate officials from gaining power after the Civil War. It states that no person who has taken an oath as a member of Congress or as an officer of the United States shall hold any office if they have engaged in insurrection or rebellion or given aid to enemies of the United States. However, Congress may remove this disqualification by a two-thirds vote of each House.

While the Supreme Court has not directly ruled on Trump's eligibility, some argue that Section 5 of the Fourteenth Amendment requires a conviction before disqualification. According to this interpretation, a conviction under the statute criminalizing insurrection would lead to ineligibility for federal office. However, the Supreme Court has not yet decided on this matter.

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