Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment

68 Pages Posted: 11 Jan 2021 Last revised: 7 Feb 2022

Date Written: December 13, 2020


To become President of the United States, you must be constitutionally qualified. You must be thirty-five years old, a natural born citizen, and a resident for fourteen years. Neither Congress nor any state can set this threshold higher; the same is true for congresspeople. But since it was last successfully invoked in 1917, most have forgotten the other qualifier—for officers at both the state and federal levels—from Section 3 of the Fourteenth Amendment. Those who have violated their oath to uphold our Constitution can be disqualified from holding any public office under the United States or any state. This Article reconstructs this lost qualification and develops a framework for its twenty-first-century application by states, federal courts, and Congress.

Part I uses sources from and contemporary to the drafting of the Fourteenth Amendment alongside recent secondary sources to determine what Section 3 means. Part II then develops a test that can be applied in judging a Section 3 case. Part III briefly explores mechanisms through which the qualification can be enforced. Part IV reviews and summarizes some surviving use-cases so that decisionmakers can easily compare modern transgressions to precedent. And finally, Part V adopts the analysis from Parts I & II and scrutinizes a hypothetical person who may be barred by Section 3. The Article then concludes.

Keywords: constitution, constitutional, law, fourteenth, amendment, 14th, disloyalty, oath of office, insurrection, rebellion, aid or comfort, aid and comfort, treason, disqualification, qualifications, enemies, section three, section 3, reconstruction, legal history

Suggested Citation

Lynch, Myles, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment (December 13, 2020). 30 Wm. & Mary Bill Rts. J. 153 (2021), Available at SSRN: https://ssrn.com/abstract=3749407 or http://dx.doi.org/10.2139/ssrn.3749407

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