Updated to add this quote: “Nor is it clear if section 3 applies to the presidency. An early draft mentioned the office, but the final draft did not.” [the guardian uk]

The 14th Amendment to the U.S. Constitution, in Section 3, bans from office certain persons who have “engaged in insurrection or rebellion”. This article will make two points:

1. That the Amendment does not prevent such persons from running for office, while the question of possible guilt for insurrection is being considered by the courts;

2. That the Amendment excludes Presidents and Vice-Presidents in its scope, in order to avoid conflict with the impeachment section of the Constitution, and in order to leave the voters with the possibility of reelecting a former President or Vice-President.

Here is the text of Section 3 of the 14th Amendment to the U.S. Constitution:

“Section 3
“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.” [constitution.congress.gov]

First Point

The text above states plainly that “No person shall be… or hold any office….” It does not say that no person, who meets the conditions of the text, shall run for such offices. This is particularly relevant to cases where one State rules that the person cannot be on the ballot, and another State rules that the same person can be on the ballot. This is prima facie evidence that the question of insurrection or rebellion by that person is reasonably a matter of dispute, and not certain. In addition, if the person in question has not been convicted of insurrection or rebellion, and the U.S. Supreme Court has not ruled in the particular case, keeping anyone off the ballot is NOT in accord with the text of Section 3 of the 14th Amendment, and actually violates Section 1 of the same Amendment:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

To prevent a candidate for President, in the previously described situation (no conviction, no SCOTUS decision), from running for office deprives that person of the liberty of running for office as well as the equal protection of the laws, without due process.

So a State cannot claim to be enforcing Section 3 of the 14th Amendment, since it does not prohibit running for office, only holding office. In addition, this alleged enforcement of Section 3 by a State clearly violates Section 1 of the same Amendment.

Constitutional Example

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.” [Article II, Section 1]

It could be argued that a person could run for office and be on a ballot, being only 34 years of age, such that he would turn 35 on the day of, or shortly before the day he would take office, if elected. So a person not yet 35 could run for office. The text of the Article does not say the person must be 35 to be on a ballot or to run for office. And candidate often announce their run for office more than a year before they would take office. So a candidate could be 33 (nearly 34) and announce a run, while still being 35 at the time he takes office. This distinguished between holding office and running for that office.

The other point, which is arguable either way, is that a person might run for office who would turn 35 days or weeks after the date he should take office, could still run and be elected. Upon the first day of his term, he would have the disability of an “Inability to discharge the Powers and Duties of the said Office”, and so those powers and duties would devolve upon Vice-President, “until the Disability be removed” on the day of the 35th birthday of the newly-elected President. The point here is that a person can still run for office, even if an Article or Amendment states the same person cannot hold office.

In the case of a dispute on whether or not the insurrection clause applies to a particular person, that person, according to the plain meaning of the Constitution and its Amendments, may still run for office, may still be elected, but may or may not begin to discharge his Powers and Duties until the matter is settled by SCOTUS or by Congress. In the meantime, in such a case, the elected Vice-President would discharge the same Powers and Duties until the Disability is removed. If it is not removed, the Vice-President would become President.

Conclusion of the First Point: Former President Donald J. Trump is not prevented from running for the office of President, nor does any State have the ability, in any case, to prevent anyone from running for national office in that State, in the absence of a decision from the highest Powers in the United States (SCOTUS, Congress) resolving the disputed points as to whether or not insurrection or rebellion or aid/comfort applies to that candidate OR to that office (see below).

Second Point

The plain text of Section 3 of the 14th Amendment to the U.S. Constitution conspicuously omits the offices of President and Vice-President from the scope of that Section. Here is the wording in question:

“Section 3
“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.” [constitution.congress.gov]

Notice the order of the offices, from highest to lowest, from specific to general: Senator, Representative, elector, then other offices, civil and military, first Federal, then State. This order is repeated as the same sentence continues: member of Congress, officer of U.S., member of State legislature, and executive or judicial State offices. In both cases, the lists do not mention the President or Vice-President. And while the general term of “executive” applies to “State offices”, nothing of the kind is said with the scope of all Federal executive offices.

In addition, the text mentions specifically “elector of President and Vice-President,” but never mentions the actual President or Vice-President. This omission is very conspicuous and is evidence that the intention of Section 3 was to omit those two offices from the scope of the Section. Otherwise, why would a text which, like every Amendment, is very carefully worded and thoroughly reviewed and argued by many persons, mention electors of the President and Vice-President while omitting any mention of the offices of President and Vice-President?

The claim that the text “any office, civil or military, under the United States” applies to all offices and so to the President and Vice-President is refuted by the Power of any Amendment to make exceptions for any reason. Amendments to the Constitution, when enacted, are for all intents and purposes integral to the Constitution itself and therefore of the highest authority. Therefore, no exception, enacted explicitly or merely by omission, can be rejected, regardless of the purpose of the Amendment. If the Amendment was intended to include President and Vice-President, the text would have stated so, as it explicitly states “elector of President and Vice-President,” but does not mention the offices themselves.

The same argument applies to the text “an officer of the United States”, as this occurs in a list of decreasing level of authority, from member of Congress down to the State level, just as in the first part of the Section. The exception of President and Vice-President from Section 3 of the 14th Amendment to the Constitution is conspicuous, repeated twice, and is therefore intentional as an omission to the scope of the Amendment.

The opposite argument, that the Section should be interpreted to increase its scope to the unstated offices of President and Vice-President, is worse than legislating from the bench, as this would be an alteration of the Constitution from the bench. Constitutional Articles and Amendments which institute a severe restriction, not only on particular few persons, but on all the voters of the entire nation, must be interpreted narrowly, not broadly. Rights are broad, but restrictions on the free citizens of a free nation must be narrow.

Updated to add this quote: “Nor is it clear if section 3 applies to the presidency. An early draft mentioned the office, but the final draft did not.” [the guardian uk]

Conclusion of the Second Point: former President Donald J. Trump does not fall within the scope of Section 3 of the 14th Amendment because former Presidents are specifically and conspicuously omitted from the scope of that Section.

Why the Omission?

What would the reason be for omitting the offices of President and Vice-President from the insurrection clause of the 14th Amendment? Perhaps the framers of this Amendment wished to leave such a judgment in the hands of the voters. But nothing in the Amendment gives to States the ability to restrict a candidate for national office, without a conviction for insurrection, etc.

Perhaps the framers of this Amendment considered that a decision of a duly elected President or Vice-President, as the two highest offices in the executive branch, should not be subject to State or even Federal Courts in a judgment as to whether a decision of office should be considered insurrection or rebellion. It is also arguable whether any Presidential decision, by the valid elected U.S. President, can be legally considered insurrection, as he is the head of the nation.

The other issue is that the framers of the Amendment may have seen the insurrection clause as possibly conflicting with another section of the Constitution, which gives to the House of Representatives the sole ability to impeach a President or Vice-President, and gives to the Senate the sole ability to try and possibly convict the same. The insurrection clause, if applies to Presidents or Vice-Presidents, has a similar effect to conviction after impeachment,

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” [Article 1, Section 3]

Notice that a conviction after impeachment can result in a judgment of “disqualification” to hold any office in the United States. Given that this Section particularly refers to the case of “When the President of the United States is tried,” this disqualification does have the scope of included the President, who is explicitly mentioned (unlike Section 3 of the 14th Amendment).

IF the offices of President and Vice-President would have been included in the 14th Amendment, then two different parts of the Constitution would conflict, and two different federal branches of government would also conflict. Article 1 would give the Power to Congress to disqualify a President or Vice-President from future office. But the 14th Amendment would give that power to the judicial branch, in particular the Supreme Court of the United States. And, note well, that it would be absurd to claim that the same Power would be given also to all 50 States, and two federal branches of government.

The 14th Amendment resolves this conflict by giving the Power to disqualify a former President or former Vice-President from future office only to Congress, under Article 1, Section 3.

Also, it is essential in the framing and specific wording of any Amendment to seek out any potential conflicts with other Amendments and with Articles in the same Constitution. Even the framers of a State Constitution or State Amendments will consider whether the text conflicts with the U.S. Constitution or its Amendments. So the framers of the 14th Amendment certainly considered the question of conflict with other sections of the Constitution that might also disqualify from future office.

Conclusion of this article: former President Donald J. Trump is not prohibited from running for the office of President by Section 3 of the 14th Amendment. In any case, no State has the authority to disqualify him from running for or holding that office. It is contrary to his 14th Amendment rights under Section 1 for him to be disqualified in the absence of a conviction for insurrection, etc. or in the absence of a decision from SCOTUS or Congress. And even with a conviction for insurrection, former Presidents are excluded from the scope of Section 3 of the 14th Amendment, and so the decision of his reelection would be properly left to the voters.

Ronald L Conte Jr
Note that I am not a lawyer or constitutional scholar. This article is my personal opinion.