Will the Federal Government Enforce Section 3 of the 14th Amendment?

On the eve of the one-year anniversary of the deadly insurrection against Congress on January 6, 2021, then-Attorney General Merrick Garland gave the public a status update on where hundreds of criminal prosecutions arising from that infamous day stood, in what eventually became the largest investigation in the history of the Justice Department.

In those remarks, he vowed that the department’s actions to date “will not be our last.”

“The Justice Department remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law,” Garland said at the time, “whether they were present that day or were otherwise criminally responsible for the assault on our democracy.”

One thing the attorney general didn’t mention at the time was what the government was doing, outside of the criminal law, to hold to account those who once swore an oath to support the Constitution of the United States, only to violate that solemn commitment when they incited, conspired with, or joined the throngs that interrupted a session of Congress during the peaceful transfer of power.

The remedy for betraying one’s oath is found in section 3 of the 14th Amendment, the so-called disqualification clause in the centerpiece of the Reconstruction amendments enacted in the wake of the Civil War. This section of the Constitution provides that anyone, at any level of government, state or federal, who once pledged to defend our founding charter but “engaged in insurrection or rebellion against the same,” may be barred from future public office. The amendment also provides that Congress may give effect to this bar through legislation.

If only for a time, in the wake of the insurrection, Section 3 experienced a revival of sorts among scholars, advocates, and civic society—and some wondered whether the 14th Amendment may, indeed, hold the key to ensuring that no one who betrayed their oath held power again. 

Then, as in now, the real purpose of this bar from public office should’ve been unifying: to prevent anyone not committed to our constitutional, multiracial democracy from ever being in charge of any part of it.

In service of this aim, one proposal introduced by Rep. Steve Cohen of Tennessee, would’ve created a mechanism to enforce section 3 in federal court.

And Mr. Garland, as a former judge and the head of the Justice Department, should make it clear that he would welcome an opportunity for federal enforcement of the disqualification clause in the courts. In his remarks on Wednesday, the attorney general nodded to the Civil War amendments and congressional enactments that have made it possible for federal authorities to stand up for the right to vote against recalcitrant state actors — and he noted how similar forces today are seizing on “unfounded claims of material vote fraud in the 2020 election” to subvert our democracy.

You cannot solve this problem with incarceration and criminal prosecutions. And so it would be entirely within Mr. Garland’s remit, as the nation’s chief law enforcement officer, to invite or even propose model legislation to vindicate the events of Jan. 6 in ways other than criminal law enforcement, which so far have produced a patchwork of punishments that fail to address the political nature of public servants turning their backs on their oath of office. As Mr. Garland surely knows, there was a time in his department’s history, not long after the Civil War, when prosecutors moved to oust public officials who violated the terms of section 3.

Congress empowering the Justice Department to take the lead in disqualification questions before federal judges would also take the pressure off state officials who are being called on to remove from the ballot officeholders who participated in the Jan. 6 insurrection. Should those efforts fail, there are already plans to litigate section 3 questions in state courts, which could get messy real soon — and may give cover to a Republican-dominated Supreme Court, down the road, to view that litigation, and the promise of section 3, skeptically if not dismissively. 

As Gerald Magliocca, a scholar of the 14th Amendment, has written, Congress doing nothing and states deciding who is disqualified under Section 3 would represent “an upside-down application” of that provision because each state is different, has different partisan biases, and holds to different timetables. “It won’t be pretty,” he wrote.

National problems — and Jan. 6 was one — simply demand national solutions. And one way to begin to move past one of the darkest days in American history is to let Congress, the Justice Department, and the federal courts decide which oath breakers should be nowhere near public office.