At Volokh Conspiracy, Steven Calabresi: Donald Trump and Section 3 of the 14th Amendment – Donald Trump is obviously not disqualified from seeking re-election under Section 3 of the 14th Amendment.
The Colorado Supreme Court and Maine's Secretary of State have both declared that former President Donald Trump is disqualified from being on Republican primary ballots in 2024 because of his role in the events, which led to the January 6, 2021 riot at the Capitol Building when the electoral votes from the 2020 presidential election were being counted. This is a hard question, which I have thought carefully about for months now and here is my final conclusion.
An early draft of Section 3 of the Fourteenth Amendment provided in effect that: "No person shall be President or Vice President, Senator or Representative, or elector of President of President and Vice President or hold any office, civil or military, under the United States, or under any State, or as a Member of any State Legislature, or as any executive or judicial officer 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.
The words "President or Vice President" were deliberately edited out of the final version of Section 3 of the Fourteenth Amendment. This, together with the disqualification of presidential electors and vice-presidential elector who have engaged in "insurrection or rebellion" makes it clear that the Framers' of Section 3 did not intend for it to apply to presidents or vice presidents who engaged in insurrection.
This impression is augmented by the fact that Section 3 methodically applies in order from the highest office to the lowest office. Section 3 first disqualifies insurrectionist Senators and then Representatives. It then disqualifies all appointed civil or military officers; it then disqualifies insurrectionists from serving as a member of any State legislature, and it finally disqualifies in insurrectionists from serving as State executive or judicial officers. This careful hierarchy suggests that the phrase "or hold any office, civil or military, under the United States" does not apply to the President or Vice President, but applies only to appointed federal officers. …
After further discussion of this point, Professor Calabresi adds (in a reversal of an earlier view) that in any event Trump did not engage in insurrection:
I turn next to whether the events of January 6, 2021 were an insurrection. No-one would contend they were a rebellion, which requires the use of armed paramilitary force to overturn the election.
Noah Webster's First Edition 1828 Dictionary of American English [Ed.: um, why aren't we using the 1864 edition?] defines "insurrection" as follows:
INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]
- A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.
It is found that this city of old time hath made insurrection against kings, and that rebellion and sedition have been made therein. Ezra 4:19.
Webster's defines a riot as follows:
RI'OT, noun
- In a general sense, tumult; uproar; hence technically, in law, a riotous assembling of twelve persons or more, and not dispersing upon proclamation.
The definition of riot must depend on the laws. In Connecticut, the assembling of three persons or more, to do an unlawful act by violence against the person or property of another, and not dispersing upon proclamation, is declared to be a riot. In Massachusetts and New Hampshire, the number necessary to constitute a riot is twelve.
The events of January 6, 2021 occurred for three and one-half hours in one city only in the United States, Washington D.C., and not as an overall insurgency in multiple cities across the United States. The crowd was not carrying firearms and it dispersed when then President Trump asked for it to disperse. While the interruption of the counting of electoral votes is inexcusable as is the death that day of five persons and the injury of dozens of others, the fact of the matter is that the events of January 6, 2021 were more akin to a riot than they were to a systematic planned out "insurrection or rebellion." Section 3 of the Fourteenth Amendment use the words "insurrection" or "rebellion as synonyms. The canon of construction of noscitur a sociis, a word derives its meaning from the company it keeps applies here. The kinds of "insurrections" described in Section 3 are akin to "rebellions" as the paradigm case of the onset of the Civil War makes clear. The events that occurred on or about January 6, 2021 were very, very bad, but they were not an insurrection or rebellion.
RELATED: In the Epoch Times, Robert Natelson: Why It May Be Impossible to Disqualify Trump from the Presidency (registration required, but Josh Blackman has a summary here).
Posted at 6:14 AM