Authors

Myles S. Lynch

Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment

Abstract

To become President of the United States, you must be constitutionally qualified. You must be thirty-five years old, a natural born citizen, and fourteen years a resident within the United States. 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 the states, the 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 decision makers can easily compare modern transgressions to precedent. And finally, Part V adopts the analysis from Parts I and II and scrutinizes a hypothetical person who may be barred by Section 3. The Article then concludes.

Repository Citation

Myles S. Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30 Wm. & Mary Bill Rts. J. 153 (2021), https://scholarship.law.wm.edu/wmborj/vol30/iss1/5