Section 3 of the Fourteenth Amendment (the Insurrectionist Disqualification Clause) bars insurrectionists from public office. It is sometimes suggested that enforcing Section 3 against those involved in the January 6, 2021 insurrection–such as former president Donald Trump– would require new federal legislation. Free Speech For People has issued a report, co-written with Professor Gerard Magliocca of Indiana University law school, explaining why that is incorrect. To the contrary, states can enforce Section 3 without any new federal legislation–just as they regularly enforce other constitutional provisions and other sections of the Fourteenth Amendment itself. 

As the report explains, state courts do not need permission from Congress to enforce the U.S. Constitution. For example, state courts regularly enforce the First Amendment and other provisions of the Bill of Rights. That is also true of the Fourteenth Amendment. Practically every day in every state, state courts enforce other parts of the Fourteenth Amendment–especially the Equal Protection Clause and the Due Process Clause. Indeed, states have been doing so since the Fourteenth Amendment was passed, including in some of the litigation that led to the Supreme Court’s celebrated 1954 Brown v. Board of Education decision.

Section 3 of the Fourteenth Amendment is no different from the rest of the Fourteenth Amendment. Nothing in the text, original public meaning, or the Reconstruction-era history of Section 3’s implementation suggests that states need authorization from Congress to implement this part of the Constitution. To the contrary, the history of Reconstruction shows that Congress, state courts, and even ex-Confederate insurrectionists all understood Section 3 to apply without a federal enforcement statute; indeed, during Reconstruction state courts repeatedly enforced Section 3 in exactly that circumstance. Only one Reconstruction-era judicial decision (recently described as “confused and confusing” by a federal circuit judge) suggests otherwise, and this report explains why that decision was either erroneous or inapplicable to a state with a functioning state government. 

In fact, in 2022 two different states (Georgia and New Mexico) heard Section 3 challenges against those involved in the January 6, 2021 insurrection. These challenges did not need any special federal legislation, as they relied on standard state legal procedures for challenging a politician’s constitutional eligibility for office.

This report should dispel any misunderstanding that states must supposedly wait for Congress to grant them permission before they can hear challenges under Section 3. The authors of the report do not oppose federal legislation to aid in Section 3 enforcement, but state courts already have the authority to enforce Section 3 even without any congressional action.  

Free Speech For People, a national nonpartisan nonprofit public interest legal and advocacy organization, litigated challenges under Section 3 in three different states in 2022, including one in Georgia that forced Rep. Marjorie Taylor Greene to testify under oath; Professor Magliocca is one of the nation’s leading experts on Section 3, and testified as an expert witness in that trial.

Free Speech For People advocates for Secretaries of State and other chief elections officials to uphold Section 3 of the Fourteenth Amendment and bar Donald Trump from state ballots, in keeping with the holding of Judge (now Justice) Neil Gorsuch that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Free Speech For People also plans to challenge Donald Trump’s eligibility in multiple states using state candidate eligibility challenge procedures.

Read the report here. 

Read the press release here.