The Insurrection Bar to Office: Section 3 of the
Fourteenth Amendment
Updated September 7, 2022
In the aftermath of the events of January 6, 2021, in and around the U.S. Capitol, there have been calls for
accountability for those who participated, as well as for those who may have helped instigate it. The
breach of the Capitol resulted in numerous injuries, multiple deaths, and significant property damage. It
also delayed Congress’s constitutional duty of certifying electoral votes for President-elect Joseph Biden
and caused Capitol Police and other law enforcement personnel to evacuate the Vice President and
Members of Congress from the House and Senate floors to safer locations. Some observers, historians,
and other commentators are wondering whether the Disqualification Clause of the Fourteenth Amendment
might provide a mechanism to disqualify individuals who participated in or encouraged the siege,
including former and sitting government officials, from holding office.
Invocation of the Disqualification Clause raises a number of novel legal questions involving the activities
that could trigger disqualification, the offices to which disqualification might apply, and the mechanisms
to enforce disqualification. The clause has been seldom used, and the few times it has been used in the
past mainly arose out of the Civil War—a very different context from the events of January 6. It is
therefore unclear to what extent historical precedents provide useful guidance for its application to the
events of January 6. This Legal Sidebar describes the Disqualification Clause, explains to whom it might
apply and what activities could incur a bar on holding office, and discusses possible mechanisms to
implement it.
The Disqualification Clause
Section 3 of the Fourteenth Amendment provides:
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.
