Here I parse the meaning of the lengthy first line of Section 3 of the 14th Amendment to the U.S. Constitution.
Sometimes I have a fine eye for stuff I know nothing about. Nine days ago, an online tabloid featured a snippet from MSNBC’s Ali Velshi in conversation with retired Judge J. Michael Luttig. The subject is the legal strategy being used to keep Donald Trump off the ballot in Colorado (and elsewhere) using Section 3 of the 14th Constitutional Amendment.
Per Luttig, “Section 3 of the 14th Amendment very [clearly] says that any person who has previously taken an oath to support the Constitution of the United States, and thereafter engages in an insurrection or rebellion against the Constitution of the United States, shall be disqualified from holding any office under the United States thereafter.” And so, based on Luttig’s reading of Section 3, he criticizes the logic of litigants in places like my state of Colorado, and my wife Andrea Carney’s state of Minnesota, who argue—wrongly in his opinion—that Trump’s insurrection was against the U.S. itself rather than—rightly, he says—against its Constitution. Section 3, according to Luttig, “does not, by its terms, disqualify one who engages in an insurrection or rebellion against the United States or the authority of the United States […].” Fodder for review by the U.S. Supreme Court.
I think Luttig interprets Section 3 incorrectly, but I appreciate that the Amendment’s textual streamlining—use of “the same” and “thereof”—cultivates confusion:
Section 3. 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. [emphasis mine]
If I may streamline further:
No person shall be [President] who, having previously taken an oath [as President] to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same [the United States], or given aid or comfort to the enemies thereof [the United States].
Any ambiguity aside, it’s clear to me that “the same” refers to the country, because the insurrectionist wouldn’t give aid or comfort to enemies of the constitution; they would do so to enemies of the country.