How Jan. 6 Gave the 14th Amendment New Life

As the litigation makes its way through the court system, it could also help clear up a few broader questions:

• Was Jan. 6 an “insurrection,” legally speaking?

• What does it mean to be “engaged” in insurrection, and what level of involvement triggers the Disqualification Clause?

• Does Congress need to pass a law or resolution to activate it?

“Most people, me included, think it was an insurrection, but neither Congress nor the courts have made that official determination,” said Mark Graber, a legal historian at the University of Maryland.

Laurence Tribe, an influential law professor at Harvard University, has held private conversations with several members of Congress on the topic as they puzzle through how statutes written in the 1860s might apply in an entirely new context. And while Tribe’s view is that Jan. 6 was indeed an insurrection, it is by no means obvious how courts will interpret the 14th Amendment without clearer signals from Congress.

“You’re dealing with a very murky and open area of constitutional law,” Tribe said in an interview.

Even one of the foremost experts on the Disqualification Clause, Gerard Magliocca of Indiana University, called it “vestigial” in a well-timed paper on the subject published in 2020 three weeks before Jan. 6. He has since become an advocate for applying it to disqualify Trump from running for president in 2024.

“We have to dust it off,” said Representative Jamie Raskin, a Democrat of Maryland who has consulted with Tribe on the topic. “It hasn’t been used in more than a century.”

In fact, it’s been used precisely once since the Reconstruction era — in the 1919 case of Victor L. Berger, a socialist from Wisconsin who was removed from Congress after being accused of harboring pro-German sympathies. Berger was later reinstated when the Supreme Court tossed out his conviction for espionage, on the grounds that the judge harbored an anti-German bias.

Fox News weighs in

For now, the Disqualification Clause is getting more attention on Fox News than it is within Congress — driven almost entirely by a single tweet from Marc Elias, the Democratic Party’s top election lawyer, who had predicted the provision might soon arise in litigation.

Tucker Carlson, the Fox News opinion host, held a nearly four-minute segment on Elias’s 38-word post.