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Section 3 of the 14th Amendment

Jeffrey Miron

Constitution

Adopted in the wake of the Civil War, Section 3’s intent was to prevent Civil War leaders from serving in high federal office. That goal was understandable, but Section 3 has implications that might give pause.

Section 3 is anti‐​democratic. If voters want an insurrectionist, perhaps they should get an insurrectionist. (Democracy, per H.L. Mencken, is the theory that the people know what they want and should get it good and hard.) In some cases, insurrectionists have good reasons for their actions (think the Revolutionary War). Relatedly, Section 3 punishes the losers from internal conflicts, which might inhibit reconciliation.

And if Section 3 keeps a popular candidate off the ballot, that will likely increase polarization and resentment amongst the candidate’s supporters, perhaps to the point of further, and worse, insurrection.

An earlier version of this article appeared on Substack on January February 10, 2024.

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