Somebody's gotta say it. Why not me?

I'm not an expert on constitutional law, but I'm occasionally good at basic reasoning. Something that seems noteworthy, but not mentioned in any analysis I've heard, jumped out at me while reading Section 3 of the 14th Amendment, the one that specifies that an insurrectionist can't hold office in the U.S. Here's the relevant paragraph:

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.

Discussions of this much-debated section include the question of who must make the finding of insurrection and disqualification. Some observers insist the determination must be made by Congress.

But a simple reading of the text suggests that's not what Section 3 intends, or at least anticipates. The final sentence of the paragraph quoted above is: "But Congress may by a vote of two-thirds of each House, remove such disability."

That is, Congress has the power by super-majority vote to waive a finding of disqualification. It would be odd for Section 3 to specify the mechanism by which Congress could waive its own finding of disqualification.

Thus Section 3 seems to anticipate some other entity than Congress making the determination. Who would that be? It seems the only possibilities are the various states, through their own individual procedures, laws, and courts, or the federal judiciary.

By that reasoning the federal judiciary—ultimately the Supreme Court—is the only entity that could impose a uniform finding of disqualification across all the states. Some observers believe such uniformity is crucial.

I mention this because no analysis I've heard argues against the finding being made by Congress, which would be another way to achieve national uniformity. And as I said, some observers insist that it must be Congress that makes the determination. But it seems to me that the text of Section 3 strongly implies that Congress would not have that role.

The Supreme Court will soon hear arguments regarding Donald Trump's disqualification by the state of Colorado. The Court could punt this question in multiple ways, and probably will. It seems unlikely that it would simply uphold the Colorado finding.

Is there a chance it would it go further? Would it say Colorado's finding of Trump engaging in insurrection is correct, and that Trump is therefore ineligible to hold office? That Trump can't be on the ballot in any state?

Probably not this court, even if that would be the most logical result. But stay tuned. This will surely get interesting.

Update July 27, 2026 - When I originally wrote this essay I declined to mention that some experts contend that because of its grammar, Section 3 was intended to be "self executing," in exactly the same way that other constitutional requirements for office, such as age and citizenship, are. That would make a lot of sense considering the amendment was drafted shortly after the Civil War, when "insurrectionists" were abundant and obvious, and the default position would be that they were not eligible to hold office. That also would explain why the amendment would say that Congress, by a two-thirds vote, could "remove such disability." The disability was inherent and self-evident for someone who fought for the Confederacy, but Congress could remove it if it chose to do so. But what about today? Was Donald Trump an insurrectionist? There seems to be a strong argument that he was. But the Supreme Court ultimately ruled unanimously that only Congress has the power to enforce the disqualification rule for federal offices. Which, as I argued above, isn't logically consistent with Section 3's wording that only Congress can "remove such disability." The amendment wouldn't specify that Congress can remove its own finding of disqualification. It seems in this case the high Court didn't like where the Constitution had taken things, so it substituted its own judgement on the matter, effectively making the Constitution more to its own liking.

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