Sam, at Just Security:

The moves to disqualify former President Donald Trump in Colorado and Maine will doubtless force the Supreme Court to confront the obscure Section 3 of the 14th Amendment. In his petition for certiorari, and in particular in Part II of the argument section of the brief, Trump points to, but ultimately shies away from, a disturbing question of constitutional design. The vexing question is what becomes of a constitutional provision that lives beyond its historical context with nothing in either legislation or judicial interpretation to keep it up to date….

The problem now is that, more than a century and a half later, it is far from clear what it means to have engaged in insurrection or rebellion, or to have given comfort to enemies, and what weight should be assigned to different formulations of oaths of office. Better put, it was patently clear what all this meant when drafted. Indeed, it was so clear that Section 3 makes no effort to define the terms or to contemplate how they should be enforced. Rather, Section 3 adopts the concept of disqualification for insurrection from an earlier wartime statute passed in 1862 that continues more-or-less intact to the present day as the Insurrection Act. Notably this is a criminal statute which imposes the heightened levels of proof of the criminal law, as well as the extraordinary procedural protections that attach to the process of indictment and conviction. On those occasions that Congress did specifically invoke Section 3, as with an 1870 voting rights statute, the disqualification clause was again tethered to the criminal laws to punish anyone who knowingly held an office for which he was not eligible under the insurrection clause (Blackman and Tillman: 2021). Any such criminal prosecution is a formidable barrier, as evidenced by the fact that Justice Department has not charged anyone with insurrection for the events of January 6 (Charlie Savage, How the Crime of Seditious Conspiracy Is Different From Insurrection and Treason, N.Y. Times, May 25, 2023)….

Unfortunately, Section 3 has no corresponding institutional pathway for systematically evaluating whether disqualification should be imposed on any individual. Left to local administration, with limited fact-finding by a single judge or state official, the risk is that Trump’s exclusion in Maine will beget a political tit-for-tat in which Biden is in turn excluded in a red state, or candidates of either party are pulled from the ballot in future. Down that path lies nothing good for democracy. Section 5 of the 14th Amendment might offer some reason to think that disqualification necessitates congressional action, unlike the requirement that the president be 35 years old, which appears in Article II, a provision already subject to institutional checks by the Congress and the Electoral College. The Supreme Court should be understandably leery of engaging in institutional backfilling. There’s an opportunity here for a unanimous Court decision that puts such powerful tools in the hands of the people’s representatives at the national level. If there’s not sufficient political will to revivify Section 3 for present day purposes, then it falls to the Court to create an interim stopgap in an already fraught election cycle.