On September 12, 2023, former Minnesota Secretary of State Joan Growe, former Minnesota Supreme Court Justice Paul Anderson, and others filed a petition in the Minnesota Supreme Court asking that Donald Trump be prohibited from appearing as a candidate on the Minnesota ballot due to his disqualification for office under Section Three of the Fourteenth Amendment.

Section Three of the Fourteenth Amendment disqualifies anyone “having previously taken an oath . . . to support the Constitution of the United States” who then “engaged in insurrection or rebellion against the same, or g[ave] aid or comfort to enemies thereof” from holding state or federal office.

On September 20, 2023, the Minnesota Supreme Court asked the parties to brief, among other things, “whether Section 3 of the Fourteenth Amendment operates to preclude a person from being President of the United States” and “whether Section 3 of the Fourteenth Amendment applies to a person who has previously taken an oath as President of the United States.”  CAC filed a request to participate as amicus curiae, so that it could file a brief explaining why the text and history of Section Three demonstrate that Section 3 of the Fourteenth Amendment “operates to preclude a person from being President of the United States” and “applies to a person who has previously taken an oath as President of the United States.” CAC filed in the Minnesota Supreme Court on October 6, 2023.

Our brief made three principal points.  First, when the Fourteenth Amendment was adopted, the presidency fell within the normal and ordinary meaning of an “office . . . under the United States,” and the president would have been understood to have taken an oath as an “officer of the United States.”

Dictionaries from the time of the drafting and ratification of the Fourteenth Amendment show that the term “office” would have been understood to include the president, and the text of the Constitution itself refers to the presidency as an “office.” Before, during, and shortly after the Civil War, presidents wrote that they considered themselves “officers”; lawmakers, judges, and executive branch officials repeatedly referred to the president as an “officer of the Government”; and the Framers of Section Three often referred to the president as holding an “office” and serving as an “officer” of the United States.

Second, this broad text makes sense given the Framers’ plan for the Amendment. The Framers of the Fourteenth Amendment sought to prohibit officeholders who betrayed their country from holding political power again, and repeatedly emphasized that Section Three applied to anyone who violated the oath they took to support the Constitution. As various statements from the legislative debates make clear, the Framers concluded that this broad goal would best be served by enacting a provision that would prevent former officials who had betrayed the country from assuming the office of the presidency.

Third, in the years following the passage of the Fourteenth Amendment, courts consistently defined the term “officer” to have a broad scope, specifying that the relevant test for whether an individual was an “officer” within the reach of Section Three was whether or not the individual swore an oath of office. The president does and is thus an “officer” under this definition.

In sum, an interpretation of Section Three that exempts presidents and the presidency would depart from the provision’s clear text and be at odds with its history.