The movement to bar President Trump from the White House on the basis of Section Three of the 14th Amendment could soon face a defining question: Does the disqualification clause apply to the commander-in-chief?

That interpretive conundrum is growing in urgency as courts — most recently, one in Colorado — begin to hear lawsuits to block Mr. Trump from the ballot. One former federal judge, Michael Luttig, opined on MSNBC that “this is one of the most fundamental questions that could ever be decided under our Constitution. And it will be decided by the Supreme Court sooner rather than later.”

Section Three, a product of Reconstruction, applies to anyone who has previously taken an oath of office “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.” This was originally meant to refer to former members of the Confederacy in the 1860s.

If someone in one of those positions subsequently engages in “insurrection or rebellion” or gives “aid or comfort” to those who do so, they are banned from serving as 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.”

Amidst the syntactical thicket, one crucial question surfaces: Is the president an “officer of the United States”? If he is, then the ban on holding “any office, civil or military,” would appear to follow a finding that he engaged in an insurrection or rebellion. If he is not an officer, then the clause’s strictures would appear not to apply. 

A case from 1871, United States v. Powell, out of North Carolina, provides a snapshot of how the amendment was read just three years after it was ratified. It concerns a constable in the Tar Heel State who subsequently served as a justice of the peace in the Confederacy and paid a substitute to fight for him in the rebel army. 

The jurists reckoned that if the constable’s engagement with the Confederate cause was “prompted by a well grounded fear of great bodily harm and the result of force, which the defendant was neither able to escape nor resist” — meaning under duress — then he should not be disqualified. The key factor is whether a “want of sympathy with the insurrectionary movement” can be detected.

Merely serving as a justice of the peace under the Confederacy was not enough to disqualify because it “was absolutely necessary that during that commotion there should have been some to preserve order and to restrain the vicious and licentious, who, without this, would have taken advantage of the turmoil to pillage and destroy friend and foe alike.” 

The court found that while Section Three is “primitive in its character, it was passed at a time when Congress was endeavoring to restore order and government throughout the rebellious states.” It reflected the belief that “those who had been once trusted to support the power of the United States, and proved false to the trust reposed, ought not, as a class, to be entrusted with power again.”

In theory, though Section Three is “broad enough to embrace every officer in the state,” there “can be no office which is not either legislative, judicial, or executive; and there can be no question, it seems to the court, but that, unless it be possible to find some external reasons for giving this broad language a narrower meaning, it embraces every office in the state.”

Fast-forward to the present. Attorney General Mukasey writes in the Wall Street Journal that the “use of the term ‘officer of the United States’ in other constitutional provisions shows that it refers only to appointed officials, not to elected ones.” The Constitution ordains that the president “shall Commission all the Officers of the United States,” not that he is one. 

The Sun spoke to a law professor who takes the position that the president is not an “officer of the United States,” and thus is excluded from disqualification, Joshua Blackman. He notes that there is “only one president in America who has “never served in government before,” Mr. Trump. This means that every previous chief executive would have been covered by the clause.   

In Mr. Blackman’s estimation, the 14th Amendment “says nothing” about Mr. Trump. Its drafters, he reckons, had the recently slain Abraham Lincoln on their minds, and could not have anticipated “every bad outcome,” like the events of January 6, 2021. He adds that the arch-insurrectionist, Jefferson Davis, had been a senator, and so was covered by the clause.