In the next battle over the disqualification clause of the Fourteenth Amendment, all eyes will be on the acting secretary of the Pennsylvania commonwealth, Leigh Chapman. She is being asked to disqualify the front-runner for the Republican nomination for governor on the basis of a poison pen letter — in this case, signed — from an anti-Trump activist group called Free Speech for People. 

The group contends that the candidate, Douglas Mastriano, currently a state senator, engaged “in an insurrection against the United States” by questioning the results of the November election and by his actions on January 6. Free Speech’s effort in the Keystone State marks an escalation of its campaign to disqualify candidates for federal office to now bar a candidate for chief executive of a state as well. 

Free Speech is deploying the Disqualification Clause, designed to deny Civil War rebels a path back to office, in a context unanticipated by those who drafted the measure. This campaign diminishes the Civil War by suggesting that somehow it and the January 6 protests were comparable. It also traduces the concept of due process, in that Senator Mastriano has not been charged, let alone convicted, of so much as a misdemeanor. 

The circumstances suggest that political fortunes, rather than constitutional principles, are top of mind. Mr. Mastriano, a Trump supporter, served his country as an army captain and Pennsylvania as a legislator. Polls show him leading the field in next month’s Republican primary. Free Speech alleges that he “broke an oath to support the Constitution” by engaging in an insurrection, but the charge is light on legal justification.

The courts have yet to determine that what happened on January 6 was an insurrection, though President Biden and the Democrats use the word to describe that day’s events. The Disqualification Clause does not specify what body is to determine whether an insurrection has taken place. Yet given the scale of the disability that can be laid on a public figure under the Fourteenth Amendment, the accused deserve some kind of due process before being run out of public life. 

Had Mr. Mastriano committed insurrection, one would think he’d be under investigation by the Feds, who have already arrested more than 700 persons. Yet Justice has framed the most serious January 6 charges as “corruptly obstructing, influencing, or impeding an official proceeding” and conspiracy — not insurrection. The January 6 committee has subpoenaed Mr. Mastriano. He has declined to say whether he complied.

A similar argument applies to other candidates fighting for their place on ballots amidst disqualification attempts by Free Speech and others. These include Senator Johnson of Wisconsin and Representatives Madison Cawthorn and Marjorie Taylor Greene (who just lost a round in federal court). To us, it is shocking to see the Fourteenth Amendment being wielded in the partisan battle for control of the Congress.

Legal questions on the use of the Fourteenth Amendment are proliferating as the effort to disqualify candidates as insurrectionists metastasizes. There is no doubt that the Constitution applies to all officers, legislators, and judges at the federal and state level. If people like Senator Mastriano are run out of office for insurrection, though, can the backers of the other riots that have recently racked our country be far behind?

We’re thinking of the violent anti-racism protests, which centered not on the Capitol but on cities around the country. In Portland, Oregon, protesters fired incendiary devices in an effort to disrupt a vital federal site, namely the Immigration and Customs Enforcement building. We don’t favor going after those perpetrators with the 14th Amendment, either, but suggest only that what’s good for the goose is good for the gander.