– [Narrator] Colorado and Maine have ruled that Donald Trump does
not qualify for the ballot because of his involvement in January 6th. While these states have
either dismissed similar cases or still have them pending, now Trump has asked the
Supreme Court to weigh in. The case hinges on this part of the 14th Amendment,
Section 3, that says, "No person shall hold any office who having previously taken an oath, have engaged in
insurrection or rebellion." It seems pretty straightforward, but scholars say this language
raises a lot of questions.
– Does that apply to the
presidents of the United States? What does it mean to have
engaged in insurrection or rebellion against the United States, and how do you determine whether someone has done that or not? – [Narrator] Here's the
history behind this amendment, how it's been used in the past, and what questions it could
bring to the Supreme Court. – The 14th Amendment is the
most important amendment ever added to the Constitution, or certainly since the Bill of Rights. You might say that it's an attempt to put into the Constitution
some of the major results of the Civil War.
– [Narrator] This is Eric Foner. He's written a lot on the 14th Amendment and the time period in
which it was created. He is- – The sort of specialist on the Civil War and Reconstruction period. – [Narrator] One of his
books was even cited in the Colorado Supreme Court's ruling. – My publisher was ecstatic. They really think it's gonna
lead to a lot of sales, which I'm not so sure about. – [Narrator] And in that
book, he details the origins of the 14th Amendment, the one that established
birthright citizenship, equal protection under the law, how representatives are apportioned, oddly, the debt ceiling,
but also this, Section 3, barring Confederates who
served from serving again. – Most Northern Republicans, the victorious people in the Civil War, thought that the 14th Amendment
was absolutely essential to making sure that the
victory in the Civil War of the nation was consolidated and that the former Confederates didn't come into power again. I think white Southerners saw
Section 3 as a punishment. – [Narrator] And while these sections were fiercely debated in Congress and throughout the country- – [Eric] There's almost
no debate about Section 3. In fact, the debate about Section 3 was, should the penalty be that
they could not hold office or should the penalty be that these folks could not have the right to vote? – [Narrator] They eventually agreed on just barring from office.
At first, it was formally invoked just a few times to remove Confederates. – Subsequently in American history, on occasion it was enforced,
but very, very rarely. – [Narrator] Most notably
is Victor L. Berger, a congressman and co-founder
of the Socialist Party. He was elected in 1918 after
being indicted for espionage. – Now by the way, the Espionage
Act, it's important to say, had nothing to do with espionage
the way we understand it.
It was just if you oppose the war, they threw you in jail. – [Narrator] Berger did oppose the war, so Congress invoked Section
3 and refused to seat him. The Supreme Court went on to overturn his espionage conviction, and then he was seated in Congress and eventually served two more terms. – They said, "Well, if there's no evidence that he did give aid or comfort to the enemies of the United States now, so therefore we can't deny
him the right to hold office." – [Narrator] So that
raises the first questions for the Supreme Court.
What qualifies as an insurrection today? – How do we know someone did that? Are they gonna get a trial by jury? Is it just an administrative
thing where some committee, well, look, here's the
film and you're in there. Is that a judicial proceeding? Is that a political proceeding? – [Narrator] And does it
require a criminal conviction? Trump is charged with a lot of things in the January 6th case, but insurrection isn't one of them, and the trial hasn't even begun.
One person involved in
January 6th has been unseated due to Section 3. A New Mexico County Commissioner, so an officer who took an oath, was convicted of
trespassing on January 6th and served time in jail. – It's a great day for America. – [Narrator] He was removed
from office under Section 3, but the judge specifically mentioned that he would've been removed regardless of whether he'd been
convicted of any crime. Another important question, does Section 3 even
apply to the president? – Senator, Representative in Congress, elector, for president,
for vice president, or civil or military office
under the United States or under any state. Is the president an officer
under the United States? Doesn't mention the president, but it doesn't exclude
the president either. – [Narrator] Another
question, who enforces this? In these past examples,
it was either enforced by the judiciary or Congress
decided to not seat someone, but can it be enforced on a ballot? – This is not barring you from running.
It is barring you from winning, I guess, from holding office. There's not a jurisprudence about this. – [Narrator] And trying to judge the modern-day interpretation of the original intent of
the amendment is tricky. – If you are searching for
the one original intent or the one original meaning, you are never gonna get anywhere, because there was so much dissension, there were disagreement,
there were compromises. – [Narrator] So the lack of
specificity in the amendment and the scarcity of case
law since it was ratified means there's a lot of
ways the Supreme Court could interpret this law and a lot of questions for them to answer. (soft music).