https://www.senate.gov/civics/constitution_item/constitution.htm#amendments
Section 3.
No person shall be 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, who, having previously taken an oath, 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, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
- Amendment XIV, Section 3 (1868)
The 14th Amendment to the US Constitution is one of the most litigated and contested parts of the Constitution. Since it's rather riotous passing in 1868, in the reconstruction era, it has become one of the more heralded parts and has become the cornerstone for such cases as Brown v. Board of Education (1954), Roe v. Wade (1973), Bush v. Gore (2000), and Obergefell v. Hodges (2015), just to name a famous short list. However, all of these cases centre on the litigation of the first section of Amendment XIV.
As far as I am aware, Section 3 was only really used in the wake of the Civil War and even then for the most senior officials of the Confederate States of America. The Amnesty Act of 1872 further removed penalties relating to XIV for most people and Congress itself lifted the disqualifications from both Confederate general Robert E. Lee and Confederate president Jefferson Davis in 1975 and 1978 respectively.
The only other time that Amendment XIV appears to have been invoked was to bar Representative from Wisconsin Victor L. Berger from taking a seat in the House, after he had published anti-interventionist views during WW1 and was convicted of violating the Espionage Act. This was later overturned by Berger v. United States (1921) and he would go on to win three terms in the office.
Section 3, being only invoked once in 153 years would have remained a dusty appendix to the Constitution had it not been for the actions of one Donald J Trump. The events of one year ago, suddenly brought it back into the light. On January 12, 2021, House Speaker Nancy Pelosi, formally asked Congress for their views on Amendment XIV, Section 3. Here is where the story ends.
Was January 6 an "insurrection"? What even is an "insurrection"? Roaming around the Congress building and threatening to kill the Speaker and hang the Vice-President sounds like an insurrection. The breaking and entering of the building is certainly violent. Was this whole thing something else though?
When Mr Trump stood on the platform and promised to walk up the mall with the protestors, is that "giving aid" or "comfort to the enemies" of the United States? When Mr Trump made his speech saying "We can't play into the hands of these people. We have to have peace. So go home. We love you," is that "giving aid" or "comfort to the enemies" of the United States?
Amendment XIV gives no direction about who has the power to interpret, enforce or invoke it. It gives no indication about how to challenge it other than if someone has been barred from office as result of its operation then Congress may by a vote of two-thirds of each House, remove such disability. It is little wonder that apart from preliminary discussions which took place in the House in the fortnight after the January 6 incident, that nothing more was actually decided with regards this Amendment.
This is a problem which courts and readers of the law, consistently find with the US Constitution. As it is somewhat conservatively written, it almost always refuses to nail anything down. As it refuses to nail anything down, this always leads to labyrinthine machinations to try to resolve anything.
The other problem is that as things like impeachment and appointment of judges are political processes from the outset, the idea of impartial justice and impartiality of the law is practically non-existent. The United States doesn't have the idea of equity at the centre of its court system but rather, it has the idea of the individual making claims at the centre.
Assuming that January 6 2021 was in fact an insurrection, then the people who would have to decide upon the consequences of its operation, would be the very people who were inside the Congress building when it was attacked. Half of those people would vote against Mr Trump in just pure spite; others are beholden to him as the de facto leader of their party, despite him not even being in any public office anymore. Immediately this is a partisan political process which would never even consider things like equity or justice.
Even if the Congress did manage to pass a simple resolution which barred Mr Trump from running for the office of President again, he'd more than likely use that as a chance to start another media circus and launch another tilt for the White House. I would think that Congress already knows this and that's why they'd rather not do anything. Apathy is the best policy in a system where action causes idiocy.
For this reason, even if January 6 2021 was an insurrection by a riotous mob and even if Mr Trump gave aid and comfort to the mob, either beforehand or after the event, under Amendment XIV, Section 3, it is virtually impossible to make anything stick. Probably it was always meant to be an act for show as barring members from the House of Representatives of 13 states in the Union would have lead to more unrest. The whole reconstruction era was already fraught with tension and the operation of this section of the Constitution wouldn't have helped matters; so it didn't and when it might have been useful in the twenty-first century it still doesn't.
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