The Supreme Court is set to tackle the complex issue of Section 3 of the 14th Amendment as former President Donald Trump's disqualification cases unfold in Colorado and Maine. This obscure provision of the amendment limits the disqualification of individuals who have taken an oath as a United States officeholder. However, the language and intent of Section 3 have raised questions about its applicability in modern times.

Section 3's prohibition on election to high office for individuals involved in insurrection or aiding national enemies seems peculiar when viewed outside the context of the Civil War. The restriction focuses on previous government service rather than directly addressing the acts committed. This has raised concerns about its fairness, as it allows some individuals who may have committed severe acts of insurrection to hold office while disqualifying others based on their past government positions.

The historical context of Section 3 sheds light on its purpose. During the time of enactment, the political and officer corps of the Confederacy consisted of officials who had governed before secession and subsequently led the rebellion. Similar restrictions on political ambition exist in other countries, aiming to prevent the resurgence of antidemocratic ideologies. The terms of the prohibition are typically context-driven and overseen by judicial review.

The challenge now is how to define "engaging in insurrection or rebellion" and determine the significance of various formulations of oaths of office. Section 3 fails to provide clear definitions or guidelines for enforcement. It relies on an earlier wartime statute from 1862, the Insurrection Act, which carries the heightened standards of proof and procedural protections of criminal law. Notably, the Justice Department has not charged anyone with insurrection for the events of January 6, highlighting the significant barriers involved in pursuing criminal prosecution under Section 3.

Individual states have invoked Section 3 to disqualify Trump, as seen in the split decision of the Colorado Supreme Court and the unilateral action taken by the Maine Secretary of State. The lack of civil protections in these state-level invocations raises concerns about potential political misuse of Section 3 in the future.

One potential solution that the Supreme Court may consider is interpreting Section 3 within the larger context of the 14th Amendment and requiring congressional action under Section 5. Similar to how due process and equal protection require enabling legislation for enforcement, the designated class of disqualified individuals under Section 3 might require Congress to act. Previous congressional actions have removed the disqualification for individuals covered by Section 3, underscoring the need for legislative action to address evolving circumstances.

The article emphasizes that laws like Section 3 cannot linger as invitations for mischief once their historical purpose has passed. Drawing upon examples from Poland and Latvia, where post-communist laws were later used for political exclusion, it highlights the need for caution in interpreting and applying such restrictive provisions.

The Brazilian response to the 2023 uprising, wherein the responsible individuals were swiftly tried by a specialized tribunal, offers a contrasting approach to handling similar situations. The lack of an institutional mechanism for systematically evaluating disqualification under Section 3 raises concerns about potential political manipulation.

The Supreme Court faces the task of balancing the need for clarity and fairness in interpreting Section 3. It may opt for a unanimous decision that empowers Congress to address disqualification or provide an interim solution in the current election cycle. As the nation's highest court, it bears the responsibility to safeguard democracy and ensure that Section 3's application aligns with contemporary needs and values.