DEMOCRACY WATCHWhy Treason Is a Key Topic in Trump’s 14th Amendment Appeal to the Supreme Court
Someone who gives a weapon to a person knowing they intended to commit treason is a traitor, not an accessory to treason. Treason is treason, and a person either engages in treason or does not. In the Constitution’s Article III, and in the 14th Amendment, there are two ways a person can commit treason: by “levying war” – which in the 14th Amendment is replaced with “engaged in insurrection or rebellion” – or by giving “aid and comfort” to people determined to be “enemies” of the United States. The people Trump urged to march on the Capitol and said kind words to may have been enemies of democracy, but as American citizens, constitutionally speaking, they could not be enemies of the United States. Rather, they were insurrectionists, and the constitutional law of treason does not differentiate between supporting them and being among them.
As oral arguments approach in former President Donald Trump’s U.S. Supreme Court appeal of a Colorado Supreme Court decision, many friend-of-the-court briefs in the case bring up a subject not much found in public discussion of the case: treason.
Trump is appealing a Colorado ruling that the 14th Amendment bars him from holding office because he engaged in insurrection before, during and after Jan. 6, 2021. That decision – and several others in states around the nation, some agreeing and some disagreeing with Colorado’s conclusion – have roots in the Constitution’s definition of treason, and Congress’ intent to block traitors from serving in the government.
As a scholar of constitutional law, I have submitted legal briefs in several of those cases, explaining the history of the 14th Amendment’s drafting and passage, and discussing what Republicans immediately after the Civil War hoped to attain from constitutional reform.
What Did Congress Intend?
Section 3 of the 14th Amendment reads:
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.
When Congress was drafting Section 3 of the 14th Amendment the year after the Civil War ended, the purpose of that provision was clear: to prevent people from serving in the government if they had used force to resist or overthrow the United States. To Congress, those actions constituted treason.
In drafting the language, Congress drew inspiration from the framers of the Constitution that was ratified from 1787 to 1789. Article III of the Constitution declares that there are two ways to commit treason against the United States: “levying War against (the U.S.), or in adhering to (its) Enemies, giving them Aid and Comfort.”
