"Kerry and 14th Amendment, section 3:Is John Kerry disqualified from being President by section 3 of the 14th Amendment? Several readers — starting with Pierce Wetter, with whom I've corresponded on the subject, and who has just blogged about it, referring partly to our correspondence — have e-mailed me to ask this question, and I noticed more chatter about it on the Web. And the question turns out to be more interesting than it at first seems (though I think the answer ends up being pretty clear).

Here's what section 3 says:

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.

Kerry, the argument goes, gave "aid or comfort" to the North Vietnamese by opposing the war, and by apparently meeting with a North Vietnamese peace delegation in Paris in 1971. One or both of these things (probably the former much more than the latter) may have emboldened our enemies and sapped our soldiers' morale, thus giving the enemy aid or comfort. Kerry had previously taken an oath to support the Constitution when an officer of the United States (military officers, including lieutenants, definitely count). The Presidency is an "office" (see, e.g., art. II, sec. 1, cl. 5.) Therefore, the argument concludes, Kerry is disqualified.

1. The bottom line: I think this argument is unsound, because section 3 can't possibly apply to all people whose actions end up helping the enemy. During the Civil War itself, for instance, which prompted section 3, many government officials spoke out in favor of the North's agreeing to peace on terms that are favorable to the South. That too would have aided the South — quite possibly much more than Kerry's statements, if the speaker was a prominent Northern politician. But I'm fairly certain that section 3 wasn't understood as disqualifying them; "aid or comfort" must have been understood to mean actions intended to help the enemy that actually gave it aid, and not simply actions that had the effect of helping the enemy but that were motivated solely by a sincere desire to help the United States save lives or prevent the United States from acting immorally, rather than by a desire to help the enemy win."
http://volokh.com/archives/archive_2004_10_14.shtml#1098295109