A fine mess this is. The plain text of Section 3 of the Fourteenth Amendment disqualifies Donald Trump from holding any office under the United States or any state unless Congress by a two-thirds vote of each House removes the disqualification.
Fourteenth Amendment Equal Protection and Other Rights
Section 3 Disqualification from Holding Office
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. (Constitution Annotated)
Constitutional scholars J. Michael Luttig and Laurence Tribe explain that the Fourteenth Amendment ratified in 1868 “contains within it a protection against the dissolution of the republic by a treasonous president” (Luttig, Tribe, The Constitution Prohibits Trump). They and others argue that Section 3 is self-executing, “which means that congressional action is not required. Nor is it required that the former president be convicted of the criminal offense of an insurrection or rebellion against the United States under Title 18 USC 2383” (Luttig quoted in Ward, ‘The Opposite of Politics’).
Section 3 is silent on not inconsequential matter of how it is to be determined that someone who has previously taken an oath as a member of Congress, etc., has engaged in insurrection or rebellion against the Constitution or given aid or comfort to the enemies of it. Each state has different laws and procedures for determining whether a candidate is eligible for office. This paves the way for the leading candidate of one of the country’s two major political parties to be excluded from the primary ballot in some states but not in others and for the party’s nominee to be similarly excluded on the ballot in some but not all states in the general election. No one appears to think that would turn out well.
Luttig’s position is shared by other conservative scholars as well as by many of us to their left. He and Tribe specifically cite legal scholars William Baude and Michael Stokes Paulsen, both members of the conservative Federalist Society, whose article The Sweep and Force of Section Three is forthcoming in the University of Pennsylvania Law Review, Vol. 172. Many conservatives disagree, as do some centrists and liberals.
Trump and his team have advanced arguments that range from questionable to specious and sophistic. A lot of stuff has been thrown out in hope that something will stick: January 6 was not an insurrection, he was exercising free speech when he called on the crowd to overturn the election, he was acting in accordance with his oath of office when he tried to overturn the 2020 election on the basis of the false claim that it was rigged.
They contend that Section 3 is not self-executing, that Congress alone, not individual courts or election officials, can make a determination about its application, and that the section does not apply to the office of the presidency because it is not explicitly mentioned, unlike “members of Congress, presidential electors and ‘any office, civil or military, under the United States.’” The presidency, so the argument goes, “does not fall under ‘any office…under the United States’” (Montellaro, Cheney, Everything you need to know).
Republican political figures who would be disinclined to disqualify Trump from the ballot if he had made it to the Capitol himself and placed a noose around Mike Pence’s neck denounce Trump’s disqualification as undemocratic. The decision, they say, should be left to the voters. This line is echoed by journalists, analysts, and commentators of various stripes.
Section 3 contains not an iota, a smidgen, a scintilla of a suggestion that it is up to the voters to decide its applicability. The claim that it is undemocratic for anyone but the voters to decide is made with no sense of irony by savants who fancy themselves constitutional originalists. Voters do not have
a “democratic” right to pick whomever they want for president under our system of laws. They don’t: Not only does the Constitution impose age and residency requirements (among others) for anyone seeking the presidency, but each state has its own laws governing ballot eligibility, including feats like securing a minimum number of signatures from registered party members, filing fees, and deadlines. (Wehle, Trump Supporters’ Weak Case)
New York Times columnist and PBS NewsHour regular David Brooks enjoys a reputation as a cordial, affable conservative who gets along with liberals. He is uncharacteristically agitated by developments in Colorado and Maine. When asked by Amna Nawaz what should happen in response to legal efforts to keep Trump off the ballot, Brooks launched into a rant about a “highly educated cohort” in this country and elsewhere who “have created a hereditary meritocratic class…they have a lot of education. They now have a lot of cultural power. They control the media. They control the universities. They increasingly control the courts.”
“And then,” he fumed, as he pushed standard dashboard buttons of populist grievance:
you have a series of judges with their Ivy League law degrees who come in and say, sorry, we're taking your guy off the ballot? That would explode this country and, in my view, explode it under the most dubious possible circumstances, for kicking off for the Insurrection Act.
Has he been convicted of the—of offending the Insurrection Act? Has he been even charged with violating the Insurrection Act? No. And so, to me, it would look like and I think would be just an elite power grab to deny people their democratic rights. (Nawaz, Brooks and Capeheart on the political pressure)
A week later, on December 29, Geoff Bennett asked Brooks about the decision by the Maine secretary of state. Colorado was “pretty terrible,” he replied, then slammed Maine as
an even worse threat to democracy, some random Democratic politician throwing the Republican front-runner off the ballot for a crime, as you said in one of your questions, he's not even convicted of, he hasn't even been charged with.
The process should always be, voters decide, voters decide. It should be that doubly when we have an entire democratic system is [sic] under a crisis of authority and people don't trust it. They think the game is rigged. If suddenly you have random people throwing people off the ballot, they're going to think, oh, the game really is rigged. (Bennett, Brooks and Capeheart on states blocking)
Jonathan Capeheart could only respond, “My gosh, David,” as he paused to collect his thoughts before countering that he does not buy the idea “that this is a cabal of liberal elites attacking democracy, going after Donald Trump.”
Trump was not thrown off the ballot in Maine by some random person.
Under Maine law, it’s the secretary of state who is tasked with reviewing the challenge at a hearing. The petitioner—here, Donald Trump—gets to present evidence and defend the legitimacy of his primary petition. That happened in this case. Three voters challenged his eligibility, Trump’s lawyers presented his case in response, and, following a hearing on December 15, Bellows issued her decision pursuant to her statutory authority.
Under the same law, the decision is reviewable in the Maine Superior Court. On Tuesday, Trump filed his appeal pursuant to that law. That is due process at work. The Superior Court’s decision can be appealed to that state’s higher court, and then to the highest court in that state, and then to the U.S. Supreme Court. Again, ample due process for Donald Trump. (Wehle, Trump Supporters’ Weak Case)
Conservative shibboleths about educated elites, hereditary meritocracy, Ivy League judges, and the rest aside, the upshot of Brooks’s argument is that the Constitution should be ignored in the case of Donald Trump’s eligibility to hold the office of president. I am neither a constitutional orginalist nor a strict constructionist, but it takes some fancy footwork to dance around the words on the page in Section 3. Brooks is no Fred Astaire. The one plausible claim he makes is that the Maine precedent will lead to Republicans throwing people of the ballot elsewhere.
Law professor and former assistant US attorney Kim Wehle puts to rest the contention that “only a criminal jury verdict that Trump engaged in an insurrection beyond a reasonable doubt could legally keep him from applying for the job as president, a notion that loosely throws around the term ‘due process.’”
This is another political argument rather than a serious legal one. Constitutional due process only applies if the outcome means the government could take away someone’s life, liberty, or property, which denying what’s effectively a job application for president doesn’t do. (The Huge Legal Questions)
Alex Kasparak, writing at Snopes, points out the precedent that of the eight people disqualified under the Fourteenth Amendment, “at least five were not convicted of any crime” (‘Engaged in Insurrection’).
The common wisdom is that ultimately the Supreme Court will decide. I expect the court to fashion a rationale that will allow Trump to remain on the ballot. Rightly or wrongly, that will settle the matter. It will be time to focus on the November campaign to elect Biden and other Democrats up and down the ballot, and to prepare for restoration of the Trump presidency through election or by other means if that comes to pass. I wish I had something more hopeful to offer.
Keep the faith. Stand with Ukraine. yr obdt svt
References and Related Reading
Geoff Bennett, Brooks and Capehart on states blocking Trump from GOP primary ballot, PBS NewsHour, December 29, 2023
Alex Kasprak, 'Engaged in Insurrection': Trump, SCOTUS, and the 14th Amendment, Explained, Snopes, December 29, 2023
J. Michael Luttig, Laurence Tribe, The Constitution Prohibits Trump From Ever Being President Again, The Atlantic, August 19, 2023
Zach Montellaro, Kyle Cheney, Everything you need to know about Trump and the 14th Amendment, Politico, December 28, 2023
Amna Nawaz, Brooks and Capehart on the political pressure of the overwhelmed immigration system, PBS NewsHour, December 22, 2023
Ian Ward, ‘The Opposite of Politics’: A Conservative Legal Scholar Says Kicking Trump Off the Ballot Is ‘Unassailable,’ Politico, December 21, 2023
Kim Wehle, The Huge Legal Questions Ahead in 2024, The Bulwark, January 2, 2024
Kim Wehle, Trump Supporters’ Weak Case Against Kicking Him Off the Ballot, The Bulwark, January 3, 2024
I wish you had something more hopeful to offer as well, but I continue to appreciate your analysis of what is a truly awful state of affairs at so many levels of the conservative right in this country. It is not universal, not quite, but it is quite pervasive and troubling, to say the least.
Keep up the good fight, David!