Republicans could win the White House in 2024, but not with Donald Trump. At least, not legally. Many constitutional scholars have made this point, most recently former federal appellate judge J. Michael Luttig and Harvard Law School professor Laurence H. Tribe, writing together in The Atlantic. Judge Luttig is a prominent conservative, and he joins a chorus of other conservatives, along with thinkers from further left on the political spectrum, who consider Trump disqualified under the Fourteenth Amendment. I can’t improve on the analysis offered by these constitutional scholars. But I can offer a brief summary, including historical context.
In 1868 court filings, Jefferson Davis himself, former president of the Confederacy, acknowledged that the 14th Amendment automatically barred ex-Confederates from office, without trial.*
Section 3 of the Fourteenth Amendment to the U.S. Constitution provides:
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.
(Emphasis added.) The provision disqualifies Donald Trump because he swore to uphold the Constitution on the day of his inauguration, in 2017. And on January 6, 2021, he launched and supported an insurrection. Congress could lift the ban by a two-thirds vote of each house, but the odds are vanishingly small.
Section 3 is automatic, requiring neither conviction nor a court decision.
The 14th Amendment was ratified in the wake of the U.S. Civil War, in 1868. At the time, Section 3 served to bar former Confederate officials and soldiers from office. These men were automatically disqualified, without conviction or even a criminal or civil trial.
Therefore, it would not matter if Trump escaped conviction in his various prosecutions. In fact, the Amendment does not require a court decision of any kind. Trump is already disqualified.
That doesn’t mean the courts play no role.
A court could judge a dispute about whether Trump became disqualified on January 6, 2021. It’s a subtle distinction, but that’s not the same as a requirement that the court “convict” Trump or otherwise rule against him to disqualify him.
Most likely, someone would sue a state official for refusing to put Trump’s name on the ballot – or for agreeing to do so. The argument would surround Trump’s inevitable claim that January 6 was not “an insurrection or rebellion” – and his claim not to have participated or to have “given aid or comfort” to the insurrectionists.
That case could lead to a final decision on Trump. But there’s a small chance the courts would let him appear on the ballot without deciding whether he’s disqualified – e.g. because the 14th Amendment says nothing about who can run for office. If so, the issue would return to the courts if Trump won the 2024 election, probably in a case about whether state and federal officials should recognize his electors.
However the issue reaches the courts, appeals would quickly bring it before the Supreme Court. Some might doubt the neutrality of today’s politicized, Republican-dominated high court. But this is not a clear left-vs.-right battle, as evidenced by Judge Luttig and the other conservatives asserting Trump’s disqualification. And the justices would probably recognize that this is the most important decision of their careers – and that history will judge them for this choice above all others. I think it’s reasonable to predict that they would hold Trump disqualified. But if I’ve guessed wrong about the Supreme Court, it wouldn’t be the first time.
Follow the link here for more on this topic: “Let’s correct some errors about disqualification and Trump.”
* See, Connally, C. Ellen (2009) “The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis,” Akron Law Rev.: Vol. 42 : Iss. 4 , Article 12.
© 2023 by David W. Tollen. All rights reserved.
Mr. Tollen –
Was there no formal process in place after the Civil War to identify specific former Confederates had seceded from the Union and served in leadership roles for the Confederacy, this marking them as disqualified from holding office?
Could any State official then simply assert that any Southerner they didn’t like, or who said something attacking the Republican Party, was an insurrectionist?
The idea that someone can automatically be labeled an insurrectionist without a formal process, simply because the opposing Party says they are an insurrectionist, is surely not supported by the US Constitution. If it were, how is that any kind of rule of law? That would look more like just rule by the party in power, using it’s political (not constitutional) power to declare their opponents to be enemies of the state.
Please share more of your reasoning here, since this post has been influential, and I have been unable to defend your argument against other constitutional scholars who disagree with you on this point.
Sincerely,
Michael Pisapia, PhD
Michael, thanks for a good quesiton. Yes, under the 14th Amendment, state officials could abuse power and exclude a Southerner (or Northerner) they didn’t like. And the remedy was the same as today: a lawsuit. In other words, disqualification was self-executing, and it was the duty of executive officials to recoginze it. But they’d have to defend their decision in court if someone (with standing) sued.
And in case you have any doubt, look at the actual history. Lots of Confederates were excluded without trial. They were excluded because of governors refusing to certify election victors, the U.S. House and Senate refusing to seat winners, etc.
Nor is this in unusual. A cop can give you a ticket – just because he/she doesn’t like you. A government agency can refuse funds owed to your organization, just because the people running it don’t like what you stand for. An IRS agent can audit you or require huge fines because of personal dislike or prejudice. Those are abuses of power, and the rememdy lies with the courts (assuming you can’t get the person’s supervisor to reverse the choice).
It works the same with presidential qualifications, of course. If you don’t get enough signatures under state law, the secretary of state won’t put you on the ballot – no trial necessary. But if you think the secretary got it wrong, you can sue. Other office qualifications work the same. Arnold Schwarzenegger wanted to run for President but was excluded because he wasn’t born a citizen – which means you can’t be President under Article II of the Constitution. No one had to establish Schwarzenegger’s foreign birth in court. He was automatically excluded. And if he’d bothered to run, secretaries of state in the various states would have excluded him, without trial. But if it turned out he really was born a citizen, he could have won a lawuit against those secretaries of state.
So the CA secretary of state got it wrong, punting her responsibility to the courts – either out of ignorance or a cowardly desire to avoid controversy. Whether she believes Trump disqualified or not, she was required to make a choice. (Someone will sue her, and the CA decision will still end up before the courts.)
The Maine secretary of state did her job. She recognized that it’s her duty to decide who goes on the ballot. That doesn’t mean she got the law right (though I think she did). Trump can sue her and try to get the courts to reverse her decision.
That’s how our society works and always has.