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.

* 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.