A protester holds a sign outside Trump Tower in Manhattan to demand state governments to disqualify former President Trump from appearing on ballots in 2024 under the 14th Amendment. The group stated that secretaries of state are empowered by the 14th Amendment to bar Trump from running for office because of his incitement of the January 6, 2021, Capitol attack. (Erik McGregor/ LightRocket via Getty Images)
Donald Trump’s engagement in insurrection and providing aid and comfort to insurrectionists disqualify him from holding the office of U.S. President again. The Fourteenth Amendment, Section 3 of the U.S. Constitution, states the basis for this disqualification.
| 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. |
The Congress added this Amendment to the U.S. Constitution following the Civil War. Congress believed that people who had broken their sworn oath to the Constitution should not be allowed to hold office in another political office requiring an oath to the Constitution. Although the insurrectionists to which this disqualification applied were former soldiers or officials of the Confederacy, they were neither tried nor convicted for their service.
Some observers contend that the law, as codified in the U.S. Constitution, should be ignored because the voters should decide who should be President. But voters, through their elected representatives, decided that insurrectionists who have broken their oaths should be disqualified from holding political office. To ignore the disqualification for insurrection directed by the Fourteenth Amendment is to ignore the rule of law. As the U.S. struggles to maintain the rule of law in the face of some citizens who have openly turned their back on it, government officials cannot appear to ignore a law fundamental to democracy. Snubbing our laws also shows the world that we do not respect them, making it difficult for us to propound following the rule of law for other countries.
Observers also argue that this disqualification should not apply to Trump because he has not been convicted or even charged with insurrection. Although using criteria for disqualification from holding the Presidency does not rely on a judicial determination, the courts will weigh in on whether Trump is qualified. Just as voters did not have the opportunity to elect Barak Obama to a third term because he was disqualified from holding office for more than two terms, voters should not have the opportunity to vote for an insurrectionist. Voters decided that Trump, after one term as President, should not be President again. Trump and his followers showed their disdain for the outcome of that election and turned to force and deception to overturn it. Some of the same observers who call for ignoring Trump’s insurrection also note that he should not be disqualified because his supporters may engage in further violence!
Trump and his supporters now argue that they did not engage in insurrection. Instead, they say that they were peacefully demonstrating. The evidence of insurrection, however, exists not only in what happened on January 6 but also in the planning that occurred in the weeks leading up to January 6 and Trump’s refusal to call for the insurrectionists to stop their violence. On January 6, Trump called for his followers to prevent the transfer of the Presidency to Joe Biden. Moreover, after January 6, as the Department of Justice sought to hold insurrectionists accountable, Trump gave aid and comfort to them by promising to pardon those who have been tried and convicted of crimes related to the insurrection if elected.
Most legal scholars who have looked at the evidence already presented by the House January 6 Committee are convinced that Trump is an insurrectionist. Moreover, the legal analyses of prominent jurists, including conservatives, have found no wriggle room in the textual and originalist interpretation of the Fourteenth Amendment, Section 3. Because the six conservative justices have all justified their extreme decisions on some form of textualism and originalism, they may find it difficult to ignore its dictates. If the conservative justices appear to disregard the judicial philosophy undergirding their decisions, then the Supreme Court will lose some of its legitimacy. Alternatively, if the Supreme Court avoids the disqualification question and decides on procedural grounds, the court will also lose legitimacy.
Besides being what the Constitution calls for, disqualifying Trump may be a way to reduce anger and remedy some of the illegitimacy now facing the court. Trump can petition Congress to overturn his disqualification as prescribed in Section 3. And there is ample reason to think such an application would succeed. Although Republicans hold the House by two votes and are in the minority in the Senate by one vote, many Democrats could be willing to support removing the disability of disqualification. First, some Democrats think Trump should be on the ballot. Many Democrats believe that removing Trump from the ballot will outrage his voters. They believe the only way to defeat Trump’s influence in American politics convincingly is to beat him at the polls. They should be expected to vote to remove Trump’s disability. Second, other Democrats believe that Trump would be the easiest Republican for Biden to defeat. They also can be expected to vote to remove Trump’s disability. Third, most Democrats and Republicans want the House to reach a deal on funding for the Ukraine, Israel, and the U.S. budget to prevent a government shutdown. Removing Trump’s disability could be the basis for the agreement that hardcore Trump supporters would want.
Disqualifying Trump could have less impact on Trump than on the Supreme Court. Because Congress can remove Trump’s disability, the Supreme Court may stand to lose the most. But the Supreme Court is unlikely to uphold the law and disqualify Trump on substantive grounds. The six conservative justices have shown that they view the result of judicial decision-making to be a way of implementing Republican policies.
Some observers contend that the law, as codified in the U.S. Constitution, should be ignored because the voters should decide who should be President. But voters, through their elected representatives, decided that insurrectionists who have broken their oaths should be disqualified from holding political office. To ignore the disqualification for insurrection directed by the Fourteenth Amendment is to ignore the rule of law. As the U.S. struggles to maintain the rule of law in the face of some citizens who have openly turned their back on it, government officials cannot appear to ignore a law fundamental to democracy. Snubbing our laws also shows the world that we do not respect them, making it difficult for us to propound following the rule of law for other countries.
Observers also argue that this disqualification should not apply to Trump because he has not been convicted or even charged with insurrection. Although using criteria for disqualification from holding the Presidency does not rely on a judicial determination, the courts will weigh in on whether Trump is qualified. Just as voters did not have the opportunity to elect Barak Obama to a third term because he was disqualified from holding office for more than two terms, voters should not have the opportunity to vote for an insurrectionist. Voters decided that Trump, after one term as President, should not be President again. Trump and his followers showed their disdain for the outcome of that election and turned to force and deception to overturn it. Some of the same observers who call for ignoring Trump’s insurrection also note that he should not be disqualified because his supporters may engage in further violence!
Trump and his supporters now argue that they did not engage in insurrection. Instead, they say that they were peacefully demonstrating. The evidence of insurrection, however, exists not only in what happened on January 6 but also in the planning that occurred in the weeks leading up to January 6 and Trump’s refusal to call for the insurrectionists to stop their violence. On January 6, Trump called for his followers to prevent the transfer of the Presidency to Joe Biden. Moreover, after January 6, as the Department of Justice sought to hold insurrectionists accountable, Trump gave aid and comfort to them by promising to pardon those who have been tried and convicted of crimes related to the insurrection if elected.
Most legal scholars who have looked at the evidence already presented by the House January 6 Committee are convinced that Trump is an insurrectionist. Moreover, the legal analyses of prominent jurists, including conservatives, have found no wriggle room in the textual and originalist interpretation of the Fourteenth Amendment, Section 3. Because the six conservative justices have all justified their extreme decisions on some form of textualism and originalism, they may find it difficult to ignore its dictates. If the conservative justices appear to disregard the judicial philosophy undergirding their decisions, then the Supreme Court will lose some of its legitimacy. Alternatively, if the Supreme Court avoids the disqualification question and decides on procedural grounds, the court will also lose legitimacy.
Besides being what the Constitution calls for, disqualifying Trump may be a way to reduce anger and remedy some of the illegitimacy now facing the court. Trump can petition Congress to overturn his disqualification as prescribed in Section 3. And there is ample reason to think such an application would succeed. Although Republicans hold the House by two votes and are in the minority in the Senate by one vote, many Democrats could be willing to support removing the disability of disqualification. First, some Democrats think Trump should be on the ballot. Many Democrats believe that removing Trump from the ballot will outrage his voters. They believe the only way to defeat Trump’s influence in American politics convincingly is to beat him at the polls. They should be expected to vote to remove Trump’s disability. Second, other Democrats believe that Trump would be the easiest Republican for Biden to defeat. They also can be expected to vote to remove Trump’s disability. Third, most Democrats and Republicans want the House to reach a deal on funding for the Ukraine, Israel, and the U.S. budget to prevent a government shutdown. Removing Trump’s disability could be the basis for the agreement that hardcore Trump supporters would want.
Disqualifying Trump could have less impact on Trump than on the Supreme Court. Because Congress can remove Trump’s disability, the Supreme Court may stand to lose the most. But the Supreme Court is unlikely to uphold the law and disqualify Trump on substantive grounds. The six conservative justices have shown that they view the result of judicial decision-making to be a way of implementing Republican policies.