Opinion | Relying on the 14th Amendment to disqualify Trump is foolish – The Washington Post
If a constitutional provision disqualifying Donald Trump from the presidency sounds too good to be true, that’s because it probably is.
A forthcoming law review article by two prominent conservative academics has ignited interest in Section 3 of the 14th Amendment. The section, approved just after the Civil War, declares that no one who has “engaged in insurrection or rebellion” against or “given aid or comfort to the enemies” of the United States may hold a number of high federal offices.
The scholars’ case for invoking Section 3 to keep Mr. Trump off the 2024 ballot is intriguing. But banking on an arcane paragraph to protect the country from a second Trump term would be foolish.
The first set of hurdles involve the provision’s legal intricacies. For every clause presents a question. The answers, in most instances, aren’t terribly clear. To start, what offices does the restriction apply to? There’s no explicit mention of the presidency. This question appears surmountable: It seems implausible that the most powerful position in the land would be excluded when all possible other posts to which public servants are sworn in are covered.
Similar is the question of whether Congress effectively axed Section 3 with the Amnesty Act of 1872, which removed the disqualification from most of these Confederates and their allies. The language, full of past-tense verbs and words such as “hereby,” suggests that the removal applied only retrospectively, just to the Confederates in question.
More confounding is the debate over whether, assuming Section 3 remains in effect, it applies automatically — or whether Congress must pass a law giving it life. Generally, when Congress is required to put the word of the Constitution into force, the Constitution says so. But complicating matters is an opinion by Chief Justice Salmon P. Chase, handed down the year after the 14th Amendment’s ratification, declaring that Congress must indeed give its say-so.
Meanwhile, all these quibbles seem academic compared with this issue: Is Donald Trump an insurrectionist?
Unfortunately, that’s no easy question, either. Section 3 was clearly a direct response to the crisis of the times: the Civil War and its aftermath. The aim was to stop Southern states from sending ex-Confederates to Washington to participate in the government they had attempted to overthrow.
But the drafters of the 14th Amendment chose the words “insurrection” and “rebellion” rather than referring specifically to the conflict over slavery. There’s a strong case that the events of Jan. 6, 2021, meet the definition of “insurrection.” Congress seems to have thought so, at least; when it awarded gold medals to the police officers who protected the Capitol on that day, its declaration included the term.
There’s less of a case, however, that Mr. Trump engaged in this insurrection. The various prosecutors who have indicted him so far have charged him with plenty of crimes — but not, notably, the federal crime of insurrection. As far as whether the former president nonetheless gave “aid or comfort” to “enemies of the United States” who were engaging in insurrection, it’s easy to see it both ways.
Mr. Trump provided no tangible help to the men and women who stormed the nation’s seat of government. But, as the Jan. 6 committee has carefully laid out, Mr. Trump egged on supporters at the National Mall who he knew were armed — and, later, when they were beating down the building’s doors, he neglected to call them off despite having the influence to end the violence.
Where all this leaves the courts that might eventually adjudicate this subject is unclear. Even less clear is whether, on the level of principle, preventing voters from casting ballots for a candidate of their choice has a place in a nation built on every citizen’s right to have a say.
Of course, the Constitution already restricts the people’s control over who leads them. Not everyone can be president — or senator or even representative. There are minimum age requirements, for instance, as well as the mandate that the commander in chief be a natural-born citizen.
The framers created myriad bulwarks that might appear antidemocratic but are designed to keep democracy standing. It seems consistent with their intentions that elected officials who violate their oath of office by seeking to overthrow the very government they have sworn to protect should be prohibited from taking that office again.
Yet this same argument might be employed in bad faith. Whether a candidate is under the age of 35 is objective; whether a candidate has engaged in rebellion is less so. Imagine a Republican running for a House seat attempting to knock a Democrat out of the running on the grounds that they participated in the Black Lives Matter protests in 2020 — and that these “riots” were a form of insurrection.
Now imagine that all these concerns, constitutional and philosophical, could be surmounted. The question of how the disqualification is actually supposed to happen remains.
Theoretically, state secretaries of state ought to scrub Mr. Trump’s name from the ballot. But some don’t have the power under state law without a legislative act, and others have made it clear they don’t see that as their job, regardless. Electors could refuse to lend their votes to a candidate the Constitution prohibits from winning; senators and representatives could refuse to certify the victory. But it is difficult to believe that they would.
The disputes that invoking Section 3 of the 14th Amendment would elicit would almost certainly make their way to the Supreme Court — where the chances of Mr. Trump’s disqualification being affirmed seem low. The public would be better off pursuing a more straightforward route to keeping the former president out of the Oval Office: voting.
Editorials represent the views of The Post as an institution, as determined through discussion among members of the Editorial Board, based in the Opinions section and separate from the newsroom.
Members of the Editorial Board: Opinion Editor David Shipley, Deputy Opinion Editor Charles Lane and Deputy Opinion Editor Stephen Stromberg, as well as writers Mary Duenwald, Shadi Hamid, David E. Hoffman, James Hohmann, Heather Long, Mili Mitra, Keith B. Richburg and Molly Roberts.