Donald Trump and the Fourteenth Amendment
I’m not a Donald Trump fan. Nor am I a fan of going back to Romney-Ryan Republicanism. (For my thoughts on Trump and the GOP, see this post written two days before the riot that took place on January 6, 2021). But those on the right who long for the UniParty as it existed pre-Trump have devised a new trick to keep the Donald off the next presidential ballot. And it’s about as goofy as Sydney Powel’s voting machine theories. UniParty advocates are turning to Section 3 of the Fourteenth Amendment, which reads:
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.
Section 3 disqualified former Confederates, who had previously taken an oath to support the federal Constitution, from holding federal or state office. Although scholars are far more interested in issues surrounding Section 1’s Privileges and Immunities and Due Process Clauses, Section 3 was far more important to members of the 39th Congress than Section 1. The radicals did not want to see the likes of Alexander Stephens, John C. Breckinridge, and other Confederate leaders admitted to Congress. Section 3 served as a bar absent a two-thirds vote in Congress to remove the disability. The Amnesty Act of 1872 removed office-holding disqualifications against most former Confederates except for a few hundred high-ranking leaders.
From 1872 to the present, this provision has been forgotten. However, some commentators have suggested a broad interpretation of the provision. The aim, of course, is to prevent Donald Trump from running for president. Northwestern’s Steven Calabresi, for example, argues that Trump “engaged in an ‘insurrection’ on January 6, 2021.” Thus, “State Secretaries of State and their subordinates” should act to delete Trump from any presidential ballot. He further argues that Section 3 is “self-enforcing,” thus, no formal adjudication or congressional action is necessary to keep Trump off ballots.
This is a dangerous interpretation of the Section 3. Calabresi wants 50 partisan political officials in the several states to make the call on whether Trump is guilty of participating in an insurrection. They define ‘insurrection’ and judge the extent of Trump’s participation or non-participation. There would be no due process to ensure a fair determination—we would have to trust small-time politicians looking to make a statement and to launch themselves into higher office. What could go wrong?
Congress has the power to enforce the Fourteenth Amendment (see Section 5). Congress has enacted 18 U.S.C § 2383, which criminalizes inciting or participating in “any rebellion or insurrection against the authority of the United States or the laws thereof.” An offender “shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” The statute requires a court adjudication in which the accused enjoys procedural protections, a jury trial, and the right to appeal the verdict. A more reasonable (and saner) approach would be to depend on a proper prosecution under the statute rather than inviting elected officials to toss political opponents off a ballot.
I sympathize with Calabresi and others suffering from Trump fatigue. But his interpretation of Section 3 only invites more political unrest and possibly violence.
