Law and Insurrection

Does the 14th Amendment Ban Trump from the Ballot?

In case you were trying to remember whether it really was an insurrection.

On December 19, a majority of the Colorado Supreme Court ruled that Donald Trump is ineligible to appear on ballots in the state’s presidential primaries because he is disqualified by Section 3 of the 14th Amendment, which bars from office anyone who has engaged in insurrection against the United States. The 14th Amendment was passed in 1866 and was intended to prevent a political comeback by the defeated Confederacy.

The Colorado Supreme Court ruled that this provision also applies to Donald Trump’s attempt to prevent the certification of the 2020 election result. Here’s the text of the ruling, and see also a good summary, with key quotations, from Ilya Somin.

This followed a ruling by the Minnesota Supreme Court that rejected a similar challenge, but on narrow grounds. It did not decide whether Trump is eligible to be on the ballot for the general election, but it declined to interfere in the Republican primaries because, as the New York Times puts it, “There is no law in Minnesota prohibiting a political party from putting a constitutionally ineligible candidate’s name on the ballot” for their primaries.

On December 27, the Michigan Supreme Court made a similarly narrow ruling, also leaving undecided whether Trump would be eligible to appear on the general election ballot. A case in Virginia was dismissed due to “procedural deficiencies.”

Then on December 28, Maine’s Secretary of State issued an official decision that Trump is disqualified by the 14th Amendment from appearing on the state’s ballots. In most states, the Secretary of State is in charge of election administration, and Maine law specifically requires a candidate to provide “a statement that the candidate meets the qualifications of the office the candidate seeks” before the secretary allows his name to be printed on official ballots.

There will be more legal challenges producing a variety of results. The Lawfare blog has a state-by-state tracker. At this early stage, none of the states that has removed Trump from the ballot would be likely to tip the result of the next election, but if a state like Michigan were to rule differently when it comes to ballots for the general election, this is a real possibility.

If ever there were a case that requires a ruling from the Supreme Court, this is it. So basic a question as whether a major party candidate is qualified to run for office requires a single federal-level answer.

And we need the answer urgently. The Iowa Republican Caucus is on January 15, followed by the New Hampshire Primary on January 23. Donald Trump completely dominates Republican polls; the base of the party clearly wants to nominate him. So in less than two weeks, if the Supreme Court does not issue a definitive ruling, Republicans will begin to choose a candidate who could be ineligible for office.

But how should the court rule? Which outcome is most consistent with representative government and the rule of law? Which is the proper interpretation of the Constitution?

Let’s look at the language of the 14th Amendment and the arguments on either side.

We The People

The best thing about the US Constitution is that it is written in plain, clear English. It is a document for “we the people” and intended to be understood by us. There are a few parts that have ambiguous constructions, use terms with technical meanings, or which are difficult to apply in light of new technology or social arrangements. But most of it can be understood by anyone capable of basic reading comprehension.

This is one of those clauses. Here is the text of Section 3 of the 14th Amendment.

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.

Donald Trump has previously taken an oath, at his inauguration in 2017, to “preserve, protect, and defend the Constitution of the United States.” In his response to the 2020 election, he conspired to subvert the peaceful transition of power, prevent the certification of a legitimate vote, and remain in office in defiance of the Constitution. By a plain reading, this disqualifies him from holding “any office, civil or military, under the United States.”

If you want a systematic and much, much more detailed argument, the current discussion of Section 3 was accelerated late last year by the release of a preprint version of a legal journal article by William Baude and Michael Stokes Paulsen, conservative legal scholars affiliated with the Federalist Society. Despite, or rather because of, their allegiance to the conservative legal school of “originalism,” they found, in Baude’s summary, that “Donald Trump cannot be president—cannot run for president, cannot become president, cannot hold office—unless two-thirds of Congress decides to grant him amnesty for his conduct on January 6.”

You have to register to read the whole thing, and be warned that it is 125 pages long—less an article than a short book. Or rather, it is a first draft for a Supreme Court decision, offered up ready made to the conservative originalists on the court.

If you want a shorter version, the arguments are summarized here and echoed in a longer article by legal scholars Michael Luttig and Laurence Tribe.

The argument has four parts: that the Fourteenth Amendment is still “legally operative” today; that it is “self-executing,” meaning that it requires no further legislation to be put into effect; that it is not inconsistent with other provisions of the Constitution, such as freedom of speech and the right to due process; and that the term “insurrection” applies to the actions taken by Donald Trump.

So let’s take these issues a few at a time, particularly in response to various counterarguments that have been offered up.

Did Trump commit insurrection?

Readers know where I stand on this, and I should remind you that this is where most of us stood after watching the events of January 6. There has been a concerted attempt to whitewash this history and make out the insurrectionists as unfairly persecuted patriots, but this view is still rejected by the general public.

Adam Liptak’s summary of the Baude and Paulsen paper concisely sets out the evidence for Trump’s role. “There is, the article said, ‘abundant evidence’ that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol, and remaining silent for hours during the attack itself.”

Here is how the Colorado court’s majority put it:

As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully under way, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.

All of this ought to be familiar by now, but here are a few new details that came out recently.

Internal communications from the planners of the pro-Trump rally that preceded the January 6 attack show that they deliberately hid from the National Park Service Trump’s intention to call for a march on the US Capitol—and did so with the coordination of the Trump White House.

“NPS officials stated that, even though knowledge of the march would not have led to denial of WFAF’s permit, it would have affected how they prepared for the demonstration and engaged with other affected jurisdictions and law enforcement officials,” investigators wrote in the report….

The report shines new light on how event organizers ultimately hamstrung federal agencies and law enforcement from better preparing for January 6, when a violent pro-Trump mob descended on the US Capitol in a failed attempt to overturn the results of the 2020 election.

Then there is a very recent report of an audio recording of Donald Trump personally pressuring Wayne County, Michigan, canvassers to refuse to certify the county’s vote.

On a Nov. 17, 2020, phone call, which also involved Republican National Committee Chairwoman Ronna McDaniel, Trump told Monica Palmer and William Hartmann, the two GOP Wayne County canvassers, they'd look “terrible” if they signed the documents after they first voted in opposition and then later in the same meeting voted to approve certification of the county’s election results, according to the recordings….

McDaniel, a Michigan native and the leader of the Republican Party nationally, said at another point in the call, "If you can go home tonight, do not sign it. ... We will get you attorneys."

To which Trump added: "We'll take care of that."

Palmer and Hartmann left the canvassers meeting without signing the official statement of votes for Wayne County, and the following day, they unsuccessfully attempted to rescind their votes in favor of certification, filing legal affidavits claiming they were pressured. 

The moves from Palmer, Hartmann, and Trump, had they been successful, threatened to throw the statewide certification of Michigan's 2020 election into doubt.

To put this in context, Wayne County is home to Detroit and to 18% of Michigan’s population. Since the county tilts heavily toward Democrats, a failure to certify the vote would have thrown Michigan back toward Trump. What Trump was proposing here was not a recount of the Wayne County vote. He was proposing simply to throw out the vote and in effect to disenfranchise the citizens of Wayne County.

Ilya Somin quotes the Colorado court.

[F]or purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the US government from taking the actions necessary to accomplish a peaceful transfer of power in this country.

Somin adds, “January 6 qualifies as an ‘insurrection’ even under a fairly narrow definition of the term that is limited to the use of force to take over the powers of government.”

But Trump hasn’t been convicted of insurrection.

Section 3 does not require that someone be convicted of insurrection in order to be barred from office. Its post-Civil War context makes clear why this was the case. Most Confederate officials, and certainly its soldier and military officers, were never tried and convicted of insurrection. There were simply too many of them, and in the interests of peace and reconciliation, they were allowed to return to their homes and lives. This was the whole reason for writing Section 3 in the first place. The framers of the 14th Amendment wanted a way to bar former Confederates from political power without having to prosecute them all.

That’s the specific historical context, but the text of the Constitution lives beyond its specific historical context—as it was intended to. In the original debates on Section 3, West Virginia Senator Peter Van Winkle explained, “This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood.”

You could argue that the 14th Amendment is so closely tied to its Civil War context that it should not be considered applicable today. But that requires the kind of subjective “living Constitution” reasoning that conservative “originalists” have angrily rejected for decades.

Does Section 3 actually apply to the president?

The lamest counter-argument against Section 3 is that the phrase “officer of the United States” is not the same thing as an “officer under the United States,” the exact difference being…well, I’m not really sure. You can read the argument for yourself if you have the recreation time, but in all of the examples it cites, it seems to me that that “officer of” and “officer under” are being used interchangeably.

At any rate, the idea that the president is not an officer of the United States seems to sum up the defense of Trump, which is that the presidency is somehow a special office that is above the rest of the political system. I made this point a few years back when they were talking about US foreign policy as if it were Donald Trump’s personal property, rather than the foreign policy of the United States, to which he is subordinate. The president is both “of” and “under” the United States and subordinate to all the provisions of the Constitution.

This argument is particularly weak, and it is also typical. In this regard, I agree with George Conway, who writes that he was most convinced of the application of Section 3 by reading the dissents and noting how weak they are. “If Trump’s lawyers or any members of the United States Supreme Court want to overturn the decision, they’d better come up with something much, much stronger.”

So let’s end on the most substantive question about Section 3.

But how can the courts be deciding who is allowed on the ballot?

Courts decide all the time who is qualified to be on the ballot, as do state and local election officials.

For example, rabble-rousing leftist talk-show host Cenk Uygur has been trying to mount a stunt candidacy for president, despite the fact that he is a naturalized US citizen born in Turkey and therefore not a “natural born citizen” of the United States. He is constitutionally disqualified from running, and this was recently affirmed by the Arkansas Secretary of State. If he were to sue to overturn that decision, it would clearly be affirmed in the courts.

One person who knows all about this is Donald Trump, who has a history of trying to get other people disqualified in elections. A Washington Post article points out that Trump launched his rise to the presidency by embracing the “birther” conspiracy theory that tried to disqualify Barack Obama by denying that he was born in the United States. Even this would not actually have disqualified Obama because he was born to a US citizen, which satisfies the “natural born citizen” clause. But Trump tried a similar argument about Senator Ted Cruz, who was born in Canada to a US citizen.

More to the point, in the current context, he repeatedly claimed that Hillary Clinton “should not be allowed to run for president based on her crimes.” The “crimes” were a scandal about the mishandling of classified material—a serious issue, but not nearly as serious as attempting to prevent the peaceful transition of power.

Here’s the issue that I find most compelling on this question. Among the list of possible disqualifications from the presidency, there is one that people aren’t thinking enough about: If elected this year, Donald Trump would be disqualified from running for a third term. It’s right there in the 22nd Amendment, passed a few years after FDR was elected to a fourth term, as a way of re-asserting George Washington’s precedent that a president serves only two terms.

Donald Trump has hinted at being “entitled” to a third term, and we all know he would love to be president-for-life. So what’s to stop him? If the courts can’t enforce Section 3 of the 14th Amendment, how would they enforce the 22nd Amendment?

This is what legal scholars mean when they say Section 3 is “self-executing.” They mean it in the same way that the First Amendment is self-executing. It requires no further legislation detailing how it is to be executed and by whom. (By contrast, provisions like the power to establish a national postal service or to declare war require specific acts of Congress to be put into effect.) Like most provisions of the Constitution, the principle of freedom of speech applies immediately and directly to all government action.

The legal term “self-executing” can be a bit misleading, because obviously the mere words on the page do not enforce themselves. What this principle means in practice is that the provisions of the Constitution are to be enforced by everybody. Everybody has the authority to block an unconstitutional act. In this case, a whole collection of individuals in our election system have a role in deciding who is qualified to run for office, from secretaries of state to the courts.

This is how constitutional provisions are enforced, and without them, the Constitution would be a dead letter.

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We Are All Democrats, We Are All Republicans

The main argument against using Section 3 to disqualify Trump is not legal or constitutional but political. It is the complaint that this would be “undemocratic.”

Let’s start by saying this is pretty rich coming from the pro-Trump side. They can squeal all they like about “letting the people decide,” but that’s not what they did on January 6, is it? The thing that disqualifies Trump from office is itself an “undemocratic” act, and the purpose of disqualifying him is to prevent him from doing it again.

More broadly, the spirit of Section 3 is very much in keeping with the spirit of the rest of the Constitution. The basic dilemma the Founders were trying to solve is that democracy can be its own worst enemy. Charlie Sykes does a good job taking on this argument, and he reminds me that James Madison lamented that democracies had historically been “as short in their lives, as they have been violent in their deaths.” (He also includes a quote from Madison about democracy being “the right of the people to choose their own tyrant.” It’s a good line but possibly apocryphal, since I have not been able to chase down its source.)

The Founders observed the instability of Ancient Greek democracy and how a clever orator could sway the Athenian mob on one day, then sway it back the next. They anticipated that a demagogue or a strongman could gain a temporary majority that would allow him to seize power and then prevent the people from ever getting rid of him. So they built in a series of protections which limit and counter-balance the power of a temporary majority in order to preserve the whole system.

A large and enduring majority always gets its way, in the long run. No constitutional system can protect against that. But a constitution can prevent temporary fads and factions from getting their way in the short run.

Consider, for example, one of the other presidential qualifications: that a candidate must be a “natural born citizen.” Here, the Trumpist nativists will gravely nod their heads in agreement. The purpose of this qualification is to make sure that the president has long and deep ties to the US, that he has no residual loyalty to a foreign power. But by writing this into the Constitution, the Founders were anticipating that such a figure might become popular, that the people might want to elect him. Otherwise, why go to the trouble of specifically disqualifying him?

Section 3 is very much in this tradition. It is clearly intended as a check against the momentary desires of a majority. What would be the point of barring from office only those insurrectionists who have no chance of winning? Section 3 only exists because its framers imagined that an insurrectionist might have popular support. This was obviously true for election to Congress, where they could be certain that the Southern states would choose to elect Confederates if they could. And they must have imagined that such a figure might someday become popular enough to win a national majority, so they erected a barrier against this that would be very difficult to overcome.

Moreover, the Section 3 disqualification can be overcome, if enough of us want it. The 14th Amendment offers a way for the people to remove Trump’s disqualification, through a two-thirds vote in Congress. Moreover, if enough people are really convinced that the courts shouldn’t have this power at all, they could pass a new constitutional amendment repealing Section 3. Yet for all that they clamor about representing “the people,” Trump’s supporters don’t have anywhere near the votes to do this. A new poll indicates that only a minority, the hard-core Trumpist base of the Republican Party, accepts his stolen election theories and his revisionist history of the insurrection. An attempt to repeal Section 3 or remove Trump’s disqualification would be hard pressed to muster a simple majority, much less two thirds.

The wider issue is that our constitutional system is not crudely majoritarian. It is a system of checks and balances in which every branch and office of government has a role in protecting and enforcing the system.

It is true that it would have been far better for the country if Trump had been impeached and convicted by Congress for his role in the January 6 insurrection. It would also be better if his party had rebelled against him after January 6, or if he had lost so much public support that he could not plausibly win if he does appear on the ballot this November. But the fact that other protections against tyranny failed is not a reason to abandon the few that remain. Quite the contrary, our system provides multiple forms of protection precisely for this reason.

As to whether such protections should be mowed down and the people should get whatever they want, I will simply observe that no one actually believes this in practice. If you think the left is in favor of unlimited democracy, ask them about abortion, where all of a sudden they are adamant about constitutional limits on the majority. If you think the right is in favor of constitutional limits on the majority, ask them about abortion, where suddenly they are all crude majoritarians.

On the question of whether we’re a pure majority-rule “democracy” or a constitutionally limited “republic,” most people’s positions can be figured out by using Tracinski’s Rule of Thumb. On issues where a faction thinks it has majority support, we’re a democracy. On issues where they think they don’t have a majority, we’re a republic.

But the rule of law means that the Constitution applies regardless of your partisan loyalties and prejudices. You play by the rules even when that doesn’t guarantee you will win.

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The Rule of Law or the Rule of Force

The most damning argument against invoking Section 3 is the idea that there will be violence if the Supreme Court enforces it. But this is an admission that Trump is the leader of an insurrectionary mob that threatens violence against anyone who enforces America’s constitutional order—just as they employed violence to block the certification of the vote on January 6. And this is precisely why he must be barred from office.

In fact, this may well be a significant part of the reason why this issue came to the courts instead of being settled in Congress by the process of impeachment. Consider the claims made by Mitt Romney, who I consider a sober and reliable source, about why his colleagues balked at impeaching Trump.

One Republican congressman confided to Romney that he wanted to vote for Trump’s second impeachment, but chose not to out of fear for his family’s safety. The congressman reasoned that Trump would be impeached by House Democrats with or without him—why put his wife and children at risk if it wouldn’t change the outcome? Later, during the Senate trial, Romney heard the same calculation while talking with a small group of Republican colleagues. When one senator, a member of leadership, said he was leaning toward voting to convict, the others urged him to reconsider. You can’t do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right.

Others have related similar stories.

To accept that we cannot disqualify Trump because of the fear of violence is to pre-emptively surrender the rule of law to the rule of force.

That leads us to consider the Supreme Court’s options. This will be one of the most consequential decisions in the court’s history regardless of how they rule, and even if they choose not to take the case.

The Supreme Court can decide not to review the appeal from Colorado or any of the other states. But to do so would be an obvious abdication of their responsibility. It would lead to chaos, in which each state is permitted to decide on its own who is qualified for national office. This is so clearly a national-level issue, a constitutional issue, that a decision not to take the case would be seen as a surrender to political pressure and to the threat of mob violence.

Alternatively, the Supreme Court can rule in Trump’s favor—but on what grounds? As far as I can tell, they would have to rule that the 14th Amendment no longer applies because, gosh, things are just so different now compared to 1866, and our interpretation of the rules need to change with the evolving standards of a maturing society. But this would be the final death of originalism in favor of a conservative version of the “living Constitution.”

That’s why the Baude and Paulsen paper is so important. Coming from Federalist Society originalists, it makes it clear that the conservatives on the Supreme Court cannot reject an Article 3 argument without making a mockery of the entire conservative legal philosophy. I think they have already done so in the Dobbs decision, so I am not ruling this out.

Or the Supreme Court might rule that Trump really is disqualified under Section 3, in which case he will be removed from the presidential ballot everywhere. It would literally become illegal—an act of insurrection in itself—for any state to print ballots with his name on them.

I think this last outcome is surprisingly likely. Many of the conservatives on the Supreme Court really do see themselves as originalists. The originalist argument will hold sway with them, and the number of conservative originalists and Federalist Society types who have lined up on this side of the issue will provide them with moral support. Perhaps more important is that many of them are committed to the Supreme Court as an institution and to preserving its legitimacy. Sometimes that leads them to be too cautious about seeming to overrule the will of Congress. In this case, however, it might make the conservatives reluctant to be seen to be bowing to political pressure from the right, precisely because some of them were appointed by Trump. According to the New York Times, “Trump has expressed concern that the conservative justices will worry about being perceived as ‘political’ and may rule against him.”

For a combination of those reasons, other conservatives and Trump appointees have ruled against him before, and they may do so again.

Would this set a bad precedent? It all depends on where you begin the story. What sets a bad precedent is a sitting president trying to overturn the vote that removes him from office. What sets a worse precedent is him getting away with it, with no constitutional repercussions.

It is not good to have the Supreme Court forced to rule about who can be allowed on the presidential ballot. But at this point, it is the least bad outcome.