Former president Donald Trump’s narcissism, lies and blatantly criminal acts have forced upon this nation some almost unresolvable dilemmas that are fraught with democracy destabilizing outcomes.  Will the legal system allow him to escape the rule of law and run for president again – or prosecute him and hold him accountable?   Well, four indictments with 91charges already filed would seem to answer part of these questions.  Now, however, another legal question is being asked: Is Trump disqualified from running again under Section 3 of the 14^th Amendment of the U.S. Constitution?

Numerous legal scholars have opined that states may legally exclude him from the 2024 ballot under this “Disqualification Clause,” which would likely infuriate perhaps 30% of the nation’s voters and may incite riots.  But if he is allowed on the ballot, he could win outright – or MAGA supporting red state legislators could falsify electoral votes to ensure he wins, which would also provoke great unrest.  Either way, I believe the nation’s democratic institutions will be in serious jeopardy if Trump becomes president in 2025.    

Section 3 of the 14^th Amendment of the Constitution was ratified July 9, 1868 in the aftermath of the Civil War as prominent rebels were running for Congress.  As abridged here by me it states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office …. under the United States …. who, having previously taken an oath …. as an officer of the United States …. 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.

Several blue state secretaries of state will likely attempt to exclude Trump from their state’s ballot and litigation has already been filed to exclude him by six Republican and unaffiliated voters in Colorado.  This issue will certainly land in the U.S. Supreme Court and the result may hinge on how the Court chooses to define “insurrection or rebellion,” which the Constitution does not define.  The justices must also decide if the January 6, 2021 rioters are enemies of the United States to whom Trump has given “aid or comfort.”

The Congressional Research Service, a government entity, did a six-page analysis of Section 3 dated September 7, 2022, that outlines various issues involved in disqualifying those who participated in or encouraged the January 6 siege on the Capitol.  It does not reach any conclusions, of course, but it provides some helpful guidance on how that section might apply.

The CRS examined the Insurrection Act, enacted approximately three years after the Fourteenth Amendment, for a possible definition of an insurrection. This law authorizes the use of armed forces in cases where insurrectionists “oppose” or “obstruct” the execution of the laws of the United States or impede “the course of justice under those laws.” Congressional activities, including fulfilling the constitutional duty of certifying electoral votes, would likely be considered execution of U.S. laws.

Of the numerous opinions regarding the applicability of the Disqualification Clause, I believe the most relevant are contained in “The Sweep and Force of Section Three,” an article authored by William Baude from the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas.  Why?  Well, these legal scholars are affiliated with the deeply conservative Federalist Society and they are absolutely dedicated to “originalism,” a philosophy used to interpret the Constitution that is also followed by all six conservatives on the U.S. Supreme Court.

Baude and Paulsen examined Trump’s conduct before and during the January 6 attack on the Capitol to determine if they qualify as acts of rebellion and if such conduct would disqualify him from being president again. 

The following abstract of their article, abridged here by me, succinctly summarizes the author’s conclusions much better than I can, although, they are not supported by all legal analysts.

• First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.

• Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.

• Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes …. the Due Process Clause, and even the free speech principles of the First Amendment.

• Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of …. support as “aid or comfort.” It covers a broad range of former offices, including the Presidency.  [I]t disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

Clearly, Baude and Paulsen’s interpretation of Section 3 of the 14^th Amendment could be used to disqualify numerous Republican politicians from holding office, federal, state and local.  This fact will no doubt weigh heavily on the Supreme Court justices as they decide any case involving the Disqualification Clause and Trump.  And I believe that all nine justices will give Baude and Paulsen’s opinions very careful consideration. 

Even though I profoundly fear a second Trump presidency, I am very concerned about the consequences of disqualifying him from running.