“The 360” shows you diverse perspectives on the day’s top stories and debates.
More than 155 years ago, the United States amended its Constitution in the wake of the Civil War to prevent Southern rebels from regaining political power at the ballot box.
Any previous officeholder who has taken an oath “to support the Constitution of the United States,” reads Section 3 of the 14th Amendment, will now be disqualified from holding office again if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
In recent weeks, this so-called Disqualification Clause has been propelled back into the headlines by some of America’s most prominent legal minds, who argue that far from being a quaint postbellum relic, it actually gives today’s election officials the power — even the responsibility — to prohibit former President Donald Trump from appearing on the ballot again in 2024.
“Section Three remains an enforceable part of the Constitution [and] covers a broad range of conduct against the authority of the constitutional order,” wrote law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas in a deeply researched law review article posted online earlier this month. “In particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
Weighing the evidence, former federal judge J. Michael Luttig soon came to the same conclusion. “The former president’s efforts ... place him squarely within the ambit of the disqualification clause,” Luttig declared in a much-discussed Atlantic essay (written with Harvard law professor Laurence Tribe). “The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command.”
Democrats have long claimed that Trump and other Republican lawmakers should be barred from office over their actions on (and around) Jan. 6, 2021. But Baude, Paulsen and Luttig aren’t Democrats. They are leading conservative lawyers.
Now, as a result, a Florida tax attorney is challenging Trump’s eligibility in federal court, and election officials in Michigan, New Hampshire and elsewhere — both Democratic and Republican — are considering whether to exclude him from their state ballots.
Why there’s debate
Any attempt to remove Trump from the ballot in 2024 would unleash a constitutional crisis of epic proportions, forcing the Supreme Court to intervene.
There are two dimensions to the (very heated) debate over Section 3. The first is legal. Wasn’t the Disqualification Clause meant to apply only to ex-Confederates in the 1860s? Wasn’t it effectively repealed when Congress granted general amnesty in 1872 and 1898? Don’t Congress or the courts need to determine what qualifies as engaging in “insurrection or rebellion” or giving “aid or comfort to … enemies”? Doesn’t “enemies” in this case mean enemies in war? And wasn’t Trump’s scheme to seize the presidency too bumbling to amount to a “rebellion” or “insurrection”?
The even more contentious — and likely more consequential — dimension here is political.
“Consider the scenario in which Section 3 is invoked against Trump in 2024,” David Frum wrote in the Atlantic earlier this week. “Although he has won the Republican nomination, Democratic secretaries of state in key states refuse to place his name on their ballots, as a person who engaged in insurrection against the United States. With Trump’s name deleted from some swing-state ballots, President Joe Biden is easily reelected. But only kind of reelected. ... The rage and chaos that would follow are beyond imagining.”
Filing deadlines for the 2024 presidential contest start with Nevada on Oct. 16, then ramp up in November and December. Election officials typically don’t challenge a candidate’s eligibility until he or she files.
But already, New Hampshire Secretary of State David Scanlan, a Republican, has revealed that he “will be asking the attorney general’s office for their input.”
“When somebody makes a reasoned argument about what those provisions mean, I feel an obligation to at least listen to them,” Scanlan explained.
Likewise, Scanlan’s counterpart in Michigan, Democrat Jocelyn Benson, has said she is “going to follow the law” and will be “talking with [Secretaries of State] Al Schmidt in Pennsylvania, with Cisco Aguilar in Nevada, with Brad Raffensperger [in Georgia], because we know ... the impact that this decision could have.”
History shows that Section 3 was designed to stop figures like Trump from regaining power
“Conspiring, whether by violence or coercion, to overturn the outcome of an election is precisely what Confederate officers and officeholders did. They didn’t like the outcome of the 1860 election, so they tried to dismantle the United States, first by walking away, then by force. … It’s hard to argue that the same thing didn’t happen in the aftermath of the 2020 election.” — Joshua Zeitz, Politico
But the key question is defining what constitutes 'insurrection or rebellion' — and that’s too big a job for partisan election officials
“The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common in United States history. Many of these riots impede the lawful operations of government, and exceed the power of normal law enforcement to control. ... In the absence of actual engagement in actual insurrection, judged as such by competent authorities, we should allow the American people to vote for the candidates of their choice.” — Stanford law professor Michael McConnell, to Reason
Arcane legal debates aside, invoking Section 3 would create more problems than it would solve
“The idea that the best way to deal with a demagogic populist whose entire appeal is already based on disillusionment with the established order is for state officials — in practice, state officials of the opposing political party — to begin unilaterally excluding him from their ballots on the basis of their own private judgment of crimes that he has not been successfully prosecuted for … I’m sorry, the mind reels. It should not happen, it would not work if it did happen, John Roberts and four more justices would not uphold it, and it would license political chaos to no good purpose whatsoever.” — Ross Douthat, New York Times
One of those problems? A new precedent that Republicans could weaponize to disqualify Democrats
“If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as ‘aid and comfort’ to enemies of the United States.” — David Frum, Atlantic
Yes, but … the law is the law, and declining to enforce it won’t stop Trump from being Trump
“[The fear is that] imposing accountability will only escalate American political division, leading to a tit-for-tat of prosecuted or disqualified politicians. … I think [these] warnings are correct. Trump and his allies are already advertising their plans for revenge. But if past practice is any guide, Trump and his allies will abuse our nation whether we hold him accountable or not.” — David French, New York Times