Supreme Court Begins Hearing Oral Arguments On Whether 14th Amendment Bars Insurrectionist Trump From Running For Office
At least 35 states have made moves to remove Trump from its 2024 presidential ballot. The court's decision in the Colorado case will affect the ballots in all 50 states.
[Update: Thomas links added.]
According to Article II, Section 1, Clause 5 of the Constitution, the limitations on a person wishing to run for president of the United States are few. A candidate must be: (a) a natural-born citizen of the United States; (b) a resident in the United States for at least 14 years; and (c) at least 35 years old. And a prospective candidate cannot have been disqualified by: (i) exceeding the term limits described in the Twenty-Second Amendment, (ii) being impeached and convicted under Article I, Section 3, Clause 7 of the Constitution, or (iii) having previously taken an oath to support the Constitution of the United States, engaging in insurrection or giving aid or comfort to insurrectionists, under Section 3 of the Fourteenth Amendment.
These requirements are “self-executing”. No court is necessary to interpret the limitations. No hearing is necessary. For example, Maxwell Frost has represented Florida’s 10th congressional district since January 3, 2023. After two weeks in office, he celebrated his 26th birthday. Therefore, Frost is disqualified from being on a presidential ballot until 2032. Even if millions of Americans want to vote for him for president, they cannot — until he is at least 35 years old and his name can be legally printed on a ballot. And that’s the end of the discussion.
In December 2023, the Colorado Supreme Court ruled, in Anderson v. Griswold, that Donald Trump engaged in insurrection on January 6, 2021, and was ineligible to be a candidate for president, and ordered that his name be removed from the state’s primary election ballots. Trump appealed that decision and the U.S. Supreme Court will hear oral arguments in that case beginning today (Thursday). Trump will not be in attendance — most likely because he would not be able to throw tantrums and insult the justices.
Formal challenges to Trump’s eligibility have been filed in at least 35 states. The Supreme Court has never ruled on the insurrection clause contained in the Fourteenth Amendment, but its ruling in this case will apply across all fifty states.
Section 3 of the Fourteenth Amendment is pretty simple to understand. It’s two sentences. It’s not arcane — and it does not use outdated words or ye olde legal jargon:
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.
Constitutional law professor Michael Gerhardt told The New Abnormal podcast, stating that a common sense reading of the Fourteenth Amendment makes clear Donald Trump is ineligible to become president again.
In August 2023, two prominent conservative legal scholars, William Baude and Michael Stokes Paulsen, published “The Sweep and Force of Section Three” in the University of Pennsylvania Law Review. The 126-page article has been downloaded more than 106,000 times and it erases all doubt: Section 3 of the Fourteenth Amendment disqualifies Donald Trump from being president (or holding any other public office). The Abstract states:
Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
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 rules against bills of attainder or ex post facto laws, 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 indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And 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.
It is important to point out that Baude and Paulsen are both members of the extremely conservative Federalist Society. Steven G. Calabresi, a founder of the Federalist Society and a law professor at Northwestern and Yale, stated the article was “a tour de force.”
Conservative legal scholar J. Michael Luttig and liberal legal scholar Laurence H. Tribe concurred in “The Constitution Prohibits Trump From Ever Being President Again” (The Atlantic), praising Baude and Paulsen and adding their own analysis:
Written with precision and thoroughness, the article makes the compelling case that the relevance of Section 3 did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision; that the provision was not and could not have been repealed by the Amnesty Act of 1872 or by subsequent legislative enactments; and that Section 3 has not been relegated by any judicial precedent to a mere source of potential legislative authority, but continues to this day by its own force to automatically render ineligible for future public office all “former office holders who then participate in insurrection or rebellion,” as Baude and Paulsen put it.
Among the profound conclusions that follow are that all officials who ever swore to support the Constitution—as every officer, state or federal, in every branch of government, must—and who thereafter either “engaged in insurrection or rebellion” against the Constitution or gave “aid and comfort to the enemies” of that Constitution (and not just of the United States as a sovereign nation) are automatically disqualified from holding future office and must therefore be barred from election to any office. . . .
The Fourteenth Amendment was promulgated and ratified in the context of postbellum America when, even after losing the Civil War, southern states were sending men to Congress who had held prominent roles in the Confederacy or otherwise supported acts of rebellion or insurrection against the United States.
The two of us have long believed, and Baude and Paulsen have now convincingly demonstrated, that notwithstanding its specific historical origin, Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified—as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.
Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” . . .
They conclude further that disqualification pursuant to Section 3 is not a punishment or a deprivation of any “liberty” or “right” inasmuch as one who fails to satisfy the Constitution’s qualifications does not have a constitutional “right” or “entitlement” to serve in a public office, much less the presidency. . . . Finally, the authors conclude that Section 3 is “expansive and encompassing” in what it regards as “insurrection or rebellion” against the constitutional order and “aid and comfort to the enemies” of the United States.
Baude and Paulsen are two of the most prominent conservative constitutional scholars in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans. Thus it is all the more significant and sobering that they do not hesitate to draw from their long study of the Fourteenth Amendment’s text and history the shattering conclusion that the attempted overturning of the 2020 presidential election and the attack on the Capitol, intended to prevent the joint session from counting the electoral votes for the presidency, together can be fairly characterized as an “insurrection” or “rebellion.”
Baude and Paulsen embrace the “idea that men and women who swore an oath to support the Constitution as government officials, but who betrayed that oath by engaging in or abetting acts of insurrection or rebellion against the United States, should be disqualified from important positions of government power in the future (unless forgiven by supermajorities of both houses of Congress).” To them, as to us, this will forever “remain a valid, valuable,” and “vital precept” for America.
Section 3’s disqualification clause has by no means outlived its contemplated necessity, nor will it ever, as the post–Civil War Framers presciently foresaw. To the contrary, this provision of our Constitution continues to protect the republic from those bent on its dissolution. Every official who takes an oath to uphold the Constitution, as Article VI provides every public official must, is obligated to enforce this very provision. . . .
The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process. . . .
If Donald Trump were to be reelected, how could any citizen trust that he would uphold the oath of office he would take upon his inauguration? As recently as last December [2022], the former president posted on Truth Social his persistent view that the last presidential election was a “Massive Fraud,” one that “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” . . .
[George Washington’s] fears [as expressed in his 1796 “Farewell Address”] about “cunning, ambitious, and unprincipled men” have, over the centuries, proved all too well founded. But his even stronger hopes for the republic were not misplaced. Still today, the Constitution, through its Reconstruction Amendments, contains a safeguard that it originally lacked—a safeguard against the undermining of our constitutional democracy and the rule of law at the hands of those whose lust for power knows no bounds.
The far-right members of the Supreme Court have long argued that a textualist and originalist interpretation of the Constitution is the only correct one. That is going to be a bit of a problem for them, because any true textualist and originalist would need fewer than 10 seconds after reading Section 3 to understand that Trump, having engaged in insurrection, is absolutely and forever ineligible to hold public office.
Unfortunately, this court is bound more by political affiliation than the law. Clarence Thomas, the most corrupt Supreme Court justice in history (and an unrepentant serial sexual harrasser) has not recused himself, despite the fact that his wife was extensively involved in the deadly and seditious insurrection. There is always the chance that we see this court opt for a cowardly act similar to the one we witnessed in 2000 when five justices ruled that the vote-counting in Florida must cease immediately and George W. Bush be named president-elect. That opinion was unsigned (none of the justices wished to be associated with it any more than absolutely necessary) and it stated that the ruling was for this case only and should never be used as a precedent. Yes, kids, that actually happened. (The magic sentence: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” And that’s one reason why Bush v Gore is one of the worst decisions in the Court’s history.)
Most media seem to have forgotten that Trump would not be the first January 6 insurrectionist to be disqualified by the Fourteenth Amendment. In March 2022, Otero County (New Mexico) Board Commissioner Couy Griffin was found guilty of trespassing during the January 6 attack on the U.S. Capitol. In November 2022, the New Mexico Supreme Court upheld the removal and lifetime disqualification from public office of Griffin under Section 3 of the Fourteenth Amendment — and it reaffirmed its decision in February 2023.
Various legal experts have expressed shock and amusement at Trump’s lame-ass appeal to the Supreme Court. Andrew Weissmann, a former prosecutor under Robert Mueller, calls it “shocking”, “beyond the pale and legally wrong”. Former U.S. Attorney Joyce Vance tweeted “No shame. No decency.” Elie Honig, a former federal prosecutor and legal analyst, calls Trump’s argument that he did not engage in insurrection “weak”. (And because the Supreme Court is not a fact-finding body, they’ll likely throw that portion of Trump’s argument in the trash right away.) Conservative attorney George Conway agrees that Trump’s anti-insurrection argument is “very, very weak”. Ian Millhiser (Vox) goes with “laughably weak”. Overall, Conway says, the appeal is a “bizarre document” that highlights “the fundamental weakness of his position” and “channel[s] Trump’s narcissism”. Finally, he says, “when you go through the issues one by one by one, the way lawyers are supposed to, his case looks terrible.”
Trump’s lawyers claim “not one authority holds that the President is an officer of the United States no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion”. Many MAGA dolts have pointed out that the position of “president” is not listed in the Fourteenth Amendment as an “officer” of the United States. Not surprising, these imbeciles and bottom-of-the-barrel attorneys without careers to ruin by working for Trump are wrong — and they are wrong on a level no one has ever seen before.
James Heilpern, a practicing appellate attorney and a senior fellow at BYU Law School, looked at numerous historical documents, including some from the men who drafted the Fourteenth Amendment. He found several examples that show the term “officer of the United States” encompassed the presidency — at both the time of the country’s founding and when the Fourteenth Amendment was ratified. There is an act of Congress that specifically identifies the president as an officer of the United States; the Postal Act of 1792 specifically identifies the president as an officer of the United States; President Andrew Johnson, who was in office during the drafting and ratification of the Fourteenth Amendment, refers to himself in several proclamations as either the “chief executive officer of the United States" or the "chief civil executive officer of the United States”; during the impeachment trial of Johnson, the president was “implicitly or explicitly” referred to as an “officer of the United States”.
Twenty-five historians with expertise in the Civil War and Reconstruction eras of U.S. history filed an amicus brief to the Supreme Court, agreeing with the state of Colorado that the Fourteenth Amendment’s insurrectionist clause should bar Donald Trump from the 2024 presidential race (and any future race). The brief states that in 1866, when the amendment was passed (it was ratified in 1868), “decision members crafted Section III to cover the President and to create an enduring check on insurrection, requiring no additional action from Congress”.
The Daily Beast reports:
In their brief, the historians gave contemporary evidence from the 1860s and 1870s that this clause was understood to cover the president. Using Senate-floor debate between two members involved in the drafting, they argue that the president was unquestionably included in the meaning of “an officer under the United States.” They also gave evidence from the 1787 Constitutional Convention, in which framers frequently referred to the president as a “national officer.”
“For historians, contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th Amendment is most probative,” the historians wrote. In doing so, they adopted the originalist interpretation of the Constitution that the Supreme Court’s conservative majority has employed in recent rulings, including in the rollback of Roe v. Wade.
During the debate over the drafting of the text of the Fourteenth Amendment, Sen. Peter Van Winkle of West Virginia stated: “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.”
The fact that the president and vice president were not explicitly mentioned as “officer(s) of the United States” was mentioned only once during the discussions. Maryland’s Democratic Sen. Reverdy Johnson asked: “Why did you omit to exclude them?” Lot Morrill of Maine answered: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States,’”. (my emphasis)
Facts. They are amazing things.
The Supreme Court should view Trump’s fake elector documents as MAGA’s de facto proclamation of secession, according to Salon’s Kirk Swearingen.
. . . Trump at the very least gave aid and comfort to the mob he had called to Washington, DC. You also know he refused for hours to call them off as they broke through police lines, engaged in vicious hand-to-hand combat with officers of the law, and rampaged in the Capitol.
When Trump finally called off the mob (only when he saw his insurrection had failed), he spoke of his love for them and how “special” they were (even though he reportedly was embarrassed by how low-class and “trashy” they looked as he otherwise thoroughly enjoyed watching the mayhem on television). In sending them home, he made sure to repeat his Big Lie about the election results which, to Trump and his mob, justified the whole thing. . . .
He’s still praising members of his ragtag insurrectionist army, many of whom are rightly in jail. He calls domestic terrorists “patriots” and says he will pardon them if he becomes president again. . . .
As others have noted, Section 3 of the 14th Amendment is not a penalty but a disqualification. If you have proved yourself to be a danger to the continuation of the country or a state in our union, you can no longer appear on any ballot for any governmental position. . . .
Trumpists may not have officially seceded from the nation to set up their own government with a new capital, but they’ve worked a relentless inside job on our government and sense of national unity, destroying norms of conduct, speaking of political opponents as enemies (and worse, most recently, vermin), calling the free press “the enemy of the people” and insisting on what they like to call “alternative facts” to confuse voters. They and their media cynically push a narrative of victimhood to gin up MAGA.
These people long ago left the rest of the nation. Trump never tried to be president of all the people, just for his “fans.” . . .
The leaders of the Confederacy wrote God into their new constitution and proclaimed a new “Christian nation.” With the creeping help of dominionist evangelical leaders pushing “spiritual warfare,” Trump raised his cult army and prodded them to act violently. . . .
As historian Jill Lepore notes in an essay in The New Yorker, Jefferson Davis gave a farewell speech to his fellow senators in 1861 before he became president of the Confederacy. They were traitors to their country . . . although they also cynically used religious belief and relied on other alternative facts to propagandize their cause. . . .
To take the argument a bit further, what was the Confederacy but a distinctly anti-democratic enterprise, one that attempted to enshrine a white patriarchy forever? Sounds completely familiar, except that the current leader of those trying to destroy the country and enshrine minority rule forever has different models of dictators to learn from — such as Adolf Hitler, Vladimir Putin, and Victor Orban. One should not forget that the Nazis sent lawyers to this country to learn from our white supremacist Jim Crow laws. You would not be unjustified to imagine the Confederate battle flag morphing into the swastika.
Trump is a hero to many in the South and many Western states . . . as a rough-and-ready fellow rebel. Of course, he decried the removal of the many statues of traitors that were erected in the old South by The United Daughters of the Confederacy in the first decades of the 20th century as a public relations sop to the “Lost Cause” myth. . . .
The motto of the Confederacy was Deo Vindice, Latin for “God will protect, defend or avenge.” Sound familiar?
So is it democratic to remove Trump’s name from the ballot? As others have noted, yes, it is. Courts make decisions all the time, based on the Constitution, that voters have no say in. And the call to “leave it to the voters” means nothing to Trump, given that he disputed the 2016 election results, before and after, and continues his Big Lie about the 2020 election. . . .
The truth is, Jan. 6 was not even the culmination of Trump’s insurrection against our government. He’s still at it, riling up his crowds with the Big Lie and engaging in agitprop against American leaders, critical governmental institutions, individual judges, poll workers, journalists — anyone who dares speak out against him. . . .
As much as Trump likes to performatively grope the American flag, he might as well have been wrapped in the Confederate flag on Jan. 6, 2021, and singing Dixie as his violent mob departed from his scene of a thousand crimes and many grievous injuries, some fatal. The 14th Amendment disqualification applies here no matter how you look at it.
No American should ever forget that for the first time in our history, a Confederate flag was carried through the U.S. Capitol by a member of Trump’s mob. . . . [A]s Peniel E. Joseph writes in The Atlantic, the work of Reconstruction must go on.
Amanda Marcotte (Salon) says the fear of violence from Trump’s closed-minded foot soldiers is not a reason to refuse to follow the Constitution because MAGA is always whining, always playing the victim about something — and they will whine about this. To which I say, in words they might recall: Fuck Your Feelings.
Despite hand-wringing mainstream media coverage calling it “controversial,” the most remarkable aspect of the debate over whether Donald Trump should be banned from accessing the ballot is how one-sided it is. Once you start reading about legal arguments on each side, what becomes swiftly clear is there is no good argument for keeping Trump in the race. . . .
Most arguments for allowing Trump on the ballot rely on treating the Constitution's clear guidance as merely optional. They claim it’s vaguely “undemocratic” to deny Trump supporters their number one pick going into the election. This also falls apart under the slightest scrutiny. Even more Americans would like a chance to vote for Barack Obama again, but he can’t run because of term limits. Millions would love to vote for Taylor Swift, but she isn’t old enough. If those minor restrictions can be honored, surely the much more pressing need to keep a man who is running to end democracy off the ballot is valid. . . .
So bereft of any legal argument for keeping Trump on the ballot, there is always the argument of last resort: Taking their butt-smelly orange master off the ballot will draw a “backlash” from MAGA.
There are two camps making this argument: outright Trump supporters and bed-wetting centrists who don’t want to face up to the fact that we live in perilous times that require unprecedented action to save our democracy.
Of the first camp, there is little to say. They’re Trump supporters and therefore incurably dishonest. The latter, however, is gaining traction with their short-sighted stance that prioritizes their immediate fear of being yelled at over the long-term dangers to our democracy. For instance, Jonathan Chait of New York offered a typical knock-kneed argument, writing that disqualifying Trump “would be seen forever by tens of millions of Americans as a negation of democracy.”
What is this “would” you’re talking about, Jon? The voters in question are MAGA voters, who already claim that democracy was ended in 2020. Polling shows fewer than a third of Republican voters accept that President Joe Biden won in 2020. . . . They’re already there. . . .
Ultimately, it comes down to this: Who cares if MAGA voters are mad? They’re always mad.
MAGA means you live in a perpetual state of unjustified grievance. . . . Every morning, there’s a new excuse for why it’s time to end democracy and replace it with a Trump-led fascist state. The only difference here is that . . . taking Trump off the ballot is a meaningful step towards preserving democracy. . . .
People fear something worse will happen if those MAGA people get organized to violence again.
As Zack Beauchamp wrote at Vox this week, “Trump’s most fanatical followers have created a situation where challenging him carries not only political risks but also personal ones,” and this threat of violence “is quietly reshaping American politics.” It’s almost certainly a factor in the pretzel logic being rolled out by officials and judges who have defied the plain reading of the law to keep Trump on the ballot. . . .
We were reminded of the threat Wednesday, when multiple state capitols were evacuated due to bomb threats. But, by keeping Trump on the ballot, all that we’re doing is temporarily delaying MAGA violence. As Brynn Tannehill wrote Wednesday at the New Republic, polling data shows “an unbreakable plurality of the GOP explicitly wants fascism.” . . .
[T]he very same people who will throw a fit if Trump is removed from the ballot will go absolutely haywire if he loses another election. . . . And if Trump wins or successfully steals the next election? MAGA won’t be placated then, either. As Trump has indicated, the goal is “retribution.” Fascists are infamously sore winners, who react to seizing power by lashing out violently against everyone they hate. The longer we put off dealing with the issue of MAGA’s violence, the more their sadism will fester and expand. . . .
The good news is we do know what prevents MAGA violence . . . punishing violence with swift certainty. Fear of consequences is the only thing that checks these folks . . . We’ve seen this since January 6, where widespread arrests and convictions of the rioters has done a great deal to tamp down MAGA enthusiasm for another riot.
On the flip side is Trump, who hasn’t yet faced any meaningful consequences for January 6. As a result, he’s doubled down on his violence, calling for it so routinely that it doesn’t even make the news anymore. . . .
You don’t stop MAGA violence by giving in, but the opposite. You stop it by fighting back and holding people accountable. Removing Trump from the ballot, as the law requires, is a first step. It sends a strong message to MAGA: This is what happens when you use violence to get your way. By not taking his name off the ballot, states are signaling that they will accede to violent threats. We should not be surprised if rewarding MAGA violence means we see more of it.
Congresswoman Madeleine Dean (D-PA) appeared on MSNBC on Tuesday evening:
Have you ever heard a candidate for president or a sitting president or a former president say, ‘Yes, I want to run on the basis that I’ll be immune from any crimes that I commit should you elect me.’ It’s an absurdity on its face. . . . We had a president resign because he was unable to uphold the law. So I find it just an absurdity, and that’s what I’d like citizens to know. Beyond all the legalisms around this, this is literally a candidate for president who is trying to run for president by saying ‘When I'm president again, I want to be and believe I should be immune from any criminal prosecution.’
When it’s put like that, which is accurate, it’s a wonder that anyone with a functioning mind takes it seriously.
Before Dean spoke, MSNBC host Ali Velshi stated:
. . . more importantly, this court deemed in its decision that, in fact, being able to hold a president liable for crimes committed that are not part of the execution of his duties would be a positive incentive . . . presidents should look over their shoulders if they’re going to commit a crime in office.
What a concept. If future presidents were charged with crimes when they left office (or maybe even they were in office!), that would be amazing. It won’t happen, of course, that’s never been the American way. I fully support Joe Biden being charged in the Hague with aiding and abetting genocide. I can imagine a scenario in which Genocide Joe loses the upcoming election in large part because young voters abandoned him after he provided weapons worth tens of billions of dollars to mass murderers who have publicly stated their desire to commit genocide. #FJB