The 14th Amendment is trending right now – and not for the reasons you might think. When I went to law school, we discussed the 14th Amendment with respect to the due process clause, or the privacy clause.
But right now, it’s the insurrection clause (a bit of obscure post-Civil War that bars an individual from holding public office if they “have engaged in insurrection or rebellion”) that has the 14th Amendment trending.
Here’s what the insurrection clause says:
“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 office of the United States, or as a member of any State legislature, or as an executive or judicial office of any State, to support the Constitution of the United States, shall have engage 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.”
The question now is whether Donald Trump violated the insurrection clause.
The insurrection clause and the 2024 election
“Before any votes are cast in the 2024 presidential election,” The Washington Post reported, “Donald Trump could face a legal battle on multiple fronts over whether he even has the right to be on the ballot.” The premise for the legal challenges? The 14th Amendment. Specifically, the insurrection clause – which some scholars and liberal groups are arguing bars Trump from appearing on the ballot. “They argue that under Section 3 of the 14th Amendment, Trump is ineligible for the presidency because he took the oath of office and subsequently “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies” during the Jan.6, 2021, insurrection,” The Post reported.
The issue will likely be contended on a state-to-state basis, at least initially. But eventually, the issue will ascend to the federal courts.
“When it gets to the Supreme Court, as it surely will,” said constitutional law professor Laurence H. Tribe, “this will test the dedication of the justices to principles of law, more than almost anything has for a very long time because they will obviously realize that telling the leading candidate of one major political party, ‘no, no way, you’re not eligible’ is no small matter.”
The employment of the 14th Amendment will obviously have profound effects – as the Wall Street Journal editorial board noted when stating that a 14th Amendment challenge would be more damaging to democracy than just letting the voters decide the 2024 election.
Of course, constitutional interpretation is not up to the voters – it’s up to the judiciary – but forcing a constitutional question rather than allowing the election to take its course naturally would be seen (to many) as politically-motivated interference.
Can you imagine? If the courts ruled that Trump was ineligible for the election? If Trump were stricken from the ballot? There are ways to prevent Trump from reclaiming the White House – say, running an compelling candidate and just flat-out winning the election – that do not rely upon a constitutional disqualification and which will cause significantly less collateral damage.
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.
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