A debate over the 14th Amendment has cropped up as a wonkish sidebar to the 2024 election. The question at hand: can candidate Donald Trump be barred from the ballots under the Fourteenth’s ‘Insurrection Clause?’
Obviously, the answer will have serious and far-reaching implications.
The Insurrection Clause and Donald Trump
To gauge whether Trump could potentially be barred from the ballot, let’s consider the language of the Insurrection Clause, which was ratified in 1868 to prevent former Confederate leaders from serving in Congress.
“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.”
The clause is a mouthful. And it’s being considered closely, for the first time in over a century, in light of Trump’s actions relating to January 6th. The Insurrection Clause has “rarely been discussed – let alone invoked,” since the immediate aftermath of the Civil War.
“Until recently,” said law professor James Gardner, “nobody would have said that there was even a real chance of a sort of rebellion or insurrection against the United States of the kinds the amendment would deal with. Now is certainly the most important context to which the provision is relevant since the 1870s.”
The invocation of the 14th Amendment to keep Trump off the ballot seems like a long shot. Almost unfathomable. According to Gardner, “there is legal consensus in the legal field that [invoking the 14th Amendment] is worth looking into it.”
I have a feeling Gardner may be overstating the consensus, that you could find some pro-Trump legal scholars who do not agree that the Fourteenth Amendment applies to Trump and January 6th. Regardless, the final decision won’t be up to legal scholars but a court. And unless a court intervenes, Trump’s name will be appearing on the ballot.
The Supreme Court may weigh in
If the Fourteenth Amendment issue is raised in the judicial system, the Supreme Court would likely weigh in. Otherwise, you could have a situation where Trump appears on the ballot in certain states, but not in others.
“I think that the situation that would be most fraught is if the state courts in New York and California throw him off, but the state courts in Alabama and Georgia keep him on,” Gardner said. “So, then you’d have a disagreement among perfectly well-authorized judicial systems…It needs to be decided by the Supreme Court for everybody.”
If the Supreme Court did weigh in, their opinion is sure to be controversial and unpopular – no matter what is decided. If SCOTUS rules that Trump may remain on the ballot, liberals will argue that the conservative majority ruled with a Trump-bias. If SCOTUS rules that Trump must be stricken from the ballot, well, conservatives will riot in the streets.
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.