Four indictments of Donald Trump have so far done no more to stop him than two earlier impeachments did. He remains easily the front-runner in the Republican primaries, and in some polls is running equal with President Biden. But now a theory defended by able legal scholars has emerged, arguing that Trump is constitutionally disqualified from serving as president.
Even if Trump secures enough electoral votes to win the presidency next year, legal Professors Michael Paulsen and Will Baude argue, the 14th Amendment to the Constitution would disqualify him from federal office. Former Judge Michael Luttig and Professor Laurence Tribe have enthusiastically secondedthe theory. While their theory about the continuing relevance of the Constitution’s insurrection clause strikes us as correct, they err in believing that anyone, down to the lowest county election worker, has the right to strike Trump from the ballot.
Ratified in 1868, the 14th Amendment is a load-bearing constitutional pillar erected during the Reconstruction period. Section 3 deals with the treatment of former state and federal officials, and their allies, who had taken sides with the Confederacy in the Civil War:
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.
Although Section 3 unquestionably applied to Confederates, its text contains nothing limiting it to the Civil War. Rather, it has continuing relevance to any future “insurrection or rebellion.” Although it does not explicitly refer to presidents or presidential candidates, comparison with other constitutional texts referring to “officer[s]” supports the interpretation that it applies to the presidency too.
Please think about donating below.