Trump appears barred by Section 3 of the 14th Amendment from running for president

David French, in an op-ed column in the New York Times on January 4, 2024, lays out in cogent arguments why the Supreme Court should apply the plain text of the Constitution and hold that Donald Trump is barred from running for president by Section 3 of the 14th Amendment.¹

Section 3 of the 14th Amendment to the U.S. Constitution provides the following:

Fourteenth Amendment Equal Protection and Other Rights

Section 3 Disqualification from Holding Office

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.

Part of the breakdown in the Rule of Law in the United States is revealed by the number of calls for the Supreme Court to decide the case of Trump’s disqualification to run for president, one way or another, on the basis of political and/or practical arguments.

This reflects the widespread view, not without justification, that the Supreme Court acts on the basis of political considerations in important cases.

The prime example is its decision in Bush v. Gore in 2000 in which it decided the presidential election in favor of George W. Bush.

The Court reversed the decision of the Florida Supreme Court which had ordered a recount which would have given victory to Gore in Florida and with it the electoral votes to become president.

Since the Florida Court’s decision was based in part on Florida law, the Supreme Court could not reverse the decision without basing its decision on a provision in the U.S. Constitution and a Constitutional right based on such a provision.

No such right existed under the Court’s previous rulings.

So the Supreme Court pulled a rabbit out of the hat, and by tortured reasoning found the Florida Court’s decision violated the equal protection clause of the 14th Amendment.  Moreover, the Court held that its decision, which was based on no precedent, could not be cited as a precedent for the new right it had created out of thin air.

In this manner, the Supreme Court decided the future course of American history.

Think of it: Bush’s invasion of Afghanistan after September 11, 2001, Bush’s invasion of Iraq in 2003, Bush’s use of torture in secret CIA prisons and at Abu Gharib, and much more.

It is not an overstatement to say that the Supreme Court’s decision in Bush v. Gore changed the direction of U.S. history, and not in a good way.

The decision cost the Supreme Court much of its legitimacy and authority in the coming years, as the process of nomination and confirmation of Supreme Court justices became overtly political.

Senate Majority Leader Mitch McConnell refused to allow hearings or a floor vote on Barack Obama’s nomination of Merrick Garland in 2016, depriving the Democrats of a justice they had nominated who surely would have been confirmed had McConnell not resorted to strong-arm tactics in the Senate to thwart such an outcome.

After Donald Trump became President in 2017, he nominated Neil Gorsuch to the Court. Gorsuch was confirmed in a bitterly-contested partisan vote in the Republican-controlled Senate.

Let us now hope that the Supreme Court will uphold the Rule of Law by applying the plain text of Section 3 of the 14th Amendment and ruling that Donald Trump is disqualified from running for president in 2024–or ever again.²

It is time to end the politicization of the Supreme Court.  Pulling another rabbit out the hat to ignore Section 3 would destroy what is left of the Court’s legitimacy and authority.

In contrast, a decision based on the plain text of Section 3 of the 14th Amendment would be a necessary and important step toward restoring the authority of the Court.

Should the Court nonetheless ignore the plain language of Section 3, Congress should expand the composition of the Court in order to dilute its partisan political role.

James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.

1. David French, “The Case for Disqualifying Trump Is Strong,” New York Times, January 4, 2024.

Comment and Reply

Michael Mauldin

1/4

It seems simple. I believe Trump to be guilty of treason. But unfortunately he has not had his day on court.

REPLY (1) James Rowles

Author

Thanks for your comment, Michael.

Section 3 of the 14th amendment applies to those eho "shall have engaged in insurrection or rebellion against the (U.S.) or given aid or comfort to the enemies thereof." Shibboleths like "everyone has a right to his day in court" depend on context to be true. Slaveholders did not have a right to a day in court before slaves became free under the 13th Amendment.

Nonetheless, in fact in the Colorado judicial proceedings Trump did have his day in court. And he will in Maine as well, though he already did have a chance to participate in an administrative proceeding prior to the Secretary of State's ruling that he was ineligible to be on the ballot.

It's a simple matter of applying the plain language of the Constitution. In banana republics, there are endless arguments about why the plain text of the law should not be applied. Are we becoming a banana republic?

Courts and judges must be courageous and overcome any fear they may have of the violent reactions of Trump's supporters. They and their families must be provided with all necessary security to ensure their personal safety and that of their staffs.

Sometimes the rule of law comes down to black and white, not the endless speculations of commentators on the cable news programs.

It may come down to "Gunfight at the OK Corral".

Abraham Lincoln faced that, and upheld the Constitution.

Do we and the Supreme Court have the courage to do the same?

***

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2. UPDATE:

See Gerard N. Magliocca, “What the Supreme Court Should Not Do in Trump’s Disqualification Case, New York Times, January 5, 2024.