There is a movement in some legal circles gaining momentum in recent days that seeks to disqualify Donald Trump from running for president based on language in Section Three of the 14th Amendment to the Constitution which bars a candidate from running for federal office “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.”
Two Federalist Society scholars have written a paper due out early next year that concludes that Donald Trump is disqualified from running for any federal office because of his actions on Jan. 6, 2021. For the same reason, two liberal scholars, Judge J. Michael Luttig and Larry Tribe, have made a similar case in The Atlantic
The two Federalist Society professors, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas spent more than a year researching the issue — one that was guaranteed to be raised in any lawsuit filed to keep Trump off the ballot. What’s most disappointing is that these”originalist” scholars are advancing a legal theory that goes against the original intent of Section Three.
A fair reading of the text and history of the 14th Amendment makes it relatively clear, however, that the disability provision was intended to apply to those who served the Confederacy during the Civil War. It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.
Boude and Paulsen try to make the case that it isn’t necessary for there to be a mechanism, procedure, or criteria to decide who would be disqualified and who wouldn’t be disqualified.
“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.”
But Dershowitz points out that the absence of legislation, convictions, or other judicial action “demonstrates that the amendment did not lay down a general rule for future elections involving candidates who were not part of the Confederacy. It was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination.”
In the absence of any such designation, it would be possible for individual states to disqualify a candidate, while others qualify him. It would also be possible for the incumbent president to seek to disqualify his rival, or for a partisan congress to do so. There is no explicit provision for the courts to intervene in what they might regard as a political question. So elections might be conducted with differing interpretations of eligibility and no procedures for resolving disputes about them. It is absolutely certain that if Trump were disqualified by some person or institution dominated by Democrats, and if the controversy were not resolved by the Supreme Court, there would be a constitutional crisis.
Or a civil war.
Any litigation in this effort to disqualify Trump would necessarily involve a definitive ruling on whether the mob’s actions on January 6, 2021, constituted an “insurrection” or “rebellion” against the United States government or whether it was a legal demonstration that turned into a riot.
Ever since January 7, 2021, the left has been striving to turn what happened that day into something it wasn’t; an organized attempt to overthrow the United States government. Before Democrats can disqualify Trump, they’re going to have to prove that Trump incited a coup against the government.
And that’s not going to happen.