We are living in unusual and historic times. The radical left is gearing up to stop Donald Trump’s campaign for the presidency by keeping him off the ballot in as many states as possible.
This unprecedented action is based on the idea that because Trump participated in/led an “insurrection” or “rebellion” on Jan. 6, 2021, he is ineligible to run for federal office because of the language of Section Three of the 14th Amendment to the Constitution.
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.
Proponents of kicking Trump off the ballot based on the Disqualification Clause have a steep hill to climb. They are going to have to prove to 70 million Trump voters that the events of Jan. 6, 2021, represented an “insurrection” or “rebellion” against the United States government and that Trump either participated in the action of that day or, as the January 6 Committee has been trying to prove for two years, that Trump was behind it.
Good luck, fellas.
The biggest threat to the Constitution is not Donald Trump but those who would use a Civil War-era legal cudgel that barred Southern politicians who served in the Confederate Army or legislatures from holding federal office as a modern partisan weapon. By hugely broadening the definition of “insurrection” and “rebellion,” Section Three would “become a dangerously convenient tool of partisan politics, as David Frum in the Atlantic points out.
Even NeverTrumper Frum thinks it’s a fantasy to believe that using the Disqualification Clause will keep Trump off the ballot.
First, the section does not apply only to candidates for president—it does not even mention the president. It mentions senators, House members, electors, and civil and military officers of the United States or any state. The section appears to apply to the presidency only as part of that final catchall category.
Second, that phrase “aid and comfort to the enemies thereof”—what does that mean? The language is copied from Article III, Section 3 of the Constitution. But there, the language was drafted to make it difficult to convict an accused person of crime: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
The practical application of the Disqualification Clause relating to Trump is one of the truly nightmarish scenarios in American politics. Suppose some of the Section Three challenges to Trump’s ballot access are successful. Democratic secretaries of state would be free to remove Trump’s name from the ballot in states like Pennsylvania and Michigan.
Biden would be easily re-elected, right? Strap it down because the U.S. would be in a race to oblivion.
How in the world are Republicans likely to react to such an outcome? Will any of them regard such a victory as legitimate? The rage and chaos that would follow are beyond imagining.
And then what? If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as “aid and comfort” to enemies of the United States. Didn’t progressive Representative Ilhan Omar once seemingly equate al-Qaeda with the U.S. military? Do we think that her political enemies will accept that she was making only a stupid rhetorical point? Earlier this year, Tennessee Republicans tossed out of the legislature two Black Democrats for allegedly violating House rules. Might Tennessee Republicans next deem unruly Democrats “rebels” forbidden ever to run for office again?
The United States — the most litigious society in the history of civilization — would see a collapse of government and probably civil society.
The fact is, trying to prove that Trump engaged in an insurrection or rebellion is not possible. This is especially true since Trump — eventually — begged his supporters to leave the Capitol building peacefully. It doesn’t make any sense that Trump would order an insurrection and then voluntarily cut it short.
But the problem of the 14th Amendment remains, given that Democrats are going to do their best to disqualify Trump in at least some states. Ultimately, the issue will be decided by the Supreme Court, where the rights of states to run their own elections and the exigent needs of the United States government will clash, giving us an unknown result.