The 14th Amendment Solution?

A few thoughts about the latest gambit to bar Donald Trump from office.

Photo by Anthony Garand on Unsplash

The hard-working staff here at Spoiler Alerts has been enjoying their vacation. But there are only so many lobster rolls and ice cream cones one can savor in a single week. There are only so many times the Boston Red Sox can trounce the New York Yankees— ha ha ha I lied about that, there can never be enough Red Sox sweeps of the Yankees! Even I am beginning to feel sorry for fans of the Bronx Bombers, however. So as I started switching channels, this caught my eye:

If you don’t want to watch the video, here’s the basic rundown. Judge Luttig and Professor Tribe are among the many who are arguing in print that Section Three of the 14th Amendment — a.k.a., the disqualification clause — means that Donald Trump cannot hold the presidency.

Here’s the full clause, with the relevant portions bolded:

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.

Trump’s aid and comfort provided to the January 6th insurrection sure seems relevant here! Furthermore, two Federalist Society scholars, Will Baude and Michael Stokes Paulsen,¹ argue in a forthcoming University of Pennsylvania Law Review article that:

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

The New York Times’ Adam Liptak reported that, “Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the article ‘a tour de force.’”

Unsurprisingly, not everyone agrees on who has the standing to enforce and/or contest this interpretation of the 14th Amendment. The obvious way for this to be settled is through the courts. The Washington Post’s Edward Foley argues that a state legislature should enact a law making it clear that “its election officials have the power to remove insurrectionists from the presidential ballot.” This would allow litigation that would make it to the U.S. Supreme Court: “For the sake of the nation’s system of self-government, the Supreme Court must settle the question of whether Trump constitutionally can be president again — before the Republican convention is held next July. Ideally, this case would be settled before the primaries begin in January. Realistically, however, that might not be possible.”

If you’re reading this far down, you must be wondering, “Hey, Drezner, what do you think of all this?”

I think I think the following:

1. A plain-text reading of the relevant clause of 14th Amendment is super-straightforward. Trump fomented an insurrection based on baseless claims that he had won in 2020. As far as I’m concerned he’s disqualified! The fact that legal scholars across the political spectrum largely agree buttresses this point.

2. The fact that this legal finding might not be justiciable before the 2024 primaries get under way is a colossal failure on multiple levels. Republican Senators could have decided to vote to remove him, particularly during the second impeachment trial, but they didn’t. GOP leaders could have united to denounce and ostracize Trump following January 6th, but after a few confused weeks they decided to appease him. As David French observed in the New York Times, “Because of G.O.P. cowardice, our nation is genuinely facing the possibility of a president’s taking the oath of office while also appealing one or more substantial prison sentences.” It’s important to remember that we currently face a set of suboptimal choices because Republicans punted on the optimal choices thirty months ago.

3. French goes on to note that, “Republicans have also punted to the American voters, suggesting that any outstanding questions of Trump’s fitness be decided at the ballot box.” And this is the real problem here. In the past, aspirants for the highest office in the land who beclowned themselves and the country usually faded from view because voters deserted them. Political partisans abandoned one-term presidents like Herbert Hoover, Jimmy Carter, and George H.W. Bush after they lost their re-election campaigns. Trump’s #MAGA crowd has stuck with him, and that is the real problem here. Ross Douthat noted in his latest newsletter that, “to try a man, four times over, whom a sizable minority of Americans believe should be the next president, is an inherently political act.” Ross is half-right — a president breaking the law repeatedly to stay in power is also committing inherently political acts that require a response.

4. Gun to my head, I think my political preference is for Trump to lose the popular vote for the third time in a row and the Electoral College for a second time in a row rather than have the 14th Amendment be used as the belated deus ex machina.² If Trump loses again at the ballot box it would be the fourth time in a row in which Trump as the GOP leader led his party to political defeat. That seems like the proper political epitaph for the plutocratic 21st century version of William Jennings Bryan. If the courts pre-empt Trump’s 2024 run, he and his supporters will have the ultimate out for why he didn’t win in 2024.

5. Full disclosure: I might feel differently about this if I believed that Trump’s chances of winning in 2024 were as good as the Beltway class seems to believe. As I’ve stated previously, however, I think Trump is going down yet again in 2024. And as I’ve also stated previously, he needs to lose his power at the ballot box.

1. Full disclosure: I taught Baude as an undergraduate at the University of Chicago. I may or may not have brainwashed him with Straussian-level subliminal doses of critical race theory when he was just a youngling.

2. The court cases, of course, should all proceed against him. The man has obviously broken the law. His co-conspirators have obviously broken the law. I just do not think they will be resolved before the 2024 election.