Why Twisting The 14th Amendment To Get Trump Won’t Hold Up In Court

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 seconded the 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.

Section 3 distinguishes between “rebellion” and “insurrection,” and we have a contemporary guide to the meaning of that distinction. In the Prize Cases (1863), the Supreme Court declared that “[i]nsurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government.” “Insurrection” therefore refers to political violence at a level lower or less organized than an “organized rebellion,” though it may develop into that. Trump may have been an “insurrectionist” but not a “rebel.”

Almost half the respondents in a 2022 CBS poll rejected the claim that the events of Jan. 6 were an actual “insurrection” (with the divide tracking partisan lines), and 76 percent viewed it as a “protest gone too far.”

Other considerations also call into question the claim that Trump instigated an “insurrection” in the constitutional sense. If it were clear that Trump engaged in insurrection, the Justice Department should have acted on the Jan. 6 Committee’s referral for prosecution on that charge. Special Counsel Jack Smith should have indicted him for insurrection or seditious conspiracy, which remain federal crimes. If it were obvious that Trump had committed insurrection, Congress should have convicted him in the two weeks between Jan. 6 and Inauguration Day. Instead, the House impeached Trump for indictment to insurrection but the Senate acquitted him.

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