The Fourteenth Amendment: Toothed or Toothless against Trump?
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Few people are as controversial as Donald Trump. Even after 7 years, 4 indictments, and over 50,000 tweets, the former president and current Republican lead candidate seems to be just as controversial as when he clinched the 2016 Republican nomination. Many feel that history will repeat itself with Trump again winning the nomination and perhaps the presidency, ushering in another 4 years of chaos. However, Trump may actually be constitutionally prohibited from running for office. To understand why, let’s consult a rarely discussed portion of Section 3 of the Fourteenth Amendment, which reads:
“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.” (Fourteenth Amendment to the Constitution, emphasis added)
The Fourteenth Amendment was ratified in wake of the Civil War, seemingly designed to prevent the old Confederate leaders from being reelected to the reformed Union, quelling their secessionist goals. However, importantly, the amendment is not explicitly limited to the Civil War. It prohibits anyone that has engaged in “insurrection” or “given aid” to insurrectionists from running and holding office. Although the legal reasoning and case law regarding insurrection is sparse, since the Fourteenth Amendment was ratified in 1868, at least eight public officials have been barred from public office; this includes, most recently, a county commissioner in New Mexico who was barred from office under Section 3 in 2022 for personally engaging in the January 6, 2021 storming of the Capitol. How does this relate to Trump? Multiple hearings, congressional inquiries, and ultimately criminal indictments towards the former president implicate Trump in the January 6, 2021, storming of the Capitol. Many, including the House panel investigators, call these events an “insurrection,” or an attempt to overthrow the government and deem Trump’s speech as having “given aid” to those who committed the acts on January 6th.
While it is not yet certain that Trump’s speech will be deemed an act of insurrection, if it is, under the literal reading of the Fourteenth Amendment, Trump would be prohibited from holding the presidential office. Many argue that under this literal reading of the Fourteenth Amendment, Section 3 is self-executing because state officials, who are in charge of determining who qualifies for the ballot in their state, can simply refuse to put Trump on their ballot, citing the Fourteenth Amendment as justification. This would mean that any state official could unilaterally act to prevent Trump from running for President by removing him from their state’s ballot, which would deter voters from being able elect Trump into office. In fact, under this theory, deciding to remove Trump from the ballot may not even require Trump to be convicted of the crime of insurrection. It could theoretically be enough for a state official to decide that, politically, Trump is disqualified.
However, even ignoring this problem of relying on 50 or more state officials to make independent political judgments about the suitability of a leading candidate for office, precedent and many state officials themselves do not favor this aggressive interpretation of the Fourteenth Amendment. The existing case law relies upon a court decision to bar one from office, which de-fangs the self-executing nature of the wording in the Fourteenth Amendment. This renders Section 3 toothless by restricting the self-executing interpretation to the Civil War era and effectively nullifying its application to current politics. Under this approach, Trump would not be automatically disqualified from being re-elected. While there is serious debate about the sparse legal precedent and its applicability, Trump being able to be re-elected (pending an official conviction) is the likely outcome in this case, which is in line with the statutory concept in place of “innocent until proven guilty.” Additionally, beyond the issues of precedent and execution, there is significant legal debate about whether the presidency is even an “office” included in the Fourteenth Amendment’s jurisdiction, which would mean that even if Trump is convicted, he might not be barred from being elected as President.
While a reading of the Fourteenth Amendment as self-executing is unlikely to be upheld, it is essential that the Supreme Court makes a decision on this matter before either the Republican primary or Trump’s impending criminal trials. While congress could simply pass a law removing the prohibition from Trump, this does not appear likely in the current political climate, given that, along with a lack of Democratic support, many Republican congresspeople have also actively voiced opposition against Trump’s re-election. Additionally, given the recent ousting of the speaker of the house, it is likely that even if congress wanted to pass a law to allow Trump to run for president, they would be unable to get the bill through both houses of congress in time for the Republican primary. A Supreme Court decision would serve the dual purpose of appearing impartial (by making a decision before, and not after, an “unwanted result” were to occur) and preventing havoc in the upcoming election. Considering its Republican supermajority and its ability to interpret the constitution and set binding precedent, the Supreme Court is uniquely positioned to make a ruling against Trump that will be perceived as less biased by both sides. Additionally, by making this ruling before Trump is either convicted or elected, the Court avoids the dangers of appearing biased towards a political conclusion.
The consequences of delaying a decision on this issue are severe: as Trump is by and far the leading Republican candidate and the leading candidate for the Democratic party, incumbent President Biden, is not the clear winner against Trump in the polls, if Trump becomes ineligible to run for President after receiving the Republican nomination, the Republican party will be completely upended. Similarly, if the court waits to rule on this matter, they risk both state officials making the decision for them at the state level by state officials removing Trump’s name from their ballots or disqualifying a candidate mere months before the general election. The best way to avoid these potential issues is for the Court to quickly and decisively rule on the reach of the Fourteenth Amendment and how it applies to both the convicted and non-convicted Trump.
Suggested Citation: Loriana Goulding, The Fourteenth Amendment: Toothed or Toothless against Trump?, Cornell J.L. & Pub. Pol’y, The Issue Spotter (October 23, 2023), https://live-journal-of-law-and-public-policy.pantheonsite.io/the-fourteenth-amendment-toothed-or-toothless-against-trump/.
Loriana Goulding is a second-year J.D. candidate at Cornell Law School. She obtained her undergraduate degrees in Psychology and Korean from Brigham Young University. Prior to law school, Loriana completed an internship with the Utah Department of Corrections’ inmate treatment programs and worked as a mediator for business disputes.