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December 22, 2023
The 14th Amendment’s barring of insurrectionists who had previously taken an oath to defend the Constitution has come into play in national politics in a way never seen before. President Trump, who, after losing in 2020, seeks election in 2024, may never even reach the ballot to make it so. As a result of the January 6th attack on the Capitol Building, many have argued that Trump is no longer eligible to run for re-election.
In post-Civil War America, the third section of the 14th Amendment was included to prevent former Confederates from seeking office. The language of the section disqualifies those who, having taken an oath to protect the Constitution, “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Under President Grant, however, the Amnesty Act of 1872 lifted the prevention of former Confederates from running for office for the vast majority, with the exclusion of the Confederacy’s most senior officials.
In a piece in The Atlantic, former federal judge J. Michael Luttig and legal scholar Lawrence Tribe argue, “Section 3’s disqualification clause has by no means outlived its contemplated necessity, nor will it ever, as the post–Civil War Framers presciently foresaw.” They argue that Former President Trump is disqualified from office, and the Colorado Supreme Court recently indicated they agree.
In a 4-3 decision, the majority held that Trump cannot be on the ballot in the state as he is barred by Section 3. A Harvard Law Professor, Noah Feldman, in a Bloomberg piece, warns that the Supreme Court may rule differently if asked to do so through appeal. He cautions that, “Given the unprecedented nature of the case and the court’s composition, it’s likely that the justices will overturn the Colorado decision.” On the other hand, one of the petitioner’s attorneys in the Colorado case, Mario Nichols, believes, “… there’s actually a very good chance we can win at the U.S. Supreme Court level.” He cites the Colorado Supreme Court’s majority’s reliance on Justice Gorsuch’s writings on candidate disqualification.
Ultimately, it is impossible to know how the Supreme Court would rule. During the 2020 election, the justices were not very receptive to Trump’s election challenges, but the Section 3 issue involves very different circumstances than those lawsuits. Should Trump be disqualified by a ruling from the nation’s highest court, it would almost certainly heighten tensions in the Republican primary, where some sixty percent of voters who previously planned to support Trump would have to decide on another choice.
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