Two distinguished constitutional scholars affiliated with the Federalist Society published an article in the New York Times accusing former President Trump of insurrection on January 6, 2021. These scholars cited Section 3 of the 14th Amendment to the Constitution which bars any individual from seeking public office if they participated in an insurrection against the government and had previously sworn an oath to protect the Constitution. William Baude of the University of Chicago and Michael Paulsen of the University of St. Thomas contend that Mr. Trump should be barred from seeking public office based on his role in the January 6th insurrection.
Following this article, several states including Colorado, Florida, Ohio, Minnesota, and Wisconsin have begun examining the possibility of applying the 14th Amendment to prohibit Mr. Trump from appearing on their primary ballots. With Mr. Trump the presumptive GOP nominee, this raises significant political as well as legal questions such as: Does the 14th Amendment apply to Mr. Trump’s actions, and if he is barred from seeking public office, what are the political implications? These questions are examined here.
State Attorneys General and other legal scholars have reviewed the applicability of the 14th Amendment and have concluded that the insurrection clause should apply to Donald Trump. In their minds the language is clear. Insurrection is defined as rising up against the government usually with violence. Section 3 bars from office anyone who has “engaged in insurrection” or given “aid and comfort” to enemies of the United States. To these individuals the language is clear. Mr. Trump led a violent insurrection on January 6th to retain his Presidency and prevent the Congressional vote to elect President Biden. He should be barred from public office.
Not all Constitutional scholars agree that the insurrection clause of the 14th Amendment applies to Mr. Trump. They cite two reasons. First, the Amendment was originally applied to Southern leaders after the Civil War. This was a monumental event in our history where approximately 625,000 died. January 6th was violent but was not on the scale of the civil war. These scholars contend that the Amendment should be applied only to those kinds of monumental events, not January 6th.
The second reason is the nature of the insurrection charge itself. None of the individuals charged in the January 6th riot were charged with insurrection. That includes Mr. Trump. These scholars argue that the Justice Department would have brought charges of insurrection if they thought they could get a conviction. Yet they did not. Therefore, they must have thought the case was weak. Also, during the second impeachment trial, one of the charges against Mr. Trump was insurrection. Yet the Senate did not find him guilty of that charge.
This issue will most likely end up at the Supreme Court where the nine judges will make a final legal interpretation. Whatever the legal decision may be, politically we should be wary of barring Mr. Trump from holding public office via the 14th Amendment. A Monmouth poll last year showed that only 52% of respondents believed that January 6th was an insurrection. Disqualifying Mr. Trump when almost half of the country thinks that no insurrection occurred would further polarize our nation. Also, using judges to keep Mr. Trump from public office would deprive voters. Judges would be deciding our candidates for the election.
The way to defeat Mr. Trump and Trumpism is to beat him soundly at the ballot box. Maybe then the Republican Party will finally realize that MAGA and Mr. Trump are losing propositions and will retire Mr. Trump to Mara-a-Lago. Using the 14th Amendment may be a tempting method, but we are a democracy. Let the people decide.