The Fraught Question of Eligibility

The upcoming presidential election will be one of the most important—and fraught—in our history, largely because of the questions that have been raised about Donald Trump’s eligibility to run for a second term as president.

The most authoritative foundation for these questions is a scholarly paper based on the language of Section 3 of the Fourteenth Amendment to the Constitution written by two conservative constitutional scholars, William Baude and Michael Stokes Paulson. The original work, which I have summarized here, is probably too long and its argument too detailed for most readers, but the summary should make its fundamental elements clear. The summary also contains commentary by Josh Blackman and Seth Barrett Tillman, who disagree with Baude and Paulsen in certain respects.

Recently, Law & Liberty published an excellent discussion by Professor Kurt T. Lash about the ambiguities in the language and legislative history of Section 3 of the Fourteenth Amendment, and this points to the difficulties that the US courts will have in deciding whether former President Trump is eligible to run for a second term. Unfortunately, the more difficulty the courts have in writing a persuasive opinion one way or the other, the more controversy and discord in our politics will result.

The process for bringing this question into the judicial system has already begun, with cases in Colorado and elsewhere now before the courts. There is no question that the issue will eventually reach the Supreme Court, and probably on an accelerated basis as it becomes clear that Mr. Trump could get the Republican presidential nomination in 2024.

If so, Trump’s eligibility to run for president in 2024 will probably be the most difficult and controversial decision in the Supreme Court’s history. Judging by the polls, roughly one-third of the public is very favorable to Mr. Trump, and about half is highly unfavorable. He has an almost insurmountable lead in the polls for the Republican nomination, though it remains to be seen whether his trial in March 2024 may affect those numbers. To declare him either eligible or ineligible to run for president will be a major challenge to the strength and endurance of our democracy. One or the other side will be sorely disappointed and possibly unforgiving.

In summary, Section 3 of the Fourteenth Amendment states that no person who has taken an oath to support the Constitution—and who later breaks that oath by engaging in insurrection or rebellion against the Constitution—is eligible thereafter to hold office under the United States. In his first inauguration, Donald Trump took an oath to support the Constitution, and his critics would contend that he violated that oath by his conduct in attempting to overthrow the 2020 election and by encouraging the riot at the Capitol on January 6, 2021, which may have been an insurrection or rebellion—at least as those words were used in 1868.

The Fourteenth Amendment was ratified that year, just after the Civil War, and was intended to keep those who had joined the Southern side from holding office in the Union or in any state in the Union. One of its ambiguities is that it doesn’t specifically mention the presidential office as covered by the amendment. This fact among many others is discussed in Professor Lash’s excellent discussion of the ambiguities in the Section’s language, but it would be very odd for the Congress and the ratifying public to have covered every office except the presidency and vice presidency when they intended to prevent Confederates from holding office in the Union. Could it be that Robert E. Lee, who had taken an oath to support the Constitution as a member of the US Army, but violated it by leading the Confederate army, could legally have been elected president after the war?

Another ambiguity is the fact that the language does not specify whether the amendment was intended to be self-executing—that is, enforced without any rules from Congress detailing how enforcement would occur. That would be unusual. Blackman and Tillman spent almost 90 pages of their 140-page paper addressing this very important issue.

The language of the amendment does not limit its application in time, so that it applies to anyone who engages in insurrection or rebellion against the Constitution, the United States, or any state, or gives “aid and comfort” to those who do, at any time after the amendment’s ratification. Indeed, over the years since ratification, including in recent years, individuals have been removed from US government and state government offices because they were found to have violated their prior oaths to support the Constitution. Again, none of these cases has been taken to the Supreme Court.

Accordingly, even though Section 3 was adopted just after the Civil War, it could be applied to Donald Trump today if he is found—after having taken the oath of office as President in 2017—to have engaged in insurrection or rebellion against the Constitution, or the United States, or given aid and comfort to those who did.

At the end of their paper, Baude and Paulsen draw some conclusions, the most significant being that Donald Trump is indeed “constitutionally disqualified from being President” again because of his role in the events of January 6.

Trump, they argue,

pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials, to pressure or persuade state legislatures and/or courts unlawfully to overturn state election results, to assemble and induce others to submit bogus slates of competing state electors, to persuade or pressure Congress to refuse to count electors’ votes submitted by several states, and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of presiding over the counting of electors’ votes. …

When January 6 arrived, Trump delivered an incendiary address at the White House Ellipse to the crowd of supporters he had effectively summoned to the Capitol to oppose what he had been calling the “steal” of the election. … “They rigged it like they’ve never rigged an election before,” he charged. “Make no mistake, this election was stolen from you, from me, and from the country. … This [is] the most corrupt election in the history, maybe of the world.”

Trump called on the crowd to march on the Capitol. “Our country has had enough. We will not take it anymore and that’s what this is all about. … We will stop the steal.” He urged the assembled mass of thousands, some of whom Trump knew to be armed, to “fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”

Baude and Paulson believe Section 3’s text is clear, and Trump’s words and deeds fall under its categories. How is the Supreme Court—where this controversy will undoubtedly be resolved—likely to come down?

All this shows how difficult it will be for the courts to be sure about their answer, and the less sure the answer the more controversy will roil this country. 

Peril lies on both sides of the issue. A decision that deprives many Americans of an opportunity to vote for their preferred candidate could do lasting damage to trust in American democracy. Declaring Trump ineligible for the presidency would completely alter the current presidential race, including the views of many about whether the United States is a legitimate democracy and whether the president ultimately elected is a legitimate holder of the office. Without a fully persuasive reason for taking this step, the adverse consequences for the country could be substantial.

On the other hand, failing to apply the law fully and fairly to Donald Trump could destroy many Americans’ faith in the Constitution, the Supreme Court, and the legal system generally. Many will be persuaded that the Court was intimidated by a mob and failed to do its duty, or was pushed in that direction by the conservatives on the Court, three of whom were appointed by Donald Trump himself. It might even be seen as a roadmap that will enable future presidents—after denying that they lost an election—to take steps like those taken by Mr. Trump to stir major demonstrations in Washington or elsewhere.

With these thoughts in mind, the Court will have to consider whether the actions of Donald Trump fall into the categories of insurrection or rebellion against the Constitution or giving “aid and comfort” to enemies of the Constitution as those terms are used in Section 3.

The Federal law that covers insurrection or rebellion is 18 U.S.C. 2383, which punishes, “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”

Although the language of the statute does not specifically include violence as a part of the crime, it is said that insurrection or rebellion is not generally charged under federal law because it is difficult to separate insurrection from various forms of demonstrative public protest, which can be considered free speech under the First Amendment.

Indeed, former President Trump was not charged with insurrection in connection with his role in the January 6 event at the Capitol. Another possibility in this case is that the Justice Department did not want to implicate Section 3 of the Fourteenth Amendment, which—because it would prevent Trump’s running for future office—could have made it significantly more difficult to get a jury to convict.

Initially, it is necessary to emphasize that the words “insurrection,” “rebellion,” and “aid and comfort” may have had different meanings in the past than those words have today. The definition of “insurrection” or “rebellion” at the time the Fourteenth Amendment was adopted is a key part of the Baude-Paulsen analysis, and the originalist preferences of a majority of today’s Court will almost certainly mean that the Court will apply the meaning of the words when they were written, and not the definitions or connotations they have today.

According to Baude-Paulsen, the term “insurrection” came into use with a 1795 act of Congress known as the Insurrection Act. As specified in the Act, an insurrection occurs “whenever the United States shall be invaded, or be in imminent danger” or upon request of state authorities when an insurrection occurs “in any state against the government thereof.” Section Two of this act, they note, allowed the President to call forth the militia “whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act.”

Baude-Paulsen point to the so-called “Whiskey Rebellion” in 1794 as one source for understanding what was meant by an insurrection or rebellion:

In 1794 … President George Washington personally led militia forces into western Pennsylvania to suppress a large uprising against the government spurred by resistance to the enactment of a federal tax on distilleries. Notably, the Whiskey Rebellion involved armed mobs, organized and employed for the purposes of intimidating and threatening federal officers, keeping them from performing their duties under the law, and preventing others from assuming federal office (or inducing them to renounce their authority)

Baude and Paulsen believe that the Whiskey Rebellion was the “classic illustration” of what “insurrection” and “rebellion” meant in the nineteenth century. Still, the amendment was ratified in the wake of civil war, the scope and scale of which may have been what most people had in mind at the time.

All this shows how difficult it will be for the courts—and especially the Supreme Court, which will make the final decision—to be sure about the answer, and the less sure the answer the more controversy will roil this country. 

It’s a cliché that our country is very divided today, and the question of Trump’s eligibility to run for president will only add to these divisions. Still, every American should try to understand the legal issues that the courts will face in making this extremely controversial decision, and seek out the true meaning of the Constitution, regardless of partisan inclination.