Following the Civil War, the Constitution underwent changes to disqualify political leaders who had betrayed their oath by “engaging in insurrection or rebellion” against the United States. While some historians believed this provision, Section 3 of the 14th Amendment, became obsolete after amnesty acts for ex-Confederates in 1872 and 1898, some legal scholars, including William Baude from the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas, argue that Section 3 remains in force.
Baude and Paulsen, both respected conservatives, recently published a comprehensive law review emphasizing the constitutional response to the nation’s greatest insurrection. They contend that this could have significant implications for the 2024 election, potentially disqualifying former President Donald Trump from holding office.
Their argument hinges on interpreting the word “insurrection” broadly to encompass any concerted use of force or pressure aimed at obstructing or overthrowing the government’s authority. They assert that enforcement of the disqualification clause doesn’t solely depend on Congress or the Justice Department but rests with state, county, or federal officials who determine a candidate’s eligibility to run for office and appear on the ballot.
According to Baude and Paulsen, taking Section 3 seriously implies that those involved in the attempted overturning of the 2020 presidential election, including former President Trump, could be disqualified from future state and federal office holding. This argument could also extend to senators who supported the January 6 insurrectionists.
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Given the large number of state attorneys and election officials, it is likely that there will be challenges to Trump’s eligibility in the coming year. If such challenges arise, they could quickly escalate to federal courts and potentially reach the Supreme Court.
While the Supreme Court may prefer to avoid ruling on such a contentious issue, they may be compelled to do so if a federal judge or state supreme court decides that Trump is ineligible to hold office and cannot appear on the ballot.
Legal experts, including Adam Unikowsky, a former Supreme Court clerk, acknowledge the possibility of the Supreme Court disqualifying Trump, though they believe it’s not a certainty. Rep. Adam B. Schiff also supports the argument that the 14th Amendment, Section 3, disqualifies individuals who engage in acts of insurrection or rebellion.
The outcome ultimately hinges on the Supreme Court’s decision, and whether it will uphold the disqualification based on Section 3 of the 14th Amendment. Some, like Stanford Law professor Michael McConnell, disagree with this interpretation. McConnell argues that Congress could have disqualified Trump through impeachment and that entrusting state officials with the power to disqualify candidates is problematic and potentially undemocratic.
Baude and Paulsen, however, maintain that the Constitution is clear in its intent, asserting that Trump’s actions on January 6 constituted an insurrection. They argue that he deliberately attempted to overturn the 2020 election results and incited violence, making him ineligible for the presidency or any other state or federal office covered by the Constitution.
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In conclusion, the interpretation of the 14th Amendment, Section 3, could have significant implications for Trump’s eligibility to run for office in the 2024 election. Legal experts and scholars are divided on the matter, and the ultimate decision may rest with the Supreme Court if challenges to Trump’s eligibility arise.