The Constitution prescribes a penalty for criminals who wage war on democracy. Maybe it’s time we used it.
In the aftermath of the Civil War, the Reconstruction Congress ratified the Fourteenth Amendment. Among other things, it disqualifies people who held office, and violated their oath of office by engaging in “insurrection or rebellion” against the United States, from ever holding a position of public trust again.
The original draft of this amendment applied only to Confederates and would have expired in 1870. But that’s not the version that passed. Clearly, the framers of the Fourteenth Amendment meant to guard against future insurrections as well.
In the 150 years since its passage, the Insurrection Clause has almost never been used. But that’s not, as the New York Times blathered, because it’s an “obscure” provision. It’s just that America has been fortunate to have mostly peaceful transfers of power. The losers of our elections haven’t waged war on the winners. Even Nixon didn’t go that far.
But times change. Donald Trump shattered so many norms, including this one. Perhaps we should dust off the constitutional tools we have to deal with traitorous criminals like him.
The big fish
The Fourteenth Amendment has already barred one January 6 insurrectionist from office: Couy Griffin, a county commissioner from New Mexico.
But there’s no reason to use it only against little fish like Griffin. If Trump’s henchmen deserve this penalty, why not the man himself?
Two conservative law professors from the Federalist Society, William Baude and Michael Stokes Paulsen, were among the first to make this argument. And in Colorado, in a case filed by Republican plaintiffs, the state Supreme Court accepted their logic. In a dynamite decision, they disqualified Trump from the ballot. “We do not reach these conclusions lightly,” wrote the court’s majority. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
A few days later, Maine followed suit:
“I do not reach this conclusion lightly,” [Secretary of State Shenna] Bellows wrote in her 34-page decision. “I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section 3 of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.”
Colorado is a blue state that wasn’t in serious contention for the 2024 general election. But Maine is one of two states that splits its electoral votes, so if this decision holds up, it could cost Trump at least one electoral vote.
In several other states, including Florida, Michigan, and Minnesota, courts rejected similar lawsuits. They were likely reluctant to touch the issue and its red-hot political implications. But the Colorado and Maine decisions have forced the nation to treat this as a live option. Now that they’ve cleared the way, it’s possible that more states will start the process of disqualifying him from the ballot.
Obviously, this is going to end up at the US Supreme Court. The Colorado court has already stayed its own decision until the Supreme Court has either weighed in or declined to hear the case.
Of course he did it
There’s no doubt that Trump incited the January 6 insurrection. You know it. I know it. And his supporters know it too, even if they pretend not to. The question is what we can—or should—do about it.
Some people, even anti-Trump Republicans like Chris Christie, say it would be unfair to ban Trump from running. They argue that the only legitimate way to defeat him is at the ballot box. Except, as critics pointed out, he was defeated at the ballot box—in 2020. He responded by trying to overturn the election and steal the presidency. He set a murderous mob on Congress which they only narrowly escaped. He came closer to toppling American democracy than any foreign enemy ever has. If he suffers no punishment, what’s going to deter him or someone else from trying again?
Trump is a dictator wannabe. Like the traitors of the Confederacy, he doesn’t believe in following the law unless it suits him. He demanded the Constitution be terminated to allow him to reassume office. One could argue that this is exactly the scenario for which the Fourteenth Amendment was passed. It was designed to keep someone who’s flaunted their contempt for the laws of the United States out of office.
This case is a massive dilemma for the conservative justices on the Supreme Court. I have no doubt that they want to help Trump if they can. At the same time, there’s a clear limit to how far they’re willing to stick their necks out for him. In 2020, to cite one example, the court rejected a ludicrous right-wing lawsuit in which Texas claimed a right to dictate to other states how to carry out their own elections.
But to be absolutely fair, this case is also a dilemma for liberals and progressives.
I’m not saying that kicking Trump off the ballot is wrong on the merits. My concern is a different one: if this holds up, red-state officials are sure to retaliate. They’ll start inventing bogus excuses to accuse liberals of “insurrection” and kick them off the ballot. (One guess: they’ll define any protest against the government as insurrection.) They’ll engage in even more overt electoral suppression against any progressive who looks like they might win.
If I had to bet, I’d guess the Supreme Court will rule that, to disqualify someone from the ballot, that person must first be found guilty of insurrection in a criminal trial with due process. That wouldn’t be the worst outcome.
And in Trump’s case, this might still happen.