In recent weeks, several distinguished constitutional law scholars, including Harvard University Law Professor Laurence H. Tribe and retired Federal Appellate Judge J. Michael Luttig (who is a Republican and one of the nation’s leading conservative legal minds) have propounded the argument that former President Donald J. Trump is ineligible to hold office by virtue of Section 3 of the 14th Amendment to the United States Constitution. Their argument was set forth in a recent article published in The Atlantic magazine and has been discussed in interviews on various news channels. Two additional conservative legal scholars affiliated with the Federalist Society — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas recently outlined the same argument in The New York Timesrecently outlined the same argument in The New York Times.
In a research project in graduate school, I spent a semester or two studying Jefferson Davis, who left the United States Senate to lead the Confederate States of America in a war against the Union. My focus was on the treason charges that were brought against Davis after the Confederate surrender and the involvement of an Ohioan, Chief Justice of The United States Salmon P. Chase, in the final resolution of those treason charges.
This research, which at the time seemed like a totally obscure, irrelevant and an unlikely topic for an African American studying history, separates me from probably 99.9 % of the population who have no idea of what these constitutional scholars are talking about. The following is an attempt to give a Cliff Notes version of the legal argument that, if property applied, would torpedo Donald J. Trump’s ability to hold any political office.
In the 1850s there was a slave by the name of Dred Scott. Scott was taken by his master to free territory where he lived for several years. When he returned to his home state of Missouri, a slave state, he sued to obtain his freedom. After years of litigation, Scott’s case eventually made its way to the United States Supreme Court. In 1857, Chief Justice Roger B. Taney (a slave owner) rejected Scott’s argument and gratuitously added that no black person, whether slave or free, could ever be a citizen of the United States. Ohioan John McClean who was an associate justice at the time, dissented.
Generally cited by legal scholars as one of the worst decisions ever rendered by the Supreme Court, the Dred Scott decision was still the law of the land after the end of the Civil War and the passage of the 13th Amendment that freed slaves. African Americans, whether free at the time of emancipation or formerly enslaved, were free but they were not citizens. Therefore, it was necessary to adopt a constitutional amendment to grant citizenship to every Black or mixed-race person in America. The amendment was drafted by Ohio Congressman John Bingham.
Section One of the amendment grants and defines citizenship, which was not provided for in the original Constitution.
Section Two was necessary to abolish the three-fifths clause of the Constitution, which provided that slaves were not counted as whole persons for the purpose of apportionment of the members of the House. States got members of the House based on three fifths of the number of slaves plus the white population.
Section Three, which has been largely overlooked for the last 160 years or so, was included to deal with another problem facing northern Republicans. They did not want former Confederate office holders who had taken up arms against the Union to come back to power. As a result, the following paragraph was adopted as part of the 14thAmendment.
No person shall be a Senator or Representative in Congress, or elector of President or Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress or as an officer of the United States, or a member of any State legislature , executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds or each House, remove the disability.
When you run for office, the secretary of state of each state checks off your qualifications and certifies an individual as a candidate. In the case of a person running for president, individual secretaries of state must be satisfied that a candidate meets the constitutional requirements for the presidency. You must be a natural born citizen, which means not naturalized but born in the USA. The person must also be 35 years old and a resident of the United States for 14 years.
But Section 3 of the 14th Amendment imposes another requirement, a clause that fortunately has not been a factor in elections since the post-Civil War era. Trump clearly has taken an oath to support the Constitution. He did that when he was sworn in on January 20, 2017.
Going to the next step, has he engaged in insurrection or rebellion or given aid or comfort to the enemies of the United States? Has Donald Trump, in the opinion of secretaries of state, who will make the initial decision, engaged in insurrection or rebellion — specifically on January 6, 2021? Were his attempts to overturn the election of 2020 insurrection — which is defined as an act to overthrow the government — enough to disqualify him? If the secretary of state is a Republican, the answer would clearly be no. If a Democrat, it could be yes.
Judge Luttig argues that the amendment speaks for itself and that it is not necessary to be found guilty in a court of law before this section can be applied. He did what he did and it’s all recorded. He even admitted to all of it on social media. Trump supporters and lawyers would argue that without a conviction, you can’t prove he engaged in rebellion or insurrection. Trump argues that he was exercising his right to free speech and famously asserts he did nothing wrong.
Did Trump give aid and comfort to the enemies of the United States when he encouraged the January 6 rioters and promised to pardon all those conviction as a result of their actions on January 6?
Was it insurrection to direct Vice President Pence to refuse to certify the election? Was it insurrection to attempt to qualify alternate slates of electors pledged to him rather than to Joe Biden, who had garnered more votes than Trump in their respective states — which was the situation in Michigan?
Did he engage in insurrection when he asked the Georgia secretary of state to find him enough votes the win the state — even after he had been told by his own attorney general and others that he had lost?
For this issue to be decided, it must ultimately come before United States Supreme Court. Trump’s attempt to get his name on the ballot of an individual state must be challenged by a voter in each state who would argue that Trump did not meet the constitutional requirements to serve as president — just like the people who argued that Barack Obama was born in Kenya and therefore ineligible. The case would have to make its way through the federal court system in order to obtain an ultimate decision.
And herein lies the importance of having a quick resolution to the indictment brought by Special Counsel Jack and Atlanta Prosecutor Fani Wilson. A conviction in either one of those cases before the November 2024 election would disqualify Trump pursuant to Section 3 of the 14th Amendment — which means he is ineligible to run or serve.
It seems to me that Professor Tribe and Judge Luttig make a sound argument. Scholars far more learned than I will debate this issue in the coming months and theatrically it will be decided by the Supreme Court. But with this Cliff Note version of the issue, you will be able to at least understand the discussion and come to your own conclusion.
You are all intelligent readers. Read the provision and decide for yourself.
C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she is a former member of the Board of the Ohio History Connection, and past president of the Cleveland Civil War Round Table, and is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.
4 Responses to “POINT OF ORDER: Can the 14th Amendment Disqualify Candidate Trump? by C. Ellen Connally”
Maurer, Mel
I have heard the scholars you mention talk on this and I appreciate your cliff notes version – very clear. It might be said that someone like Trump is why that provision is in the amendment. Jefferson Davis did not try to take over the US. He wanted to separate from it – bad enough but what Trump tried to do is even worse.
Tammy L. Currier
Excellent piece – thank you! Crossing my fingers for a timely conviction.
Vincent Holland
OF THE MANY EXCELLENT ARTICLES YOU HAVE WRITTEN THIS WAS MY FAVORITE. I HAVE READ DR LAWRENCE TRIBE’S TOMES BEFORE, AND I have been impressed. Your summary of this issue that is extremely in helping me understant both the complexity and the hidden influences and motivations behind these issues. Great job in walking me through both the history and the laws pertaining to these isdued
Steven McQuillin
It makes sense that Trump would be disqualified, but I really doubt this would happen. The text is somewhat ambiguous, plus Section 2 was never respected, as African American citizens were long denied the right to vote in Southern states and their representation in Congress was never diminished. Plus, when John McCain, who was not born in the U.S., ran for President in 2008, it was said that there wasn’t any jurisdiction unless and until he was actually elected.