The relationship between the 14th Amendment and Trump became a major legal question during the 2024 election cycle. The 14th Amendment covers equal protection and other enumerated rights. Section Three covers disqualification from holding office. Section III of the 14th Amendment of the United States Constitution reads as follows:
No person shall be a Senator or Representative in Congress, or elector of President and 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 as a member of any State legislature, or as an 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 by a vote of two-thirds of each House, remove such disability.
You can read the full text of the amendment through the Cornell Legal Information Institute.
Background
At the time of this article, the Colorado Supreme Court had already ruled that Donald Trump could be disqualified by a court. In Colorado, six voters found standing and were successful, up to the Colorado Supreme Court, in disqualifying Donald Trump from appearing on the ballot.
Legal Analysis
A strong legal analysis must be free of any political preferences. People interpret the U.S. Constitution in a few different ways. The three classic approaches are textualism, originalism, and the view that the Constitution is a living document. Our goal is not to tell you whether Donald Trump is fit for office based on the 14th Amendment. Rather, we hope the information here helps you make that decision for yourself.
A textualist focuses on the plain meaning of the text. A textualist typically also considers the context in which the drafters chose to word a clause in a particular way. Originalism, on the other hand, sharply opposes the idea that the Constitution is a living document. An originalist concerns himself with the context of the text to a far greater degree. Originalists may consider public debates on an issue from that time, relevant background events, and dictionary definitions from the time period.
Section III
A textualist may read the phrase “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” as a possible basis for disqualifying Trump. An insurrection is defined as “an act or instance of revolting against civil authority or an established government.” Many individuals have been convicted for their actions on January 6th, 2021. Whether Trump himself engaged in insurrection is a separate matter. Because this is not a criminal charge in this context, the burden is not proof beyond a reasonable doubt. A plaintiff therefore faces a more attainable burden to keep Trump off a ballot.
The second part of the phrase, “or given aid or comfort to the enemies thereof,” may present an even closer question from a purely textualist perspective. Courts would have to decide what “comfort” means in this context, which remains an unsettled ambiguity. Does Trump telling the crowd to “go home, we love you, you are very special” qualify as comfort? Does his message just before the events, when he said “we fight like hell,” qualify as aiding or comforting? These are open questions rather than settled conclusions.
Supremacy Clause and the Supreme Court of the United States
Article VI, Paragraph Two of the U.S. Constitution is the Supremacy Clause. The rule we can extract from this paragraph is that the U.S. Constitution, and federal laws generally, take precedence over state laws and state constitutions.
Other Instances of Insurrection
Setting aside the events of January 6th, 2021, does Donald Trump’s request to a Georgia election official to “find” votes qualify as insurrection? While it may appear antidemocratic on its face, the answer is probably no under Section III of the 14th Amendment for that incident. Pressuring an election official likely carries some legal significance. But it is doubtful that it rises to the level of rebellion or insurrection.
Trump’s Defense
On the other side of this fight, Donald Trump calls his disqualification from the election antidemocratic. While it does move away from what a large part of the population may want, one must consider what is truly democratic. More importantly in this context, what matters is the meaning of the words in the Constitution.
Trump’s lawyers argue that only Congress can enforce Section Three. This is fundamentally an issue of standing. State courts can hear federal issues, including questions under the U.S. Constitution. Citizens of Colorado can therefore sue for a remedy based on a provision in the U.S. Constitution, and they may do so in a state court. Because it is a federal issue, the matter is appealable to the U.S. Supreme Court after a ruling from the Colorado Supreme Court. Nothing in Section III requires that Congress be the one to enforce it or any other part of the Amendment.
Trump’s lawyers also argue that Section Three does not apply to presidents. However, Section III states, in pertinent part, that “no person shall … hold any office, civil or military, under the United States.” The Section also refers to the office of president. For that reason, courts would have to weigh this argument carefully.
Finally, Trump’s lawyers argue that Trump did not commit insurrection. This is the defense most likely to carry weight. As we mentioned above, this is a decision you may make for yourself based on the information available to you. You now have a better understanding of what an insurrection is, what standard a plaintiff must reach to prevail, and who is subject to Section III of the 14th Amendment.
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