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.
At the time of this article, the Colorado Supreme Court has already ruled that Donald Trump, a leading candidate for the 2024 presidential election, is unable to run for office and has been removed from Colorado’s ballot. The Colorado court system has based this decision off of Section III of the 14th Amendment. The Secretary of State of Maine, on December 28, 2023, declared independent of the Maine court system that Donald Trump is unable to hold the United States presidential office according to the 14th Amendment. There is also litigation pending in Oregon.
Locus standi, or standing, refers to the ability of a party to bring suit in court. At a state level, it refers to whether a plaintiff has sustained or will reasonably soon sustain an injury. This injury must be redressable by a court. In Colorado, six Colorado voters found standing and were successful, up to the Colorado Supreme Court, in disqualifying Donald Trump from being on the ballot.
A strong legal analysis must be void of any political preferences. There are a few different ways people interpret the U.S. Constitution. The three classic ways are through textualism, originalism, and those that believe it is a living document. Our goal is not to give you an answer to whether Donald Trump is fit for office based on the 14th Amendment. Rather, hopefully the information here will arm you to better make that decision for yourself.
A textualist will focus on the plain meaning of the text. A textualist will typically also take into account the context in which the decision was made 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.
A textualist may view the phrase “… engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” as a condemnation against Trump for president of the United States. An insurrection is defined as, “an act or instance of revolting against civil authority or an established government.” There is little doubt that some citizens are guilty of insurrection for their actions on January 6th, 2021. But, whether Trump engaged in insurrection is a different matter. Because he is not being charged criminally in this context, the burden is not that the elements must be proven beyond a reasonable doubt. Thus, there is a more attainable burden for a plaintiff to achieve to keep Trump off of a ballot.
The second part of the phrase in question, “or given aid or comfort to the enemies thereof,” may actually be an even easier case for a plaintiff from a purely textualist perspective. There is no question that Trump, on January 6th, 2021, gave some level of aid or comfort to the insurrectionists. But, what is comfort? This is an ambiguity that is not yet clear. Does Trump stating, “go home, we love you, you are very special” qualify as comfort? Does Donald Trump’s message just before the insurrection, when he said, “we fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”, classify as aiding or comforting insurrectionists?
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
Getting away from the incidents of January 6th, 2021, does Donald Trump’s requests to the Georgia election official, stating “I need 11,000 votes”, classify as insurrection? While it appears on its face antidemocratic, the answer is probably not under Section III of the 14th Amendment regarding this incident. Putting pressure on an election official to find votes likely has some legal significance. But does it rise to the level of rebellion or insurrection?
On the other end of this fight, Donald Trump calls the disqualification of him from the election antidemocratic. And while it is, on its face, a step away from what a large part of the United States population clearly wants, one must consider what is truly democratic. And more importantly in this context, what matters is the meaning in the words of the Constitution.
Trump’s lawyers argue that only Congress can enforce Section Three. There is no basis for this argument. This is an issue of standing. State courts can hear federal issues; this includes the U.S. Constitution. Furthermore, citizens of Colorado can sue for a remedy based on a provision in the U.S. Constitution. And, they may do so in a state court. Although, it is a federal issue and thus appealable to the U.S. Supreme Court after a ruling from the Colorado Supreme Court. There is nothing in Section III requiring that Congress be the one to enforce Section III or any other part of the Amendment.
Trump’s lawyers argue that Section Three does not apply to presidents. However, Section III clearly states, in pertinent part “no person shall … hold any office, civil or military, under the United States.” The Section also specifically refers to the office of president. Thus, there is no basis for this argument by Trump’s lawyers.
Trump’s lawyers argue that Trump did not commit insurrection. This is the only defense that may have merit. As we mentioned above, this is a decision you may make for yourself based on the information made available to you. You now have a better understanding of what an insurrection is, what standard a plaintiff must reach to prevail on his or her case, and who is susceptible to the Constitution and Paragraph III.