The fraught debate over whether the 14th Amendment disqualifies Trump, explained

Should Donald Trump even be allowed on the ballot in 2024?

Some of the country’s most prominent legal experts, and a small number of activists and politicians, argue he shouldn’t — and some have filed lawsuits trying to strike Trump’s name from ballots.

Yet most in the Democratic Party are keeping a wary distance from the effort. And other experts argue that such actions, intended to save American democracy, might in fact imperil it even further.

The argument for disqualifying Trump hinges on Section 3 of the 14th Amendment to the US Constitution, and its proponents argue that its plain language disqualifies Trump, who they say engaged in “insurrection or rebellion” against the Constitution, from holding office again.

Some go so far as to argue that secretaries of state should simply declare Trump ineligible and take him off their ballots — but so far, none have been willing to do so. Instead, then, the hunt is on to find a judge who will do it.

To be clear: It seems extremely unlikely that Trump actually will be disqualified, since the Supreme Court will get the final say over any challenge, and they’ll likely nix this whole endeavor.

Yet the very existence of the effort raises difficult questions about how a democracy should deal with the threat of a candidate like Trump, who retains a good deal of popular support, but who attempted to steal the 2020 election and talks constantly about having his political opponents imprisoned.

A Trump win in 2024 would be deeply dangerous for American democracy. Yet taking away voters’ option to choose him would pose its own perils. It would inevitably be seen as blatant election theft by much of the country — which would trigger responses, both from Republicans in office and Trump supporters on the ground, that could degrade democracy even more severely.

How the effort to use the 14th Amendment to disqualify Trump gained steam

The 14th Amendment was ratified in 1868, just after the Civil War, and was meant to deal with its fallout. Some of its provisions were later used as the foundation of modern civil rights law. Section 3 is about a different topic: whether former insurrectionists can hold public office. Its relevant text is as follows:

“No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … 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.”

Days after the January 6, 2021, attack on the US Capitol, some law professors began suggesting that this meant that Trump, and other Republicans whom they viewed as complicit in the insurrection, should be barred from office.

Liberal advocacy groups took up the charge in 2022, suing unsuccessfully to try to get Rep. Marjorie Taylor Greene (R-GA) and three Arizona Republican candidates taken off the ballot. Their arguments did prevail in one case, though: A New Mexico judge removed County Commissioner Couy Griffin from his post. (Unlike Greene, Griffin had unlawfully entered the Capitol on January 6 and had been convicted of trespassing.) That marked the first successful use of Section 3 since 1919.

This was all warmup to taking on Trump. This August, law professors William Baude and Michael Stokes Paulsen released a 126-page forthcoming law review article on Section 3. They concluded, after a year of studying the topic, that Section 3 sets out a “sweeping” disqualification standard that excludes Trump “and potentially many others” from holding office.

The article got enormous attention, in part because Baude and Paulsen are conservatives, and because it was quickly endorsed by liberal law professor Laurence Tribe and conservative former judge J. Michael Luttig, two of the country’s biggest legal names. Steven Calabresi, a founder and co-chair of the board of the Federalist Society, also initially said he was convinced — though he changed his mind a month later.

Baude and Paulsen also raised eyebrows for arguing that, per their legal analysis, state election officials should act to take Trump off the ballot now — rather than waiting for Congress or judges to do it. Section 3 is “self-executing,” they argue, so state officials need to obey it.

Democrats have been hesitant to push for Trump’s disqualification — but lawsuits are now moving forward in the courts

Democratic secretaries of state have not taken the initiative, though, saying this is a matter for the courts. And with a few exceptions — Rep. Jamie Raskin (D-MD) recently opined that Trump is disqualified from running — most Democratic politicians have kept a wary distance from this effort.

As much as the party fears and loathes Trump, there is an evident concern that striking him from the ballot would be going too far. Either due to a commitment to democracy, a fear of the explosive backlash that would follow such a move, or a desire to make the effort look less partisan, Democrats like Michigan Secretary of State Jocelyn Benson are saying that it’s out of their hands, try the courts instead.

So now the hunt is on to find a judge who will declare Trump ineligible to be president. Citizens for Responsibility and Ethics in Washington (CREW), a longtime progressive advocacy group, has filed suit in Colorado, where a judge has said she hopes to rule on Trump’s eligibility by Thanksgiving. Free Speech for People, another progressive advocacy group, has filed suit in Minnesota.

Even before this came lawsuits from Texas tax attorney John Anthony Castro, who is, at least officially, a candidate for the GOP presidential nomination in 2024. Shortly after he registered to run, he filed a lawsuit citing Section 3 to try and get Trump taken off the ballot. He’s since filed similar suits in more than a dozen other states, and constantly hypes up his effort on the website formerly known as Twitter (“They finally realized I’m not fu**ing around. Too late, beta boys,” he wrote recently). The Supreme Court recently declined to take up one of Castro’s appeals, but his other suits are still alive for now.

Still, the Supreme Court is the ultimate destination for all of this wrangling, and it has a six-justice conservative majority, three of whom were appointed by Trump. Even before getting into the legal specifics, that’s enough reason to be deeply skeptical that the Court would ban Trump from running again.

The case for disqualifying Trump

The legal debates here can be abstruse. They feature attempts to divine the intent of politicians during the 1860s, discussions on how seriously to take an 1869 circuit court opinion by Chief Justice Salmon Chase, and slippery slope hypotheticals about how disqualification could later be abused in different situations.

So let’s zoom out and ask the real question at the heart of all this: Would disqualifying Trump from the ballot in this way be a good idea, or would it be its own sort of affront to democracy?

Many democracies have struggled with the question of how to deal with a threat to democracy rising through the electoral system, and there are no easy answers. I spoke with Harvard political scientists Steven Levitsky and Daniel Ziblatt, who just co-authored a book, Tyranny of the Minority, on the US’s democratic crisis, about the options.

Ziblatt noted Hans Kelsen, an Austrian legal theorist in the 1930s, who he said “made the case that if you really believe in democracy, you have to be willing to go down on a sinking ship and come back another day.” In Kelsen’s view, the only defensible solution to authoritarians rising in the democratic system is to beat them at the ballot box.

With the rise of the Nazis, that thinking obviously didn’t age well, said Ziblatt. “I think that’s naive,” he said. “This idea that we need to just stand by and let our democracy come under assault and hope everything will work out — it turned out not to work out.”

So the post-World War II German constitution set up a procedure and a legal framework by which certain politicians or parties deemed dangerous to the constitution could be restricted from running for office. “It’s a very complex and highly regulated procedure,” said Ziblatt — involving federal and state offices, a bureaucracy, court approval, and necessary legal steps — because disqualification is such a “potentially dangerous and powerful device.”

Other countries have adopted similar approaches, which are known as “militant democracy” or “defensive democracy.” The idea is to protect democracy by excluding the threats to it from the political scene.

The thinking is: Trump tried to destroy American democracy in 2020. If he’s allowed to try again, there’s good reason to suspect he’ll do more damage. So why not stop him now? Supporters of disqualifying Trump, like Luttig, argue that he disqualified himself. The Constitution says insurrectionists can’t hold office, and we have a duty to uphold the Constitution, they claim.

The case against disqualifying Trump

But the problem with the 14th Amendment option, both Levitsky and Ziblatt told me, is that the US did not establish a consistent procedure or institutional authority for excluding candidates after the Civil War. “We have no agreed-upon institutional mechanism in place, no electoral authority, no judicial body with precedent and practice that all the major political forces agree should be empowered to make this decision,” Levitsky said.

Long-standing institutions and procedures provide credibility; ideally, they help assure the nation that these decisions aren’t ad hoc, arbitrary, and politicized — as they are in many countries. In Latin America, Levitsky says, disqualification is often “badly abused” to exclude candidates the powers that be simply don’t want to win.

In Trump’s case, what would look to some like dutifully standing up for the Constitution would look to many others like an unprecedented intervention by elites into the electoral process, based on a disputed interpretation of a 155-year-old, rarely used provision — with the clear underlying motivation of preventing voters from making a particular person the president.

Both professors blanched at the idea of partisan secretaries of state taking Trump off the ballot on their own. Levitsky called this “deeply problematic,” and Ziblatt said it would be “very fraught and dangerous” and likely to lead to “escalation.”

Pro-Trump secretaries of state would surely respond with their own disqualifications of Democratic candidates in reprisal. Indeed, Trump’s supporters already caused chaos at the Capitol when they wrongly believed the election was being stolen from him, and they’re already disenchanted with American institutions. What if Trump truly was prevented from even running by questionable means? Things can always get worse and more dangerous. Legal commentator Mark Herrmann compared secretaries of state disqualifying Trump to opening Pandora’s Box.

Given the lack of precedent, the much “healthier path,” Levitsky said, would have been if the Republican Party had managed to self-police by convicting Trump during his second impeachment trial and blocked him from running again. They didn’t — and that’s why we’re in this mess, debating whether democracy can even survive another Trump presidency.