The idea of using language in the 14th Amendment to remove former President Donald Trump from 2024 ballots for president—either in the primaries, the general election, or both—has gone from fringe idea to mainstream discussion point with shocking speed. And while there are certainly pitfalls and the potential for unanticipated blowback, both activist groups and state officials should sign on. As the architect of the gravest threat to American democracy in 160 years, Donald Trump should never again be allowed to stand for office, and there is clear language in the U.S. Constitution to prevent him from doing so.
The text of the 14th Amendment is simple enough for even Trump to understand. Section 3 bars anyone from federal or state office who has "engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof." Congress can lift that prohibition, but only with a two-thirds majority. Recent history does not give us reason to think that Congress will be able to muster that kind of supermajority for much anything, let alone to specifically rehabilitate Donald Trump.
The facts of the case are not even in dispute by anyone who doesn't spend their evenings watching InfoWars. On Jan. 6, 2021, then-President Trump's supporters stormed the U.S. Capitol and hunted individual members of Congress, all part of an effort to disrupt the counting of electoral votes and squash the peaceful transfer of power to Joe Biden. While Trump may not have told them to do exactly what they did, he was the leader of the post-election conspiracy plot, riled up the mob beforehand with lies and delusions and has repeatedly defended the Capitol insurrectionists after the fact. There is no reasonable argument that his conduct somehow doesn't meet the standard of the 14th Amendment's language. Either it does, or nothing does.
In an explosive University of Pennsylvania Law Review article, conservative legal scholars William Baude and Michael Stokes Paulsen argued that not only does Trump's behavior merit his exclusion from the ballot, but that the 14th Amendment's procedures are what they call "self-executing." The terms of the amendment can be "carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three's commands." In other words, any official with the right to judge Trump's eligibility for office can invoke the amendment and refuse to allow him to run.
But of course, even if state officials choose to follow Baude and Stokes Paulsen's advice and kick Trump off the ballot, that won't be the last word. In Arizona, for example, the state supreme court has already ruled that only Congress can remove Trump from the ballot. And though it is likely that other state high courts will rule differently, the matter will ultimately end up before the U.S. Supreme Court, 33 percent of which was appointed by Trump himself. Trump's justices may have scoffed at his arguments to overturn the 2020 election, but whether they would sign off on this application of the 14th amendment is another matter entirely.
There are several reasons, though, for pursuing this claim even if it is ultimately rendered moot by Brett Kavanaugh's pen. First, beginning the process of removing Trump from the ballot in swing states will send an unmistakable message to Republican primary voters: If you insist on choosing this guy, out of all the people available to you, there is a real risk that the election will be over before it starts. Remember, Democrats control election machinery in enough swing states to put Biden over the top, including the critical battleground states of Wisconsin, Pennsylvania, and Michigan. Republican state legislatures won't be riding to the rescue either, because the Supreme Court recently rejected the Independent State Legislature theory. Even hardcore Trump zealots might take a second look at their choices if they know that choosing him will result in, at best, a disruptive legal train wreck.
Second, the 14th Amendment has been ignored for far too long, in far too many contexts. It bars, for example, questioning the public debt of the United States, which Republicans do every time they use the unconstitutional debt limit statute to hold the country hostage. It is violated every time Republicans, who fear the judgment of their own citizens more than anything else in the world, concoct new voter suppression rules designed to drive down minority turnout on election day. And the Equal Protection Clause is violated every single day by out-of-control cops who fund their own escapades by seizing the property of innocent civilians, often without even the fig leaf of probable cause.
The 14th Amendment, in short, deserves new appreciation and respect. It rectified some of the worst oversights of the Constitution and the first 10 amendments. Had it not been almost immediately abandoned, it could have prevented a 100 years of tyranny in the American South.
And if we owe unquestioned obedience, as this rogue Supreme Court has repeatedly ruled, to the obtuse language of the wretchedly composed 2nd Amendment, surely, we can at least try to apply the 14th as it is written? The alternative is to allow an unrepentant insurrectionist who refuses to abide by any of the laws or norms of American democracy to take another crack at destroying the republic. That may happen anyway, but if it does, we should at least be able to say we tried to stop it.
David Faris is an Associate Professor of Political Science at Roosevelt University and the author of It's Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.
The views expressed in this article are the writer's own.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
