Skip to content
Search

Latest Stories

Top Stories

Could the Constitution itself defeat Trump in 2024?

Could the Constitution itself defeat Trump in 2024?

People take part in a protest demanding the indictment of former President Trump

Getty Images

LaRue writes at Structure Matters. He is former deputy director of the Eisenhower Institute and of the American Society of International Law.

Section 3 of the 14th Amendment is fast becoming a well-known provision of the Constitution. Its rise comes with portents of a constitutional crisis because it prohibits insurrectionists and their abettors from serving in public office. When two originalist professors affiliated with the conservative Federalist Society concluded this summer that the clause disqualifies Donald Trump from being reelected, attention exploded.


However, this is not an issue only for legal scholars and election experts as polling on the topic has actually begun. Politico reported on September 29 that 51% of voters would support using the Constitution to disqualify Trump. The Supreme Court could well have to decide if and how this happens (more on that later).

The language in the Disqualification Clause, as Section 3 is known, is not merely historic. While inspired to prevent former Confederate leaders from assuming positions in state or national government, it does not cite the Civil War and applies to any act of rebellion. It has been rarely used or needed.

Disqualifying a former president running to reclaim the office is truly unprecedented and deserves elevated attention. The best experts can only guess what might happen, because the Constitution is silent on implementation, and the few, mostly irrelevant cases provide no useful interpretations for how Section 3 would work in this circumstance.

Sign up for The Fulcrum newsletter

There are four key sets of questions:

  • What behavior is included under the language, "shall have engaged in insurrection or rebellion . . . or given aid or comfort" to the perpetrators?
  • Holding office is proscribed, but what about running for office? When can disqualification go into effect; before or during the primaries, before or during the general election, or only after a candidate is elected?
  • Perhaps most importantly, who, what institution, and what process decides a presidential candidate's disqualification? What will be the basis for any evidence needed? What standards should be applied?
  • As a policy or political matter, is using the Constitution in this way an acceptable solution to such a fraught case?

Many related questions also emerge. A thorny one will be whether Section 3 is "self-executing," akin to the Article II provision requiring presidents to be at least 35 years old; if so, how is self-execution determined? And some observers even question whether a former president is subject to Section 3's jurisdiction.

These and other uncertainties combine to produce serious constitutional challenges. Additionally, there is the federalism wrinkle of each state using its own laws to administer elections, particularly ballot access.

The first skirmishes are already playing out. Secretaries of State in Michigan and Georgia say they do not have the authority to keep Trump off the ballot and that it's up to the courts. Citizens in Colorado have the right to challenge a candidate's qualifications and are now doing so, and legislators in California have asked the attorney general to produce an opinion on whether Trump should be kept off the state’s ballot.

Various suits in nine states have been filed, with more likely to come. Some cases will not survive the path to the Supreme Court, where an ultimate decision seems necessary to be made. Even if a case reaches the highest court, it may not be heard, as just occurred to an appeal from a candidate running against Trump in New Hampshire. But it only takes one case to earn a review. The sooner the better.

As if this isn’t complicated enough, we can only speculate how the nine justices will respond. Any outcome is possible, from disqualifying the former president to letting him attempt reelection if he wins the Republican nomination. (A decision only after votes are cast in November would be either a disaster or moot.)

The ironies remain profound. It is understandable to say, “let the voters decide” Donald Trump’s fate in 2024, as The Washington Post recently editorialized. Then again, the voters in 2020 already did that, and he tried to overturn the result. Can law-breaking or Constitution-denying behavior between elections be overlooked simply by saying, “never mind, leave it to the voters next time”? As Kermit Roosevelt wrote in the Los Angele Times, “‘Beat him at the ballot box’ is a less convincing prescription if your opponent will not accept defeat.”

The Constitution is our failsafe. Yes, a Senate conviction of the impeached Trump may have been a preferred solution, but that did not happen. Our democracy affords us other options in this case: standing down and standing by for the next election, or honoring the Constitution by using it.

The threat of political violence does loom, but it might occur whether he is on the ballot or removed. If his name is kept off the ballot, supporters will likely make claims about being “denied!” and if he is on the ballot and loses on Election Day, the utterances of “it was rigged!” will certainly be heard.

Hopefully, the risk of organized violence is likely overstated given that Trump’s most active followers now face jail time or have shown little enthusiasm to protest his indictments. Yet violence by lone, rogue individuals remains a serious concern (countering this risk is its own topic).

The implications of this potential crisis are foundational, more so than partisan or political. At the very least, Donald Trump gave aid and comfort to the now-convicted insurrectionists when he did nothing in the hours after the Capitol was breached as a clear violation of the Constitution and his oath to defend it. If he gets a pass just because he’s a candidate again, our democracy is at grave risk.

The rule of law still matters. We are about to be reminded how vital the Constitution is to each and all of us.

Note: Many of the cited links in this column were accessed from the Election Law Blog. Posts fromRichard L. Hasen,Derek T. Muller, andEdward B. Foley were particularly informative.

Read More

Bridging Hearts in a Divided America

In preparation for U.S. President-elect Donald Trump's second inauguration in Washington, D.C., security measures have been significantly heightened around the U.S. Capitol and its surroundings on January 18, 2025.

(Photo by Celal Gunes/Anadolu via Getty Images)

Bridging Hearts in a Divided America

This story is part of the We the Peopleseries, elevating the voices and visibility of the persons most affected by the decisions of elected officials. In this installment, we share the hopes and concerns of people as Donald Trump returns to the White House.

An Arctic blast is gripping the nation’s capital this Inauguration Day, which coincides with Martin Luther King Jr. Day. A rare occurrence since this federal holiday was instituted in 1983. Temperatures are in the single digits, and Donald J. Trump is taking the oath of office inside the Capitol Rotunda instead of being on the steps of the Capitol, making him less visible to his fans who traveled to Washington D.C. for this momentous occasion. What an emblematic scenario for such a unique political moment in history.

Keep ReadingShow less
King's Birmingham Jail Letter in Our Digital Times

Civil Rights Ldr. Rev. Martin Luther King Jr. speaking into mike after being released fr. prison for leading boycott.

(Photo by Donald Uhrbrock/Getty Images)

King's Birmingham Jail Letter in Our Digital Times

Sixty-two years after Rev. Dr. Martin Luther King’s pen touches paper in a Birmingham jail cell, I contemplate the walls that still divide us. Walls constructed in concrete to enclose Alabama jails, but in Silicon Valley, designed code, algorithms, and newsfeeds. King's legacy and prophetic words from that jail cell pierce our digital age with renewed urgency.

The words of that infamous letter burned with holy discontent – not just anger at injustice, but a more profound spiritual yearning for a beloved community. Witnessing our social fabric fray in digital spaces, I, too, feel that same holy discontent in my spirit. King wrote to white clergymen who called his methods "unwise and untimely." When I scroll through my social media feeds, I see modern versions of King's "white moderate" – those who prefer the absence of tension to the presence of truth. These are the people who click "like" on posts about racial harmony while scrolling past videos of police brutality. They share MLK quotes about dreams while sleeping through our contemporary nightmares.

Keep ReadingShow less
The arc of the moral universe doesn’t bend itself

"Stone of Hope" statue, Martin Luther King Jr. Memorial, Sunday, January 19, 2014.

(Photo by Nikki Kahn/The Washington Post via Getty Images)

The arc of the moral universe doesn’t bend itself

“The arc of the moral universe is long, but it bends toward justice.” The Rev. Martin Luther King Jr.’s familiar words, inscribed on his monument in Washington, D.C., now raise the question: Is that true?

A moral universe must, by its very definition, span both space and time. Yet where is the justice for the thousands upon thousands of innocent lives lost over the past year — whether from violence between Ukraine and Russia, or toward Israelis or Palestinians, or in West Darfur? Where is the justice for the hundreds of thousands of “disappeared” in Mexico, Syria, Sri Lanka, and other parts of the world? Where is the justice for the billions of people today increasingly bearing the brunt of climate change, suffering from the longstanding polluting practices of other communities or other countries? Is the “arc” bending the wrong way?

Keep ReadingShow less
A Republic, if we can keep it

American Religious and Civil Rights leader Dr Martin Luther King Jr (1929 - 1968) addresses the crowd on the steps of the Lincoln Memorial during the March on Washington, Washington DC, August 28, 1963.

(Photo by PhotoQuest/Getty Images)

A Republic, if we can keep it

Part XXXIV: An Open Letter to President Trump from the American People

Dear President Trump,

Keep ReadingShow less