Disqualifying Trump

[NOTE TO READERS: Yesterday the US Supreme Court agreed to review the recent decision of the Colorado Supreme Court to disqualify Donald J. Trump from the Republican primary ballot under Section 3 of the Fourteenth Amendment (the “Disqualifying Clause”). My post below, which I had been working on for two weeks, states my opinion why the Supreme Court, if it follows the law, should hold the Disqualifying Clause self-enforcing and applicable to any candidate for president of the United States, but why it might reverse and remand for procedural or evidentiary errors, or due to particularities of Colorado’s (or any State’s) election law and procedure. For my legal background, click here.]

The “Disqualification Clause” of our Constitution is Section 3 of the Fourteenth Amendment (the “Amendment”). It disqualifies persons from serving as civil or military officers of the federal government, or of any state, if, after having taken an oath to “support the Constitution of the United States,” they “shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.” U.S. Const., Amendment 14, Sec.3 , quoted in full at the end of this post.

By virtue of his actions and omissions on and about January 6, 2021, this language likely disqualifies Donald J. Trump, the former President of the United States, from running for or holding any such office again, including the presidency. This post analyzes how and why the Clause applies and how those seeking disqualification should best assert it.

Parts 1 through 3 are arguments based solely on the law, its language, logic, and reason, disregarding politics, partisanship, political tactics, strategy, convenience and ease of execution. In my view, far too many commentators, including some with legal expertise, confuse the law with things that have nothing to do with the law. Part 4 summarizes my view of best practical way to apply these legal conclusions nationwide, State by State, with attention to this nation’s federalism, State sovereignty and diversity.

Part 1. The Disqualification Clause is, by its terms and under precedent, self-enforcing. It requires no action of Congress or any state legislature to enforce it. State election officials are best situated, as a practical matter, to serve as the first line of enforcement, because they administer and control federal elections in most states. (See part 4 below.)

Section 5 of the Amendment (the “Enforcement Clause”) reads as follows: “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” The words “this article” refer to the entirety of the Amendment.

In contrast, the Amendment itself calls each of its numbered parts a “Section.” If further proof were needed, one can cite the customary practice, both at Ratification and in the post-Civil-War Era, of referring formally to amendments to the Constitution as “Articles of Amendment.” Thus, the Enforcement Clause refers to and applies to each and every other section of the Amendment without distinction or discrimination among them.

By its terms, the Enforcement Clause is a grant of power to Congress to provide procedure and perhaps clarifying substantive details for applying the various Sections of the Amendment. Nothing in it states or even suggests that Congress must pass a law before the Amendment, or any part of it, can be enforced.

Subsequent history is clearest on this point for Section 1 of the Amendment. That Section creates so-called “due-process rights” by prohibiting any State from “depriving any person of life, liberty, or property without due process of law[.]”

In a number of cases, federal courts have struck down federal and state statutes, and state courts have struck down state statutes, as inconsistent with these “due-process rights.” In many cases, the court applying the Amendment has not cited, let alone required, any federal or state legislation to support this invalidation of otherwise valid law as “unconstitutional.” All these cases reflect the universal understanding that the Amendment, like all grants of basic human rights in our Constitution, is self-enforcing.

Even more persuasive is the Supreme Court’s gradual application of federal human rights, even though explicitly phrased as rights against the federal government, to the States through the medium of the Amendment and its Section 3. An example is our First Amendment, which expresses the human right of free speech as a prohibition against the federal government only: “Congress shall make no law . . . abridging the freedom of speech, or of the press[.]” (emphasis added.)

By its terms, this language limits only “Congress,” i.e., the federal legislature. But the Supreme Court has applied it to the States, their legislatures and their executives, recognizing freedom of speech as part of the “due-process rights” that Section 1 of the Amendment guarantees against infringement by the States. See Gitlow v. New York, 268 U.S. 652 (1925). The Supreme Court has similarly “extended” other human rights in our Bill of Rights for protection against state infringement under the Amendment’s due-process clause. See Gideon v. Wainwright, 372 U.S. 335 (1993) (right of indigent defendants in criminal cases to effective assistance of counsel).

At least a half-dozen similar decisions apply federally-protected human rights to the States, reasoning that the Amendment and its due process protections are self-enforcing. None required federal legislation to conclude that the federal right applied as against the States. This phalanx of Supreme Court decisions, taken over the course of most of a century, is conclusive on the issue of self-enforcement.

Additional corroboration comes from the part of Section 1 that grants so-called “birthright citizenship” to “persons born . . . in the United States[.]”. This right is universally recognized as granted by the Constitution through the Amendment, although other federal statutes refer to it.

The Amendment’s plain language and precedents applying it to federal and state statutes over the course of a century are conclusive. No part of the Amendment, and consequently not the Disqualifying Clause, requires federal legislation in order for it to have legal effect.

The Fourteenth Amendment is not just another dreary entry in the list of twenty-seven amendments so far. It’s more like a second Constitution or a second Bill of Rights. Over 600,000 Americans on both sides died before it and the other Civil-War Amendments became possible. That’s more combat deaths than in any other single war of ours, and not far from the total in all our other wars put together, including those in Vietnam, Afghanistan and Iraq.

In the aftermath of our Civil War, the victorious Union and its representatives pushed through the three so-called “Civil-War Amendments,” namely, the Thirteenth through Fifteenth. Together, the three amendments abolished slavery, granted birthright citizenship and basic due-processs rights to “any person” (not limited by citizenship), recalculated the approtionment of representatives by States, disqualified insurrectionists and traitors from serving in public office, validated public debt but not rebel debt, and gave citizens the right to vote without regard to “race, color, or previous condition of servitde.” In so doing, they reconfigured our nation from a mixed economy based in large part on the enslavement of human beings to a unified, free nation based on liberty, basic human rights for “any person”, birthright citizenship (plus naturalization), and universal voting rights.

Can anyone in possession of reason believe that the victors in our most deadly war ever did all this, and passed these changes at the highest level of our law (our Constitution), only so they could be whittled down subsequently during votes in Congress to “implement” them, or possibly killed by filibusters, a notorious tool of Southern slaveholders and racists? Such a belief not only beggars reason; it would deprive the victors in the War and in subsequent reconfiguration of our nation of the fruits of both their bloody victory and their crowning political achievement, the Civil-War Amendments.

Some historians and legal scholars consider those three amendments a second and more promising Founding. Accordingly, they give them a broad and liberal construction, just like our Bill of Rights.

After decades of suitably broad interpretation, the Fourteenth Amendment, through its Section 1, now lets all persons enforce certain basic human rights not just against the federal government, but also against the States. It thus extended our Bill of Rights to insure against incursions on our basic human rights at the State level.

Today we are slowly coming to terms with slavery as the core of our Civil War. But Lincoln’s pretext for waging it, and the motivation for much of the Union Army at the time, was preserving our Union against the Confederate States’ rebellion and treachery.

The Fourteenth Amendment as a whole, and especially its Disqualifying Clause, were a pledge of “never again!” written in blood. They are attempts to insure, through law rather than violence, that such a bloody, fratricidal war will never come again, and that rebels and traitors cannot achieve by demagoguery, guile or subterfuge what they could not achieve in the bloodiest war in American history. The notion that they require modern legislation to take effect is tantamount to erasing the Union’s victory in the Civil War, the sacrifices of all those who suffered and died in it, and the suffering of all the freed slaves and their descendants who have waited patiently for full equality ever since.

Part 2. The Disqualification Clause applies to the office of the President of the United States. In relevant part, the Amendment provides, “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 taken an oath to support the Constitution, has broken it. The presidency falls literally within the language “any office, civil or military, under the United States.” In fact, the president is both a civil and a military officer under the United States. Our president is the civil head of the Executive branch, and, by virtue of Article II, Section 2, “the Commander in Chief” of our armed forces. Is not the top commander an “officer”?

The explicit mention of an “elector of President” clinches this interpretation. It beggars reason to conclude that the drafters of the Amendment meant to disqualify traitorous electors for the presidency, but not the traitorous candidate for president that they sought to elect. Among many other things, such an interpretation would encourage traitorous candidates for president, themselves not disqualified, to suborn otherwise loyal electors by bribery, intimidation or coercion. Surely the drafters of the Disqualification Clause were not that foolish.

Similar common-sense reasoning refutes arguments based on the slight difference in language describing the federal offices subject to disqualification (“office . . . under the United States”) (emphasis added), and the langauge describing an officer who earlier took and later broke an oath of loyalty (“officer of the United States”) (emphasis added). Interpreting the former phrase as excluding the president would have the absurd practical result of disqualifying traitorous electors but not the traitorous candidate for president for whom they vote. It would also contravene the general notion of the rule of law under our Constitution. The president may be the Commander in Chief but is indeed “under” the United States, unless he or she becomes a king or dictator. And we all know what our Founders thought about kings.

The part of the Disqualification Clause relating to previous oaths of loyalty only strengthens this interpretation. It explicitly calls out as disqualified anyone who had “previously taken an oath . . . as an officer of the United States” and later broke it. Surely the president is an “officer of the United States,” at very least as “the Commander in Chief”. U.S. Const., Article II, Section 2. Thus a traitorous former president is disqualified from all the offices mentioned in the first part of the Disqualifying Clause. It’s nonsense to conclude that he can’t run for Congressman, Senator or elector of a president but can run for the top job again.

Thus, straightforward interpretation of the Amendment’s wording, Article II, common sense, history, and the absurdity of contrary interpretations compel the conclusion that candidates for the presidency—and, even more so, candidates who committed acts of insurrection or treasonous acts as former presidents—are subject to disqualification under the Disqualification Clause.

Part 3. The Supreme Court does not decide whether the conditions for disqualification have been met. The Disqualifying Clause sets out the conditions for disqualification precisely and in detail. An official is disqualified (“shall not be” any designated official) “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.” Whether the subject took such an oath, and whether s/he engaged in insurrection against the United States, or gave aid and comfort to its enemies, are quintessential matters of fact.

The Supreme Court is not a trier of fact. The Constitution is clear on this point. Article III, Section 2, limits the Supreme Court’s “original” (i.e., trial) jurisdiction to “all Cases affecting Ambassadors, other public Ministers and Counsels, and those in which a State shall be a party.” In other words, the Supreme Court has original jurisdiction in certain cases involving international affairs. “In all other Cases . . . , the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

“Appellate Jurisdiction . . . as to . . . Fact” does not mean finding fact. That’s the job of a trial judge or jury. The Supreme Court is not set up for that job: it does not take evidence, and it has no means of accommodating a jury.

Like other appellate courts, the Supreme Court decides whether lower tribunals’ findings of fact are procedurally proper, for example, whether the lower tribunal failed to observe the rules of evidence or procedure, and whether the ultimate decision reached is grossly inconsistent with properly admitted evidence. In either case, the Supreme Court returns (“remands”) the case to a lower tribunal for a second look. Then the lower tribunal either corrects its procedural or judgment error or (if the trial court) holds a new trial, after which the parties can appeal the case again, all the way up to the Supreme Court.

It bears emphasis that the Supreme Court’s appellate role is not to determine right and wrong, correct and incorrect, in matters of fact. It determines only whether a lower tribunal’s findings of fact fall within a “range of reason,” based not on some abstract vision of absolute truth, but on admissible evidence properly presented to the trier of fact, i.e., the original trial tribunal.

It’s entirely possible, although perhaps not likely, that the Supreme Court could uphold separate decisions to disqualify Trump and not to disqualify him, based on the differing evidence (and different errors) introduced in, and the different rules of, different jurisdictions. At least the Court might deny a request to disqualify filed too late in one jurisdiction, while upholding a similar request to disqualify filed on time in another.

So the notion that Trump and his opponents will try their disqualification cases, in person, before the Supreme Court, regardless where and in what jurisdiction they originate, is wildly inconsistent with the Supreme Court’s constitutional function, its minuscule role as a court of original jurisdiction, and they way it operates in practice. Our system of law is simply not set up for that.

Part 4. While a uniform, nationwide decision on Trump’s eligibility to run for president may be desirable in theory, it is not required, not legally or politically desirable, and not possible in practice. The so-called “double jeopardy clause” of the Fifth Amendment has no application to disqualification. It decrees, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S. Const., Amendment 5. By its terms, it applies to criminal offenses—and then only serious ones involving “jeopardy of life or limb”!—not disqualification from the privilege of running for president.

In any event, the privilege of running for president depends on the rules and procedures of multiple districts across fifty States. Filing deadlines and administrative requirements vary among jurisdictions. Procedural rules for filing challenges, deadlines for filing them, and procedures for substantiating the challenges through hearings and submission of written evidence vary from State to State. Ignoring these essential elements of State sovereignty is practically impossible and legally undesirable.

Under these circumstances, insisting on a single, uniform decision on disqualification would put a single judge or jury from a single State essentially in charge of the whole nation’s electoral fate. Suppose, for example, that a judge or jury in ruby-red Alabama decided that there had been no insurrection and no aiding or comforting the enemy, and the Supreme Court decided that there was no cognizable procedural or evidentiary error in that decision. Would the whole country, including all the big, blue, industrial states, accept that decision and keep Trump on the ballot?

Or suppose the contrary, that a judge or jury in mostly blue New Mexico decided that there had been an insurrection and aiding and comforting the enemy, and the Supreme Court found no cognizable procedural or evidentiary there. Would the rest of the nation, including red Texas and Florida, willingly strike Trump from their ballots?

A moment’s reflection reveals just how much chaos such an arrangement would cause. An attempt to produce a nationwide decision in a fragmented legal system would only inflame division and discord and produce exploding satellite litigation. Neither our electoral system nor our judicial system, including the Supreme Court’s appellate-only jurisdiction in these matters, is set up for that.

It would be far better for each State to decide on eligibility or disqualification under the Amendment according to its own rules, requirements and procedures, subject to the Supreme Court’s review for clear error in procedure or evidence. To act otherwise would be to “roll the dice” on a single decision in a single, probably small jurisdiction that would only inflame discord and resolve nothing.

The Disqualifying Clause applies nationwide, and it is self-enforcing. But nothing in it demands that different judges or juries in different States see the evidence the same way. Whether they do will depend not only on the imponderables of trying to separate evidence and law from human error, preconceptions and confirmation bias, but also on how skillful the lawyers and administrative personnel are in each case.

To bet the outcome of what probably will be the most consequential election in American history on those imponderables in a single State or single district is unwise to the point of national suicide. It will only encourage an unruly rush to judgment, as partisans push hurried and thoughtless litigation in ill-considered places in the hope of reaching the Supreme Court first.

Nothing in law requires a single overweening decision. There is no anti-double-jeopardy clause in the Amendment. And in any event disqualification (or not) in different jurisdictions is nothing like double jeopardy because the consequences are different in each. Each state has different and distinct electoral votes.

Conclusion. The Fourteenth Amendment is the law of the land. Its Disqualifying Clause is self-executing, just like its Section 1, which has been so interpreted for a century. By its terms, as well as by logic and reason, the Clause applies to disqualify insurrectionists and traitorous candidates for president, as well as traitorous candidates who broke their oaths taken in a previous presidency.

But the notion that it must be applied just once, in a legal-political version of Armageddon, possibly in a small state known for its vicious partisanship, is not only legally unsupported, but profoundly misguided.

For better or for worse, we are a nation of States, as our nation’s very name reflects. Let each State apply the Amendment and its Disqualification Clause in its own way, in accordance with its own procedures, deadlines and administrative needs, subject to loose review by the Supreme Court as the ultimate appellate body, which does not find facts but only legal error, and which reviews factual findings for evidentiary error and possibly gross errors of judgment. Only in this way can the law maintain order and avoid legal chaos while, at the same time, recognizing our federal system and its deep political divisions. And only in this way can our legal system accommodate the reality that different States have different timing and far different rules for primary elections.

Epilogue: I am not a Constitutional scholar. So there might be some obscure piece of federal legislation or national history that casts doubt upon the straightforward, common-sense interpretation of our highest written law set forth above. But there are strong reasons to doubt that any such tidbit should be decisive.

The possibility of applying the Disqualifying Clause to Donald J. Trump has been under intense scrutiny for three years, since the January 6 Insurrection of 2021, which he apparently helped incite, encourage, and, with extraordinary negligence, recklessness or even deliberation, failed to timely suppress. If there were any tidbit of law or history so decisive as to upend the straightforward interpretation of the Disqualifying Clause, its language and history, it would have been cited and argued by now.

None has been. On the contrary, opponents of disqualification have repeatedly cited the lack of precedent and a plethora of supposedly open issues as reason for caution in applying the Disqualification Clause, or for not applying it at all. But there is well over a century of precedent in applying the Fourteenth Amendment generally, and its text supports applying that precedent no differently to Section 3 (the Disqualification Clause) than to Section 1 or any other section. Could it be that opponents of disqualification, having no solid legal arguments, are simply blowing smoke?

As for history, the most striking and self-evident history of the Fourteenth Amendment and its Disqualifying Clause was what preceded and motivated their adoption: our Civil War. Failure to interpret and apply it as written would be as grievous an error against our democracy and our nation’s future as one can imagine. By allowing insurrectionists and traitors to seize power illegally but without violence, it would very likely conduce, in time, to the far greater violence of a Second Civil War.

Disqualification Clause, Fourteenth Amendment, Section 3 (full text, with modern capitalization):

Section 3

“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.”


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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