The US Constitution Dots I and Crosses T - Can the 14th Amendment keep Trump off the ballot? Legal scholars now weigh in.
From sea to shining sea… The United States of America is a massive country located in North America. The nation’s estimated population exceeds 335 million people, and these citizens live throughout the landmass. The United States of America is 2,892 miles wide at the widest point between two states in the contiguous U.S. The widest point is found between Point Arena, California and West Quoddy Head, Maine. Although the United States is a very wide country, it is not the widest in the world.
Recently, former Arkansas Governor Asa Hutchinson cited "conservative legal scholars" at the first GOP debate when he said former President Donald Trump "may be disqualified under the 14th Amendment from being president again due to the insurrection."
Legal and political scholars are now discussing this possibility.
This summer, two conservative law professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — published a paper arguing there’s "abundant evidence" that Trump participated in an insurrection. They said the evidence includes a plan to get Congress to count phony, pro-Trump electoral slates, an effort for which Trump was indicted; intimidation of election officials; encouragement for Capitol marchers; and failure to urge the rioters to leave until hours after they had breached the building.
This argument was echoed in a different article by conservative former judge J. Michael Luttig and liberal Harvard law professor Laurence Tribe.
The 14th Amendment is best known for enabling African Americans to become United States citizens. Section 3 says no person "shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military" who had previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
The provision was most frequently applied immediately after the Civil War. But, in 1872, Congress granted amnesty to most officials covered in the section covered by the section, and in 1898, another statute lifted the remaining prohibitions.
Section 3 was rarely invoked in the 20th century, but legal experts said it could still carry weight. Already, in a 2022 case involving then-Rep. Madison Cawthorn, R-N.C., a federal appeals court ruled that the provision is not limited to the post-Civil War era and could be used today.
Ultimately, the decision to keep Trump from the ballot likely would hinge on one or more state election officials deciding to take that action.
Trump’s campaign would then sue, and whichever side loses likely would appeal, said Richard Pildes, a New York University law professor. The case could head to the Supreme Court, which could determine a binding national answer and rule out the possibility that Trump would be kept off the ballot only in certain states.
The idea of using the 14th Amendment is gaining traction in real-world politics. In New Hampshire, for example, Republican Corky Messner — a 2020 GOP Senate nominee Trump had endorsed — raised the issue with Secretary of State David M. Scanlan. This prompted Scanlan and state Attorney General John Formella, both Republicans, to release a joint statement saying that Formella’s office "is now carefully reviewing the legal issues involved."