Here we go again
Will Section 3 of the 14th Amendment, which bars from public office anyone who engages in insurrection or rebellion or gives aid or comfort to America’s enemies, stop Donald Trump?
How does a democracy protect itself against a political leader who is openly hostile to democratic self-rule? This is the dilemma the nation faces once again as it confronts a third presidential run by Donald Trump, even as he still refuses to admit he lost his second.
We shouldn’t be in this situation to begin with. The facts are well known but necessary to repeat, if only because we must never become inured to them: Abetted by a posse of low-rent lawyers, craven lawmakers and associated crackpots, Trump schemed to overturn the 2020 election by illegal and unconstitutional means. When those efforts failed, he incited a violent insurrection at the United States Capitol, causing widespread destruction, leading to multiple deaths and—for the first time in American history—interfering with the peaceful transfer of power. Almost two years later, he continues to claim, without any evidence, that he was cheated out of victory, and millions of Americans continue to believe him.
The best solution to behavior like this is the one that’s been available from the start: impeachment. The founders put it in the Constitution because they were well acquainted with the risks of corruption and abuse that come with vesting great power in a single person. Congress rightly used this tool, impeaching Trump in 2021 to hold him accountable for his central role in the Jan. 6 siege. Had the Senate convicted him as it should have, he could have been disqualified from holding public office again. But nearly all Senate
Republicans came to his defense, leaving him free to run another day.
There is a less-known solution in our Constitution to protect the country from Trump: Section 3 of the 14th Amendment, which bars from public office anyone who, “having previously taken an oath” to support the Constitution, “engaged in insurrection or rebellion” or gave “aid or comfort” to America’s enemies.
On its face, this seems like an eminently sensible rule to put in a nation’s governing document. That’s how Rep. David Cicilline of Rhode Island, who has drafted a resolution in Congress enabling the use of Section 3 against Trump, framed it. “This is America. We basically allow anyone to be president,” Cicilline told me. “We set limited disqualifications. One is, you can’t incite an insurrection against the United States. You shouldn’t get to lead a government that you tried to destroy.”
In September, for the first time in more than a century, a New Mexico judge invoked Section 3, to remove from office a county commissioner, Couy Griffin, who had been convicted of entering the Capitol grounds as part of the Jan. 6 mob. This raised hopes among those looking for a way to bullet-proof the White House against Trump that Section 3 might be the answer.
As Jan. 6 showed the world, Trump poses a unique and profound threat to the Republic: He is an authoritarian who disregards the Constitution and the rule of law and who delights in abusing his power to harm his perceived opponents and benefit himself, his family and his friends. For that reason, I am open to using any constitutional means of preventing him from even attempting to return to the White House.
At the same time, I’m torn about using this specific tool. Section 3 is extraordinarily strong medicine. Like an impeachment followed by conviction, it denies the voters their free choice of those who seek to represent them. That’s not the way democracy is designed to work.
And yet it is true, as certain conservatives never tire of reminding us, that democracy in the United States is not absolute. There are multiple checks built into our system that interfere with the expression of direct majority rule: the Senate, the Supreme Court and the Electoral College, for example.
The 14th Amendment’s disqualification clause is another example—in this case, a peaceful and transparent mechanism to neutralize an existential threat to the Republic.
Nor is it antidemocratic to impose conditions of eligibility for public office. For instance, Article II of the Constitution puts the presidency off limits to anyone younger than 35. If we have decided that a 34-year-old is, by definition, not mature or reliable enough to hold such immense power, then surely we can decide the same about a 76-year-old who incited an insurrection in an attempt to keep that power.
So could Section 3 really be used to prevent Trump from running for or becoming president again? As a legal matter, it seems beyond doubt. The Capitol attack was an insurrection by any meaningful definition—a concerted, violent attempt to block Congress from performing its constitutionally mandated job of counting electoral votes. He engaged in that insurrection, even if he did not physically join the crowd as he promised he would. As top Democrats and Republicans in Congress said during and after his impeachment trial, the former president was practically and morally responsible for provoking the events of Jan. 6.
The overwhelming evidence gathered and presented by the House’s Jan. 6 committee has only made clearer the extent of the plot by Trump and his associates to overturn the election, and how his actions and his failures to act led directly to the assault and allowed it to continue as long as it did. In the words of Rep. Liz Cheney, the committee’s vice chair, Trump “summoned the mob, assembled the mob and lit the flame of this attack.”
A few legal scholars have argued that Section 3 does not apply to the presidency because it does not explicitly list that position. It is hard to square that claim with the provision’s fundamental purpose, which is to prevent insurrectionists from participating in American government. It would be bizarre in the extreme if Griffin’s behavior can disqualify him from serving as a county commissioner but not from serving as president.
It’s not the legal questions that give me pause, though; it’s the political ones.
First is the matter of how Republicans would react to Trump’s disqualification. An alarmingly large faction of the party is unwilling to accept the legitimacy of an election that its candidate didn’t win. Imagine the reaction if their standard-bearer were kept off the ballot altogether. They would thunder about a “rigged election”—and unlike all the times Trump has baselessly invoked that phrase, it would carry a measure of truth. Combine this with the increasingly violent rhetoric coming from right-wing media figures and politicians, including top Republicans, and you have the recipe for something far worse than Jan. 6. On the other hand, if partisan outrage were a barrier to invoking the law, many laws would be dead letters.
The more serious problem with Section 3 is that it is easy to see how it could morph into a caricature of what it is trying to prevent. Keeping specific candidates off the ballot is a classic move of autocrats, from Nicolas Maduro in Venezuela to Alexander Lukashenko in Belarus to Vladimir Putin. It sends the message that voters cannot be trusted to choose their leaders wisely—if at all. And didn’t we just witness Americans around the country using their voting power to repudiate Trump’s Big Lie and reject the most dangerous election deniers? Shouldn’t we let elections take their course and give the people the chance to (again) reject Trump at the ballot box?
To help me resolve my ambivalence, I called Rep. Jamie Raskin of Maryland, who sits on the Jan. 6 committee and taught constitutional law before joining Congress. He acknowledged what he called an understandable “queasiness” about invoking Section 3 to keep Trump off the ballot.
But Raskin argued that this queasiness is built into the provision. “What was the constitutional bargain struck in Section 3?” he asked. “There would be a very minor incursion into the right of the people to elect exactly who they want, in order to obtain much greater security for the constitutional order against those who have demonstrated a propensity to want to overthrow it when it is to their advantage.”
The contours of the case for Trump’s disqualification might get stronger yet, as the Justice Department and state prosecutors continue to pursue multiple criminal investigations into him and his associates and as the Jan. 6 committee prepares to release its final report. While he would not be prohibited from running for office even if he was under criminal indictment, it would be more politically palatable to invoke Section 3 in that case and even more so if he was convicted.
I still believe that the ideal way for Trump to be banished for good would be via the voters. This scenario is democracy’s happy ending. After all, self-government is not a place; it is a choice, and an ongoing one. If Americans are going to keep making that choice—in favor of fair and equal representation, in favor of institutions that venerate the rule of law and against the threats of authoritarian strongmen—they do it best by themselves. That is why electoral victory is the ultimate political solution to the ultimate political problem. It worked that way in 2020, when an outright majority of voters rejected Trump and replaced him with Joe Biden.
Whether or not invoking Section 3 succeeds, the best argument for it is to take the Constitution at its word. “We undermine the importance of the Constitution if we pick and choose what rules apply,” Cicilline told me. “One of the ways we rebuild confidence in American democracy is to remind people we have a Constitution and that it has in it provisions that say who can run for public office. You don’t get to apply the Constitution sometimes or only if you feel like it. We take an oath. We swear to uphold it. We don’t swear to uphold most of it. If Donald Trump has taught us anything, it’s about protecting the Constitution of the United States.”
Surely the remedy of Section 3 is worth pursuing only in the most extraordinary circumstances. Just as surely, the events surrounding Jan. 6 clear that bar. If inciting a violent insurrection to keep oneself in office against the will of the voters isn’t such a circumstance, what is?