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This is for voters to decide

The 14th Amendment should not prevent former President Trump from running

Former President Donald Trump arrives at Hartsfield-Jackson Atlanta International Airport on Aug. 24. Associated Press/Photo by Alex Brandon

This is for voters to decide
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In the aftermath of the Civil War, the reconstruction Congress adopted three amendments to the Constitution. Two were straightforward: the 13th Amendment, which bars slavery, and the 15th Amendment, which guarantees the right to vote regardless of race. In between came the 14th Amendment with its multitude of provisions aimed to ensure that the Southern states respected the Constitution as they returned to the union. Most contemporary legal cases focus on Section 1, which promises no state shall deny due process or equal protection of the laws. An unexpected controversy is now placing long-dormant Section 3 on center stage, as former president Donald Trump seeks a second term in office.

Section 3 bars from any governmental office a person who took an oath to support the Constitution of the United States and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” On Jan, 20, 2017, Donald Trump took just such an oath at his inauguration ceremony. The question, then, is whether he “engaged in insurrection” or “gave aid or comfort” to the nation’s enemies on Jan. 6, 2021, the fateful day the Capitol briefly fell to a crowd of pro-Trump protestors. That morning, he gave a speech at a rally on the Capitol Mall urging people to “stop the steal” by demanding that Congress not proceed to count the electoral votes. Some attendees marched from the rally to the Capitol, and some of those marchers overwhelmed Capitol police barricades and stormed the building.

Though several legal commentators had suggested the possibility barring Trump from the ballot at various points, the idea was reenergized in August when two well-respected conservative-leaning law professors, Michael Stokes Paulsen of the University of St. Thomas School of Law and Will Baude of the University of Chicago School of Law, published an exhaustive law review article tentatively concluding Trump flunks the constitutional test. Since then, political figures like U.S. Senator Tim Kaine, D.-Va., and U.S. Rep. Adam Schiff, D.-Calif., have seized on their article to push to bounce Trump off the ballot. Others, notably legal historian Michael McConnell of Stanford Law School, have questioned this interpretation.

Though Trump was impeached by the U.S. House of inciting insurrection by his words and deeds that day, he was not convicted by the Senate. 

These scholars agree on one thing: The framers of the 14th Amendment had a purpose in adopting this provision, and that was to prevent senior Confederate leaders from claiming state and federal offices in the new Southern governments, where they could undermine or undo Reconstruction. Whatever one says of Donald Trump’s decisions and intentions on Jan. 6, he did not lead people in seceding from the union and then waging a four-plus-year war by a regular army fighting against the United States. Though he was impeached by the U.S. House of inciting insurrection by his words and deeds that day, he was not convicted by the Senate.

We live in a republic, not a democracy. Our system of checks-and-balances includes not only separate branches that compete for power, but also institutional safeguards like the Electoral College and a bicameral legislature. As I’ve written before, impeachment is a tool to be used carefully and guardedly in serious situations, not to score political points, because it overrides the people’s express electoral choice. Richard Nixon’s downfall was a model for an appropriate impeachment, representing a broad, bipartisan coalition inside and outside of Congress that uniformly recognized the deep wrongness of his actions. Totally partisan actions lead nowhere, such as when the Tennessee State House recently voted to expel two members for unbecoming conduct, and they both then won the subsequent special elections to their vacant seats.

Barring Trump from the ballot fails to meet the high nonpartisan standard. At the moment, fully aware of everything that happened on Jan. 6, a majority of Republican primary voters support him. Polling also shows him basically tied with President Joe Biden for 2024. It would be a dangerous affront to millions of Americans to prevent them from voting for their preferred candidate for president based on a hotly debated constitutional provision applied to a highly questionable interpretation of a recent event. The courts will do their work in several trials, but the political verdict on Donald J. Trump will be delivered by voters, not by any court.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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