Last month, the states of Colorado and Maine moved to disqualify Donald Trump as a candidate in the 2024 presidential election, citing Section 3 of the 14th Amendment. In response, Trump has asked the Supreme Court to intervene on his behalf in the Colorado case and he has appealed Maine’s decision.
There is a real question of whether this attempt to protect American democracy — by removing a would-be authoritarian from the ballot — is itself a threat to American democracy. Will proponents and supporters of the 14th Amendment option effectively destroy the village in order to save it?
It may seem obvious, but we should remember that Trump is not an ordinary political figure. And try as some commentators might, there is no amount of smoke one could create — through strained counterfactuals, dire warnings of a slippery slope or outright dismissal of the events that make the Trump of 2024 a very different figure than the Trump of 2020 — that can obscure or occlude this basic fact.
In 2020, President Trump went to the voting public of the United States and asked for another four years in office. By a margin of 51 percent to 47 percent, the voting public of the United States said no. More important, Trump lost the Electoral College, 306 to 232, meaning there were enough of those voters in just the right states to deny him a second term.
The people decided. And Trump said, in so many words, that he didn’t care. What followed, according to the final report of the House Select Committee on Jan. 6, was an effort to overturn the results of the election.
Trump, the committee wrote, “unlawfully pressured State officials and legislators to change the results of the election in their States.” He “oversaw an effort to obtain and transmit false electoral certificates to Congress and the National Archives.” He “summoned tens of thousands of supporters to Washington for January 6th,” the day Congress was slated to certify the election results, and “instructed them to march to the Capitol” so that they could “ ‘take back’ their country.’ ” He even sent a message on Twitter attacking his vice president, Mike Pence, knowing full well that “a violent attack on the Capitol was underway.”
In the face of this violence, Trump “refused repeated requests over a multiple hour period that he instruct his violent supporters to disperse and leave the Capitol, and instead watched the violent attack unfold on television.” He did not deploy the National Guard, nor did he “instruct any Federal law enforcement agency to assist.”
Trump sought and actively tried to subvert constitutional government and overturn the results of the presidential election. And what he could not do through the arcane rules and procedures of the Electoral College, he tried to do through the threat of brute force, carried out by an actual mob.
Looked at this way, the case for disqualifying Trump through the 14th Amendment is straightforward. Section 3 states that “No person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath … 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.”
As the legal scholar Mark A. Graber writes in an amicus brief submitted to the Colorado Supreme Court, “American jurists understood an insurrection against the United States to be an attempt by two or more persons for public reasons to obstruct by force or intimidation the implementation of federal law.” There was also a legal consensus at the time of the amendment’s drafting and ratification that an individual “engaged in insurrection whenever they knowingly incited, assisted or otherwise participated in an insurrection.”
We also know that the framers of the 14th Amendment did not aim or intend to exclude the president of the United States from its terms. In 1870, the Republican-controlled Senate refused to seat Zebulon Vance, the former Confederate governor of North Carolina. It strains credulity to think that those same Republicans would have sat silent if the Democratic Party had, in 1872, nominated a former Confederate leader for the presidency.
Under a plain reading of Section 3 — and given the evidence uncovered by the Jan. 6 committee — Trump cannot stand for the presidency of the United States or any other federal office, for that matter.
The real issue with disqualifying Trump is less constitutional than political. Disqualification, goes the argument, would bring American democracy to the breaking point.
In this line of thinking, to deny Americans their choice of presidential candidate would destroy any remaining confidence in the American political system. It would also invite Trump’s allies in the Republican Party to do the same to Democrats, weaponizing Section 3 and disqualifying candidates for any number of reasons. Disqualification would also give far more power to the courts, when the only appropriate venue for the question of Trump is the voting booth.
But these objections rests on a poor foundation. They treat Trump as an ordinary candidate and Jan. 6 as a variation on ordinary politics. But as the House Select Committee established, Jan. 6 and the events leading up to it were nothing of the sort. And while many Americans still contest the meaning of the attack on the Capitol, many Americans also contested, in the wake of the Civil War, the meaning of secession and rebellion. That those Americans viewed Confederate military and political leaders as heroes did not somehow delegitimize the Republican effort to keep them, as much as possible, out of formal political life.
What unites Trump with the former secessionists under the disqualification clause is that, like them, he refused to listen to the voice of the voting public. He rejected the bedrock principle of democratic life, the peaceful transfer of power.
The unspoken assumption behind the idea that Trump should be allowed on the ballot and that the public should have the chance to choose for or against him yet again is that he will respect the voice of the electorate. But we know this isn’t true. It wasn’t true after the 2016 presidential election — when, after winning the Electoral College, he sought to delegitimize the popular vote victory of his opponent as fraud — and it was put into stark relief after the 2020 presidential election.
Trump is not simply a candidate who does not believe in the norms, values and institutions we call American democracy — although that is troubling enough. Trump is all that and a former president who used the power of his office to try to overturn constitutional government in the United States.
Is it anti-democratic to disqualify Trump for office and deny him a place on the ballot? Does it violate the spirit of democratic life to deny voters the choice of a one-time officeholder who tried, under threat of violence, to deny them their right to choose? Does it threaten the constitutional order to use the clear text of the Constitution to hold a former constitutional officer accountable for his efforts to overturn that order?
The answer is no, of course not. There is no rule that says democracies must give endless and unlimited grace to those who used the public trust to conspire, for all the world to see, against them. Voters are free to choose a Republican candidate for president; they are free to choose a Republican with Trump’s politics. But if we take the Constitution seriously, then Trump, by dint of his own actions, should be off the board.
Not that he will be. The best odds are that the Supreme Court of the United States will punt the issue of Section 3 in a way that allows Trump to run on every ballot in every state. And while it will be tempting to attribute this outcome to the ideological composition of the court — as well as the fact that Trump appointed three of its nine members — I think it will, if it happens, have as much to do with the zone of exception that exists around the former president.
If Trump has a political superpower, it’s that other people believe he has political superpowers. They believe that any effort to hold him accountable will backfire. They believe that he will always ride a wave of backlash to victory. They believe that challenging him on anything other than his terms will leave him stronger than ever.
Most of this is false. But to the extent that it is true, it has less to do with the missed shots — to borrow an aphorism from professional sports — than it does with the ones not taken in the first place.
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