How the 14th Amendment Can Democratically Disqualify Trump, But Why It Won't:

Background:

A recent article in The Atlantic titled ‘Trump is Constitutionally Prohibited from the Presidency’ by distinguished former judge J. Michael Luttig and father of modern constitutional law, Harvard Professor Laurence Tribe, has induced uproar across the legal and political spheres. The novel legal theory cites Section 3 of the 14th Amendment as forever prohibiting Trump from holding federal office due to his involvement with the January 6 insurrection. Paraphrasing from my mini copy of the United States Constitution, the provision reads, “No person shall… hold any office… (who) shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies (of the government) thereof.” Briefly put any sworn official who has committed the actions attributed to former President Trump is constitutionally barred from federal office.

While originally erected to prevent former Confederate officials from assuming public office positions following the Civil War, the theory has garnered bipartisan validation in our current context. Co-author Judge Luttig is conservative, and other conservative legal scholars echo his sentiments. This includes UChicago Law professor William Baude and St. Thomas School of Law professor Michael Paulsen, both of whom belong to the Federalist Society, a legal organization with a sizeable influence among conservative legal thinkers. They recently previewed a conclusion from their upcoming UPenn Law Review article which congruently upholds the validity of the 14th Amendment theory. The cohort of conservative legal scholars has recently been joined by Republican primary contender Asa Hutchinson, who stated in an interview with The Hill that Trump “may not qualify to be president,” basing his claim on the same provision.

All of the aforementioned legal scholars assert that this provision is ‘legally self-executing,’ meaning that it doesn’t require legislation or a court decision to bar someone from office. Any government official, state or federal, whose duty is to apply the Constitution must obey Section 3 on their own accord. Thus Tribe proposed during his August 19 MSNBC interview that it’s up to each and every Secretary of State to uphold their constitutional obligation and exclude Trump from primary election ballots. Trump can challenge this in court but will assume the burden of proof and operate under ‘presumed guilt,’ as opposed to the other way around.

According to various discourse participants, this would prove itself a monumental undertaking given Tribe’s observation that Trump, while twisting the narrative regarding January 6’s events, does not deny their occurrence, impact, or gravity; he simply champions them as an act of courage rather than rebellion. In response to this challenge, the judge would exercise judicial review in upholding the Secretary of State’s decision to exclude Trump from the ballot. As to be further dissected in this article’s ‘Opinion’ section, the notion of state election officials single-handedly placing the presidency out of Trump’s reach is heavily contended on multiple bases. Others wish to defer this responsibility directly onto the judicial system (as our society so frequently defaults to doing so) by bringing suit, but this too faces complications regarding checks and balances and precedent. In Tribe’s words: “The Constitution says a lot of things, but it takes people to honor it and enforce it.” Thus endures the question of ‘how will Section 3 of the 14th Amendment be enforced?’ Furthermore, who will be the one to enforce it?

Opinion:

*divided into subsections to provide structural clarity

Excluding the Trump worshippers turning a negligent blind eye to January 6 entirely, the theory’s validity is widely accepted. Section 3 of the 14th Amendment is both direct and comprehensible, pitting Trump’s actions on January 6 squarely within its jurisdiction. Even I, a 17-year-old high school senior with no legal experience, can comprehend the theory’s substance with ease, and view it as a viable option. However, I disagree with both aforementioned methods of enforcement; neither state ballot officials nor a judicial injunction will keep Trump out of the Oval Office in 2024 without further subverting our democratic norms.

Secretary of State Approach:

As stated, Luttig and Tribe assert that because section 3 is self-executing, the theory can be applied independently of a judicial order or congressional statute. They paint a naively optimistic picture in which a sufficient portion of Secretaries of State keep Trump’s name off of the primary ballot that he’s unable to win the Republican nomination. This assumes that every Secretary of State will abide by this clear, constitutional command by the 14th Amendment’s disqualification clause (upholding the constitution is in their job description after all…), but America’s political status quo constrains the theory to wishful thinking.

According to the latest Iowa Republican primary poll, Trump leads the race by historic margins. For the tried and true Republican states, regardless of whether their Sec. of State supports Trump, they can’t silence the voice of their state’s voters and party’s mission by refusing to put their golden boy on the ballot. Take Trump’s top 3 states -- Alabama, Wyoming, and West Virginia (West Virginia also being where Trump seeks to draw a new jury pool for his federal election subversion trial…): According to a map of Trump approval ratings by state from worldpopulationreview.com, he’s viewed favorably by over 60% of the population. The notion that the Sec. of State in Alabama, Wyoming, or West Virginia would ostracize themselves from their state and likely the Republican party to uphold an argument perceived by conservatives as systematic weaponization is outrageous. At face value, the Sec. of State approach holds its water, but no Sec. of State in a Trump state has the courage to fulfill this section of their job description… and who can blame them? Who cares if these individuals believe keeping Trump off of the ballot is the moral decision; As the reverend in a room full of holy rollers, your supporters, would you force them to abandon god because the atheists said he did something wrong? The analogy may be far-fetched, but the message is clear. Any Trump Sec. of State would be flushing their political career down the drain and overstepping their precedential power by single-handedly preventing their state’s voters from electing their lord and savior. Despite the Sec. of States’ constitutional obligations to actualize this approach, it remains staunchly outside the realm of possibility.

A recent Washington Post article also proposed a legal rejection of the Sec. of State approach. Contradicting Tribe’s claim that the disqualification clause is ‘self-executing,’ the article cites an 1869 ruling by incumbent Chief Justice of the United States Salmon P. Chase in which he issued a circuit court opinion holding that ‘Section 3 was not self-enforcing, but rather could only go into effect if Congress passed a law directing its implementation.’ More on a ‘congressional statute’ later, but regardless of this interpretation’s validity, its existence represents an additional path of resistance facing the Sec. of State ballot exclusion approach.

Judicial Order Approach:

This brings us to the other proposed method of applying the 14th Amendment’s disqualification clause: a judicial injunction. Luttig and Tribe denounced this approach in their interview with MSNBC, but given their preferred method’s infeasibility, this measure requires its own specialized analysis.

Unfortunately, a judicial order barring Trump from running for office opens up its own Pandora’s Box of political and precedential dangers. First off, for an order to be issued on this matter, someone would need to bring suit against Trump… so who? DeSantis’s name and others of Trump’s primary contenders have been floated, but how much really needs to be said? This would present a blatant and direct act of political persecution, regardless of whether or not it’s justifiable under the law. DeSantis bringing the case against Trump would immediately invalidate the charges given the context of Trump and Desantis’s relationship. Contrary to Trump’s fictitious claims about Biden’s attempts to ‘jail his political opponents with federal indictments (in which Jack Smith is an independent prosecutor acting on behalf of the DOJ, may I add), his claim would be legitimate here. DeSantis, or any other Republican contender for that matter, can not bring suit against Trump because it would be immediately discredited as a malicious political scheme to garner electoral support as opposed to an expression of authentic concern for the Constitution.

In the event that a credible figure sues Trump and a judge issues an injunction, so what? One would be ‘deranged,’ as Trump infamously dubbed Jack Smith, to believe that a judicial order would spell the end of Trump’s 2024 campaign. We’re discussing the man who jeopardized our nation’s democracy both by inciting an insurrection in our nation’s capitol and conspiring to subvert the electoral process; Trump won’t pack up his bags just because some judge tells him to. He’s already received judicial orders in numerous indictments prohibiting him from threatening prosecutors or witnesses or revealing sensitive information regarding the discovery process, and how did Trump respond? He threatened former Lt. Governor of Georgia Jeff Duncan, who was supposed to testify before the Fulton County Grand Jury in the Georgia RICO indictment, to not testify, and called ‘Liddle Mike Pence’ delusional in response to Pence’s recent criticism of Trump’s scheme to overturn the 2020 election. The leading candidate for the ‘party of law and order’ has no respect for judicial orders, so what would an injunction requiring him to cancel his 2024 campaign actually accomplish? Absolutely nothing.

Assessing the ‘who’ and ‘how’ aspects of the judicial order approach just scratches the surface of its concerns. I believe its greatest pitfall lies in its precedential implications. Our society habitually circumvents the legislative branch in deciding contentious political issues. Congress represents the voice of the people, the most direct form of democracy in our federal government, yet we’ve become so eager to defer to the judicial process in remedying our defining issues, prioritizing 9 partisan voices over the rest of our country’s. Judicial review bestows the Supreme Court and federal courts the final say in interpreting the Constitution, which it’s historically done by construing statutes passed by Congress, not through direct interpretation of the Constitution itself.

A specific doctrine known as the ‘political question’ doctrine, was adopted by the Supreme Court in 1849 to preserve our checks and balances system. Congressional paralysis -- a consequence of America’s profound polarization -- has resulted in judicial overempowerment, which as articulated in my article concerning the affirmative action ruling, is inherently anti-democratic.

As with a Sec. of State, a judge single-handedly preventing the leading Republican candidate from running, while legal, both threaten our checks and balances system and undermine authority in the judicial process. This action comes off as an abuse of power and thus erodes faith in the process itself. Besides, disregarding political norms and the soft guardrails of democracy is Trump’s trademark! Using this method to apply the disqualification clause would mean stooping to Trump’s level, furthering his damages to our democracy by acting in hypocrisy. Democrats must adhere to a higher standard, regardless of their unrelenting hostility toward Agent Orange.

For similar reasons concerning precedent and over-empowerment, neither the Sec. of State nor the judicial order approach is viable. This leaves my favorite method of enforcing Section 3 of the 14th Amendment, and it just so happens to be the most democratic:

Congressional Statute + Judicial Validation Approach:

I’ve alluded to the idea of a congressional statute that invokes the 14th Amendment’s disqualification clause throughout this article, so let’s spell it out: The most democratic approach to apply Section 3 of the 14th Amendment in barring Trump from the presidency involves Congress legislating a bipartisan bill that Trump challenges in the Supreme Court, which will then act squarely within its precedential jurisdiction and uphold the statute's constitutionality. This is how our system was intended to work. Congressional representatives channel the people’s voices. The bill is constructed so that it’s supported by members from both parties; it’s bipartisan. The Supreme Court then merely exercises its fundamental responsibility of judicial review, established by founding father John Marshall in Marbury v. Madison (1803), by ruling on the law’s constitutionality. Man, it’s almost as if this is too perfect. Newsflash! It is, and we, Republicans and Democrats, society, are to blame.

Political and societal polarization, the pervasive ‘us vs. them’ mentality, is destroying our democracy. Compromise, a defining feature of both democracy and the legislative process, directly opposes polarization. Polarization causes congressional paralysis, where Congress is unable to facilitate the passing of bipartisan statutes due to its inability to compromise, as compromise contradicts the idea of political leverage, which goes hand-in-hand with polarization. This way of thinking, exercised by our politicians and everyday citizens, centers around the idea that I am 100% right and you are 100% wrong; concession is but a mere fantasy. Congressional paralysis causes our country to seek other remedies for our societal ills. Time and time again the judicial process serves as our saving grace and enables us to limp along under a facade of stability, but this too undermines our democracy. Judicial over-empowerment threatens our quintessential system of checks and balances, so if precedent derived from pre-revolutionary times gets swept under the rug, what’s left of our democracy?

The answer is nothing. Polarization implements a discrete method of democratic assassination similar to how the ancient Chinese executed their prisoners of war -- death by a thousand cuts. Yet, our democracy is in a relentless battle against this insidious force, teetering on the brink of its complete evisceration. Society must intervene by depolarizing before we witness our democracy’s irrevocable demise.

In summary, both the Sec. of State and judicial order applications of the 14th Amendment’s disqualification clause disrupt democratic precedent and necessitate over-empowerment of their distributor. To avoid these ailments, Congress needs to pass a statute based on the provision that’s then upheld by the Supreme Court, as this is the disqualification clause’s most democratic application. But despite its perfection, because of congressional paralysis -- a detriment of polarization -- this option becomes impossible. While disappointing, I must concede that the 14th Amendment theory will most likely remain theoretical, not due to a deficiency of merit, but because our contemporary political system lacks the maturity to implement it without subverting the democratic process.