September 14, 2023

By now, it is clear that the concerted effort to paint Donald Trump as a criminal has backfired. After four indictments, including the most recent 13-count indictment in Fulton County, Georgia, Pres. Trump holds a commanding lead among prospective Republican primary voters in Iowa and elsewhere. Evidence indicates that Trump’s criminal indictments strengthen, rather than shrink, his poll numbers. Enraged by Trump’s rising popularity, his political opponents are now looking to keep his name off the ballot entirely. Already, this effort has gained momentum in Michigan, New Hampshire, and  Arizona. These states, egged on by elite law professors, have turned the 14th Amendment, which was previously used to prevent ex-Confederates from seeking office after the Civil War, into an improvised legal weapon designed to bar the former president from reclaiming office after his actions in the weeks following the 2020 presidential election.

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Although this legal effort can be seen as politics at its worst and as an endeavor to undermine elections and our democracy, Trump’s political and legal opponents — both liberal and conservative — have endorsed the claim that the Constitution stands between Trump and the White House. Even though such an effort is likely to backfire, Trump’s opponents — most prominently, Professors William Baude and Michael Stokes Paulsen — assert that the “Fourteenth Amendment forbids holding office by former office holders who have participated in insurrection or rebellion.” Strikingly, they claim that Section Three of the 14th Amendment bars former President Trump from office because of his alleged participation in the attempted overthrow of the 2020 presidential election results.

Neither evidence nor precedent supports this idea. Moreover, it is clear that special counsel Jack Smith declined to charge Trump with “insurrection” or “rebellion.” Nevertheless, blinded by Trump Derangement Syndrome and demanding that the people submit to their analysis the way snakes are drawn irresistibly to open fire, the professors support the tyranny of the few rather than democracy favored by the people.

Trump’s adversaries contend that secretaries of State may not list on their election ballots as candidates anyone who is not eligible to hold presidential office despite the language of Article II of the Constitution.  Article II, Section 1, Clause 5 of the United States Constitution states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”

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Against this language, Trump’s opponents argue that Article Three of the 14th Amendment remains in legal force and has real-world consequences. Article Three states: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may, by a vote of two-thirds of each House, remove such disability.”

Pursuing an act of pure political desperation that inevitably leads to the further erosion of trust, Trump’s opponents admit that Section Three was designed to address a particular situation: the acute problems arising after the Civil War from the attempt by Southern states to secede from the republic. After the Civil War, Southern states sent insurrectionists to Washington, D. C. to serve in Congress. This prompted Congress to propose Section Three of the 14th Amendment, disqualifying former Confederates from federal and state office. While Trump’s hectoring opponents claim he should be disqualified without so much as a trial, it is equally plain that his opponents believe he should be disqualified without considering the Amnesty acts passed by Congress in 1872 and 1893, which nullified the effect of the Constitution’s Disqualification Clause for citizens who would otherwise be disqualified under Section Three. At the same time, Americans have noticed that Hillary Clinton, as recently as 2019, has asserted that she won the 2016 presidential election. Her contention never prompted a 14th Amendment effort to bar her from seeking the presidency. 

Nonetheless, Professor Steven Calabresi asserts that all that is necessary to disqualify Donald Trump is to refer to Webster’s 1828 Dictionary of American English. The dictionary defines “insurrection” as a “rising against civil or political authority, the open and active opposition of a number of persons to the execution of a law in a city or state…” In other words, Calabresi and his fellows assert that Section Three of the 14th Amendment is self-executing and, therefore, no trial is necessary because this select group has already found Donald Trump guilty as charged.

Nonetheless, all Americans should remain skeptical of this analysis, which refuses to countenance any possibility that Trump truly believed he won the 2020 election. Accordingly, he took action to defend a belief that many Americans share. The dangerous refusal to allow American voters to have the last word on former President Trump’s fitness for office suggests that the approach favored by legal and political elites is so contestable that it demands that we pretend that fashionable performance art is a substitute for sound constitutional analysis. Equally clear, this effort to bar voters from exercising their judgment regarding the leading Republican candidate in 2024 indicates that tyranny is at the heart of the modern experience as more and more political and legal elites seek to twist the words of the Constitution to “save democracy” from Donald Trump.

Harry G. Hutchison is a Senior Lecturing Fellow at Regent University. His latest book is Requiem for Reality: Critical Race Theocrats and Social Justice Dystopia.

Image: Ron Cogswell