As the 2024 election approaches, Donald Trump stands strong as a front-runner in the Republican primaries, brushing off four indictments as quickly as he did two impeachments. However, a controversial theory is surfacing that seeks to invoke the 14th Amendment to disqualify Trump from office. This move could undermine the very fabric of our electoral system.
Legal Professors Michael Paulsen and Will Baude, backed by former Judge Michael Luttig and Professor Laurence Tribe, argue that Section 3 of the 14th Amendment disqualifies Trump from serving as President due to his alleged role in an “insurrection.” They believe anyone, “down to the lowest county election worker, has the right to strike Trump from the ballot.”
Why Twisting The 14th Amendment To Get Trump Won’t Hold Up In Courthttps://t.co/nPDMD2Yeey
— The Federalist (@FDRLST) August 25, 2023
But this theory stumbles on several fronts.
First, let’s look at what the 14th Amendment says: “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.”
Even if we agree that Section 3 could apply to a President, there’s a glaring issue: Was Trump involved in an insurrection?
As Jonathan Turley warns, barring Trump using this interpretation would be “the single most dangerous constitutional theory ever.” According to a 2022 CBS poll, nearly half of the American people don’t believe January 6 was an insurrection but rather a “protest gone too far.” Moreover, no federal authority has definitively found Trump guilty of insurrection. The Senate acquitted him, and the Justice Department hasn’t acted on any referral for prosecution on that charge.
The theory forwarded by Paulsen, Baude, Luttig, and Tribe doesn’t just ignore due process. It threatens to dismantle the Electoral College and allows for a chaotic, fractured election process. Imagine a situation where a state official could remove a candidate’s name from the ballot. Such a move would be counter to federalism principles and could jeopardize the uniformity and national character of our federal elections.
“If this academic view were correct, it would throw our electoral system into chaos,” the article in The Federalist states, echoing concerns that a single state or even a lone official could wield excessive power over the federal government. This runs contrary to significant legal precedents from the Supreme Court dating to the early 19th century, which sought to preserve a balance of power between state and federal authorities.
So, before we let academic theories become the tools to manipulate election outcomes, it’s worth remembering that the will of the voters still carries weight in this constitutional republic. To subvert that, based on a novel interpretation of the 14th Amendment, is not just risky; it’s an affront to the principles that hold our nation together.