A journal article forthcoming from the University of Pennsylvania Law Review from two conservative constitutional law experts asserts that Donald Trump's attempts to subvert the outcome of the 2020 presidential election disqualify him from running for president. They cite the 14th Amendment, section three, which was adopted post-Civil War following an attempt to reintroduce Confederate lawmakers to Congress. While some have argued the section applies only to the Civil War era secessionists, article authors William Baude and Michael S. Paulsen assert it is still in effect, meaning the disqualification of certain people is automatic, like age limits or residency requirements. We asked John Cioffi to weigh in. Cioffi is an associate professor of political science at UC Riverside and a faculty member of its Global Studies Program. He holds a law degree from Rutgers University School of Law-Newark, and is an expert on constitutional law and comparative law and regulation. 

Q: What was Congress' intent in passing the 14th Amendment?

Cioffi: The Civil War and thereafter the 14th Amendment resolved a fundamental Constitutional dispute regarding the character of the federal union created by the Constitution. The secessionists that formed the Confederacy and waged the Civil War against the Union viewed the Constitution and the federal government as a “compact” from which states were free to withdraw.

The opposing view was (and is) that the political union formed with the ratification of the Constitution is permanent and perpetual. States or other political subdivisions cannot unilaterally renounce membership and leave. (Arguably, departure from the federal union may be altered through Constitutional processes of amending the Constitution, or perhaps even other forms of political negotiation, but that is getting away from our subject.)

The Civil War resolved this dispute over the character of the union and Constitution in fact — on the battlefield. The 14th Amendment resolved it in law. And Section 3’s disqualification of those who have violated an oath to uphold the Constitution by participating in, or giving aid or comfort to, an insurrection or rebellion underscores the illegality of such actions.

Q: Do you agree with the authors’ assertion that the 14th Amendment was not intended to be specific to Civil War secessionists? 

Cioffi: Yes, I do. The language of the 14th Amendment is general and not restricted to the specific issues raised by slavery and the Civil War (or post-war Reconstruction). It is phrased to cover future breaches of oaths to uphold the Constitution.

Just as birthright citizenship and the civil rights recognized by other provisions of the amendment are not limited to and are not restricted to former slaves and their progeny, the prohibition clause is not limited to former Confederate officials and supporters. Neither the language of the Constitutional text, nor the history of its drafting and adoption supports such a narrow reading.

Q: Does the authors' assertion align with originalism, a conservative principal that seeks to align constitutional interpretation with the framers' intent?

Cioffi: I regard originalism as an empty and almost infinitely malleable approach to Constitutional interpretation that can and has been used to justify virtually any outcome a clever lawyer or judge seeks to advocate. To the extent that it merely directs our attention to historical contexts surrounding the drafting of particular constitutional provisions, a broad interpretation of Section 3 of the 14th Amendment covering Trump’s actions leading up to the January 6th insurrection is consistent with that provision’s history. 

Q: How do you respond to the counter view, expressed in this New York Times article, that the authors are taking a “ridiculously broad view” of the provision?

Cioffi: I regard this ridiculously narrow view of the provision as incorrect and indefensible.

Q: What process would have to take place for this to be applied — for Donald Trump to be excluded from running? A lawsuit? What’s the logical source of such a suit?

Cioffi: This is the big problem — or set of problems — raised by the prospect of disqualifying Trump from running for or taking office again. Any disqualification would have to be made by secretaries of state of other election officials at the state level, but would be immediately challenged in state and/or federal court.

Alternatively, private parties could conceivably bring actions in court to exclude Trump from the ballot by requesting an injunction. In either case, there would have be accelerated appeals, almost certainly with a fast track to the U.S. Supreme Court.

Second, the generality of Section 3 raises myriad practical problems of how it can or should be enforced. Despite some conflicts and ambiguities in 19th Century case law, the disqualification provision is what lawyers call “self-executing,” meaning that its requires no other legislation to carry out its effect. The only reference to subsequent congressional action is to provide a means of removing the disqualification from specific persons (implying that without removal the disqualification is automatically in effect).

However, this creates serious and potentially dangerous problems relating to enforcing the disqualification provision: 

•     Who is responsible for determining whether or not someone is disqualified from holding public office under Section 3? 
•     What if those officials, such as secretaries of state responsible for the running of elections, refuse to enforce the disqualification? Can the federal or state courts, or other governmental actors such as law enforcement officials, act to enforce it? If no one enforces disqualification, do the official acts of those who should have been disqualified have no legal effect?
•     Who determines whether an “insurrection or rebellion” has occurred to trigger Section 3’s application? Imagine if pro-Trump partisans start to argue that participation in Black Lives Matter protests qualify as participation in an insurrection or rebellion? One can easily envision how Section 3 could be weaponized politically in an opportunistic and unprincipled way.

Likewise, who determines if someone has participated in an insurrection or rebellion, or given aid or comfort to those who have? What is the burden of proof to impose or uphold a Section 3 disqualification? Should it be merely a preponderance of evidence, clear and convincing evidence, or proof beyond a reasonable doubt?

The current disputes over Trump’s role in the January 6 attack on Congress bring the importance of this issue into sharp relief. If he’s convicted of insurrection-related crimes, the issue is easily resolved, since a criminal conviction requires satisfaction of the highest burden of proof. But if the trials are delayed past November 2024, the determination of whether Trump is disqualified from returning to the presidency will have to be made without benefit of a criminal conviction. 

Extraordinarily high stakes in terms of political legitimacy attach to all these practical and legal issues connected with Section 3 disqualification in practice. The terms of the 14th Amendment provide no guidance as to how they should be resolved. But they must be resolved and, unfortunately, this must be done when the people of the United States are more bitterly divided than at any time since the Civil War itself.

The only thing worse than enforcing Section 3 of the 14th Amendment is to not enforce it.