As a bipartisan effort to bar former President Donald Trump, the current leading 2024 GOP candidate, from running again for the White House using a provision of the Constitution builds steam, the nation’s highest court may step in and decide the issue.
Section 3 of the 14th Amendment, ratified in 1868 in the aftermath of the nation’s destructive Civil War, states that any political leaders who betrayed their oaths of office and “engaged in insurrection or rebellion” against the U.S. is disqualified from holding federal office. The provision was largely directed at politicians and others who fought for or joined the Confederacy.
However, in an effort to heal the country, Congress passed two general amnesties for former Confederates in 1872 and 1898, with the latter amnesty declaring that the “disability imposed” by Section 3 “is hereby removed.”
But some legal professors and experts beg to differ, according to the Los Angeles Times.
“Despite its long slumber, Section 3 … is alive and in force,” and it may play a major role in next year’s election, say law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, both of whom are considered to be rock-solid conservatives.
The Times noted:
In a 126-page law review posted last month, they put a new focus on the Constitution’s response to the nation’s greatest insurrection and find significantly higher odds that the Supreme Court will be confronted with the claim that former President Trump, the Republican front-runner in polls for 2024, is legally disqualified from holding office.
As constitutional originalists, Baude and Paulsen believe the document’s terms should be interpreted in line with how they were understood at the time of their adoption. They say the word “insurrection” was understood to refer broadly to the concerted use of force or pressure to obstruct or overthrow the authority of the government.
“It sweeps in a broad range of conduct attacking the authority of the United States,” they wrote.
They also argue that the implementation of the disqualification clause is not contingent upon Congress or the Justice Department. Instead, they asserted that the authority lies in the hands of numerous state, county, and federal officials who have the ability to ascertain a candidate’s eligibility for holding office and decide whether their name can be included on the ballot, the Times reported.
“Taking Section 3 seriously means that its constitutional disqualifications from future state and federal office holding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others,” Baude and Paulsen argued further.
Their position could extend to barring sitting congressmen and congresswomen who have offered any support for Americans accused or convicted of taking part in the Jan. 6, 2021, riot at the U.S. Capitol Building.
Therein lies the rub: Many people have characterized what happened as an “insurrection,” while others have referred to it simply as a riot of the type the country experienced for months following the George Floyd murder in Minneapolis — including one that saw uniformed Secret Service and other federal officers come under siege outside the White House over the summer of 2020 while Trump was still in office.
Enter the U.S. Supreme Court.
The high court will consider whether or not to take the case, John Castro v. Donald Trump, during their Sept. 29 conference. A final decision on whether to accept it will be made by Oct. 9, according to the site 1945.
Other legal experts have repeatedly weighed in on the claim that Trump should be ineligible to hold federal office again under the Constitution.
One of them, Harvard Law School professor emeritus Alan Dershowitz, “noted that no formal mechanism exists to determine that a President of the United States of America participated in an ‘insurrection’ in a recent newsletter,” 1945 reported.