The insurrection clause has waited 150 years for the Trump test

Lawyers who represent the government in federal court face a never-ending supply of 1^st and 14^th Amendment cases from creative plaintiffs. Most such Constitutional claims don’t stick. They hit a well-oiled wall of federal case law and slid right off. 

Applying the insurrection clause of the 14^th Amendment to bar Trump’s 2024 candidacy presents the opposite scenario. There exists virtually no prior cases to follow. In fact, critics who reject Trump’s disqualification under this clause lean almost entirely on the lack of legal precedent. 

Other than Trump, in the history of the United States, a defeated president has never tried to stop the peaceful transfer of power. In over 150 years following the 14^th Amendment’s adoption, there was never a set of similar facts that could have triggered the insurrectionist clause. 

Lack of precedent is irrelevant 

Lack of prior similar cases doesn’t render Section 3 of the 14^th Amendment any less potent, or its historical imperative any less compelling. If anything, its application is even more urgent as the same violent insurrectionist forces that tore the nation apart in the Civil War are back at it today. 

Section 3 of the 14^th Amendment states plainly that, “No person shall … hold (federal) office… who, having previously taken an oath… 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…”

It’s true that despite its passage more than 150 years ago, it has never been used to bar a candidate seeking the presidency, but this is a specious legal argument. Anyone professing an informed opinion on the 14^th Amendment also understands the “case and controversy” requirement, which would have made such a case legally impossible in the absence of an insurrectionist actively seeking the presidency.

Written into the Constitution’s early structure, Article III prohibits courts from hearing anything except actual cases and controversies. It requires cases between opposing interests over a dispute that is real, factual, and concrete. So cases cannot be hypothetical. Courts require real cases in controversy in part because ruling on hypotheticals is tantamount to setting policy, a violation of separation of powers as established in 1790. 

Trump’s counsel argues that his candidacy can’t be barred based on a Constitutional clause that has been used only a handful of times in 150 years, emphasizing that, “(Challengers) are asking this court to do something that’s never been done in the history of the United States.” It bears repeating that since the 14^th Amendment’s adoption in 1866, a defeated president has never fomented a violent insurrection against the U.S. capital to impede the counting of electoral votes, or pressured state officials to violate the Constitution by lying about the election results, nor, before Trump, has any major party candidate seeking the presidency openly embraced political violence against government officials.

So, a similar 14^th Amendment challenge could not have been brought prior to Trump because without an actual insurrectionist actually seeking the presidency, there was no Art. III case in controversy.

Originalists on the high court should love this

Multiple cases challenging Trump’s candidacy under the 14^th Amendment are winding their way through the courts now. In a recent Colorado case, the presiding judge concluded from the evidence that Trump had, indeed, engaged in insurrection, as that term was originally understood, when he assembled and incited the January 6 mob that attacked the U.S. capital. 

Although the judge punted on the applicability of the 14^th Amendment, her evidentiary ruling finding insurrection is most significant, because it will both guide the case on appeal, and be referenced as a judicial finding in similar cases. 

When the case gets to SCOTUS, the originalist majority should salivate over the chance to illuminate the underlying historical context in which the 14^th Amendment was adopted. 

After the Civil War, despite their loss, former slave owners continued to brutalize and terrify emancipated Black Americans. They engaged in horrific political violence, and did whatever they could to keep freedmen from exercising their new rights. Even after losing the war, wealthy white Southerners-many of them enslavers- claimed the right to freely elect former Confederate leaders who would advance their immoral interests.

Setting aside the amnesty period, the 14^th Amendment sought to protect a raw and reeling democracy by prohibiting politically violent agitators- insurrectionists- from holding federal office. Disqualifying insurrectionists from holding federal office was a way to keep wealthy agitators from fomenting some variation of war all over again.

The constitutional disqualification of government officials who violate their oath of office is common sense; if they don’t uphold the Constitution, to what are they sworn? Then, as now, disqualification is key to electing ethical candidates who can be trusted to uphold the Constitution rather than divide the nation for personal gain, which brings us back to Trump.

Section 3 meets its intended nemesis

Orchestration of violence at the U.S. capital on Jan. 6 was, at its core, Trump’s effort to disenfranchise the more than 81 million Americans who voted for Joe Biden, just as secessionists attempted to disenfranchise Lincoln supporters.

Trump’s legal pleadings argue that he is immune from prosecution for official actions he took while in office, and that everything he did, including on Jan. 6, was an official action. A wizard at projection, he calls 14^th Amendment challenges “election interference.” He also calls the business fraud case against him election interference; ditto, the election interference case itself. Trump claims that all the various criminal charges against him, including the hush money case, the classified federal documents case, the Jan. 6 insurrection case, and the “find me 11,000 votes” in Georgia case, are election interference. If the war in Ukraine somehow breaks to Biden’s credit, that will be election interference as well.

For now, the nightmare of an ascending and lawless insurrectionist re-taking power by force is real. George Washington warned us that “cunning, ambitious, and unprincipled men (who) subvert the power of the people and usurp for themselves the reins of government” would be fatal to the nation.  

Section 3 of the 14^th Amendment’s silence for the past 150 years is a testament to its strength, not its weakness. After its adoption, no violent insurrectionist usurper dared seek the presidency, until Trump. 

Section 3 has lain silent and watchful, its potency simmering for 150 years, waiting for the beast it was meant to slay to raise his ugly head.