Lawyers who represent the government in federal court face a never-ending and creative supply of First and 14th Amendment cases. Like overcooked spaghetti flung on a wall, most such Constitutional claims don’t stick. They hit a well-oiled wall of federal case law and slide right off.
Applying the insurrection clause of the 14th Amendment to bar Trump’s 2024 candidacy presents the opposite scenario, with virtually no prior cases to follow. 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 14th 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 any less potent, or its historical imperative any less compelling. If anything, they make its application 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 14th 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 14th 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. Art. III requires disputes between opposing interests over a dispute that is real, factual, and concrete; 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.
Originalists on the high court should love this
Multiple cases challenging Trump’s candidacy under the 14th Amendment are winding their way through the courts. 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 Jan. 6 mob that attacked the U.S. capital.
Although the judge punted on the applicability of the 14th 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 14th Amendment was adopted.
After the Civil War, despite their loss, former slave owners continued to brutalize and terrify emancipated black Americans. They engaged in brutal 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 slavers - claimed the right to freely elect former Confederate leaders who would advance their immoral interests.
Setting aside the Amnesty period, the 14th Amendment sought to protect a raw and reeling democracy by prohibiting politically violent agitators - insurrectionists - from holding federal office. The 14th Amendment also barred states from making or enforcing laws that curtailed the federal rights of newly freed citizens.
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 plain common sense. Then, as now, it is key to elect 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
The orchestration of violence in 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. Trump’s attempts to disenfranchise Biden supporters to keep himself in power were no different from secessionists’ attempts to disenfranchise Lincoln supporters.
For now, the nightmare of an ascending and lawless insurrectionist re-taking power by force is real. Section 3’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.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.