The 14th Amendment, Trump and the Supreme Court

Like many observers, I have assumed that Trump was ultimately going to win the Republican nomination for president. I have constantly banged the drum of taking polls in political primaries with a grain of salt, but given the consistency and size of Trump’s lead, he is definitely the front-runner. Prior to last month I assumed that the biggest roadblock to Trump’s nomination was anti-Trump Republicans coalescing behind a candidate like DeSantis or Haley. A new potential roadblock has emerged — the 14th Amendment of the U.S. Constitution. Today I want to talk about the Constitution, insurrection, and the likely loser of Trump’s run for the White House.

The 14th Amendment is one of the Civil War Amendments, three amendments added to the Constitution in the aftermath of the Civil War. Most of the provisions in these amendments dealt with the abolition of slavery and the rights/privileges of newly freed African Americans. The 14th Amendment does include the following couple of sentences that have become relevant.

In the interest of space I have abridged the passage. “No person shall… hold any office… under the United States… 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. But Congress may by a vote of two-thirds of each House, remove such disability.” While this passage was originally written to bar Confederates from serving in government, it does not specify that. Instead it says that anyone who previously swore an oath to defend the Constitution and then participated in an insurrection cannot hold political office unless Congress authorizes it.

To put all this in plain English: if Trump, through either the Capitol riots or the fake elector scheme, was attempting an insurrection, then he is barred from holding public office under the 14th Amendment. This idea has been bouncing around among legal theorists for the past few years but it recently went from a theoretical problem to a practical problem when the Colorado Supreme Court ruled that Trump cannot appear on a ballot in the Colorado Republican primary. A few weeks later the Secretary of State of Maine concurred and barred Trump from the Maine Republican primary. The Maine decision is the bigger deal from an Electoral College perspective. Few prognosticators believe that Trump has much of a chance to win in Colorado, but that is not the case in Maine. Trump won an Electoral College vote in Maine in 2020, so the Maine decision could actually have an impact on the 2024 election.

What happens now? The Supreme Court of the United States has stepped in and agreed to review the case. They also have said that they are going to issue a ruling in an expedited manner so the issue is resolved before the end of the Republican primary. The good news for Trump supporters is that the court can overrule these state decisions and get Trump back on the ballot. The court has the power to interpret the law so it is up to them whether or not Trump actually committed insurrection three years ago. Most court watchers expect that Trump will be successful at the Supreme Court. The court has six members who were appointed by Republican Presidents, including three who were appointed by Trump himself. There is a potential downside at the Supreme Court. As of today Trump is only barred from the ballot in two states: Colorado and Maine. He could still win even if he only appeared on 48 ballots. If the Supreme Court rules that Trump did engage in insurrection, then that ruling applies to all 50 states and his run for the White House is officially over.

I want to stress that most court watchers predict that the Colorado Supreme Court will be overruled and Trump will be allowed to appear on ballots. While there is definitely a massive “fail case” for Trump at the Supreme Court most observers doubt that it will occur. One thing I am watching for is how the Supreme Court is perceived in the aftermath of this case. The court’s prestige took a massive hit after the last time they entered into presidential election controversies (the classic Bush v. Gore in 2000). Regardless of whatever the court rules in this case they are going to upset someone, probably by a great deal. The great irony of all this is that the Supreme Court is likely to be the political loser in this case regardless of what they decide.

David Searcy holds a master’s degree from Oklahoma State University and a PhD in political science from Southern Illinois University.