Opinion: Why the 14th Amendment shouldn’t disqualify Trump

Editor’s Note: David Orentlicher is the Judge Jack and Lulu Lehman Professor at the William S. Boyd School of Law at University of Nevada, Las Vegas, where he specializes in constitutional law and health law. He also serves as a Democrat in the Nevada Assembly. The views expressed in this commentary are his own. View more opinion on CNN.

On Wednesday, six Colorado voters and the Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit in state court to prevent former President Donald Trump from running for the presidency next year. They argue that the Constitution’s Disqualification Clause in the 14th Amendment, barring those who’ve engaged in insurrection from holding office, prohibits Trump from appearing on the ballot. (Since the filing, Trump has asked to move the CREW challenge to federal court.)

It is understandable that Trump’s critics have mounted aggressive efforts to derail the former president’s candidacy. As his two impeachments and four indictments indicate, Trump is manifestly unfit to hold public office and should not become president again. (Trump denies all the charges.) But claims that the former president should be barred from running by the Disqualification Clause are misguided, and the arguments for disqualification would have troubling implications for other cases.

The Disqualification Clause was adopted as Section 3 of the 14th Amendment in 1868, and its primary purpose was to address a serious problem with elections in the Southern states. After the Civil War, Southern states sent to Congress men who had violated their earlier oaths to support the Constitution by serving in leadership roles in the Confederacy. Accordingly, Section 3 prohibits individuals from holding office if they previously took an oath to support the Constitution and then “engaged in insurrection or rebellion against” the United States.

The text of the ban is written in general terms, so it could apply to insurrections or rebellions other than the Civil War. But the drafters of the ban did not provide a definition of “insurrection,” and a key question today is what the word should apply to. Does the insurrection have to be as serious as the Confederacy’s secession, rebellion and civil war? Or should we interpret insurrection more broadly, such as playing a role in the violent assault on the US Capitol on January 6, 2021?

Those who would disqualify Trump certainly believe in an expansive application – but it’s one that goes too far.

According to CREW, we should understand insurrection as “an assemblage of persons” who use “force” while “acting with the purpose to oppose the continuing authority of the United States Constitution.” To arrive at this meaning, the organization draws on criminal insurrection statutes, academic analyses and court decisions, including that of a New Mexico trial court that last year disqualified a county commissioner because of his role in the January 6 attack on the Capitol.

The problem with the CREW definition is that it would not only apply to Trump and others who tried to overturn the 2020 election with the conduct that culminated in the January 6 violence but also to others who use force for any reason to resist governmental authority. For instance, as proponents of a definition of insurrection essentially the same as CREW’s acknowledge, abolitionists who tried to prevent fugitive slaves from being returned to their owners in the years before slaves were emancipated would qualify as insurrectionists.

In fact, in defining insurrection, CREW and the New Mexico trial court drew on an 1894 criminal case involving the prosecution of labor activists, including labor leader Eugene Debs, for their participation in a nationwide strike of railroad workers. The CREW definition also would have presumably applied to those who protested our country’s involvement in the Vietnam War by using force of any kind to disrupt the military draft.

The broad interpretations of the Disqualification Clause extend too far in another way – in terms of who can be ensnared by it. According to the CREW lawsuit and the New Mexico trial court, one need not personally use force to fall under the Disqualification Clause. Rather, one can engage in insurrection with “words in furtherance of the insurrection,” including words that “provoke, encourage or command others to engage in insurrectionary conduct.” This view of insurrection could in theory apply to an elected official who speaks sympathetically at a protest against an unjust law were the protest to unexpectedly turn violent.

A narrow definition of insurrection makes much more sense. We should not disqualify those who strongly protest unjust laws, nor should we disenfranchise the voters who want to re-elect officials who fight against unjust laws. Indeed, such candidates may be especially desirable as elected officials. Moreover, elected officials should not have to worry whether their support for those protesters would trigger their own disqualification from running for re-election.

At the same time, we don’t need to worry that a narrow definition might not go far enough for those who have undeniably engaged in insurrection. There are additional ways to prevent these people from holding public office, such as impeachment and prosecution for other crimes.

Courts have recently imposed sentences of 22 and 18 years on leaders of the Proud Boys and Oath Keepers, respectively, who played key roles in the January 6 violence. While Trump himself could still run for the presidency even if convicted in one or more of his four prosecutions, it would be very difficult to wage an effective campaign from a prison cell.

It is essential that Trump not escape accountability for his efforts to overturn the 2020 presidential election. But some of the many civil and criminal cases against him are the best way to do so. In responding to efforts to thwart Trump’s re-election, courts should not interpret the Constitution in ways that would disqualify for public service people who try to block the implementation of unjust laws.

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