The Volokh Conspiracy
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Trump Is Disqualified from Being on Any Election Ballots
Section Three of the Fourteenth Amendment bans anyone from holding any federal office who has taken an oath to uphold the Constitution and who then breaks that oath by engaging in "insurrection or rebellion against the same." Donald J. Trump is precisely such a person.
Trump took the Presidential oath of office at noon on January 20, 2017. Then, knowing that he had lost the 2020 election, he engaged in an "insurrection" on January 6, 2021.
Trump tried to persuade Vice President Mike Pence and Members of Congress not to count certain state electoral votes, which had been validly cast. He lied to the American people for years that the election had been stolen and continues to repeat those lies even to the present day.
Section Three of the Fourteenth Amendment is self-enforcing. It is "the supreme Law of the Land" binding on each of the 50 State Secretaries of State and their subordinates who draw up primary or general election ballots.
State Secretaries of State and their subordinates may not list on their election ballots as candidates for President anyone who is not eligible to hold the office of President. To be eligible to hold the office of President, one must be: 1) a natural born Citizen; 2) thirty-five years or older; 3) a Resident of the United States for fourteen years; and 4) a person who has not broken their oath of office to support the Constitution by engaging "in insurrection or rebellion against the same."
No jury verdict is required to determine whether a candidate who seeks to run for the presidency on a primary or general election ballot is: a natural born citizen, who is 35 years of age, and fourteen years a resident of the United States. Likewise, no jury verdict or act of Congress is required to keep a Secretary of States and their subordinates from printing ballots with the name "Donald J. Trump" on them.
Keeping Trump off the ballot after his conduct on January 6, 2021 does not deprive him of life, liberty, or property in the same way that a criminal or a civil jury verdict could. It is a privilege to be eligible to run for President of the United States and that privilege does not extend to constitutional oath breakers who engage "in insurrection or rebellion against the same."
Webster's 1828 Dictionary of American English defines "insurrection" as follows:
INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.] 1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy, insurrection is however used with such latitude as to comprehend either sedition or rebellion.
Donald J. Trump in a nationally televised debate with President Biden refused to renounce the Proud Boys and said: "Proud Boys, stand back and stand by." Trump then falsely denied that he had lost the 2020 presidential election, urged his followers to assemble at noon on January 6, 2021 on the Ellipse outside the White House, and he then whipped a mob of some extremists, and many naïve conservatives, into a frenzy urging them to march on the Capitol as Congress was certifying the results of the 2020 presidential election. Trump told his followers: "We fight like hell. And if you don't fight like hell, you're not going to have a country anymore," he said.
Trump then watched the riot that he had had launched play out on national television without sending a Tweet or any other kind of similar message urging his supporters to behave peacefully. He did this even though one Tweet from him would have caused the insurrection he incited to stop—immediately ending, for example, the calls "to hang Mike Pence."
This meets the constitutional definition of "insurrection" even though so far Trump has not been criminally charged with inciting an insurrection. Remember that an insurrection is: "A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens." The Fourteenth Amendment bans either inciting an insurrection or a rebellion. Trump is guilty of inciting an insurrection, even if he may not have meant to cause a rebellion.
Some will no doubt say that the voters should be the judges of Trump's insurrection, but that it not what the Constitution says. The Constitution says that only Presidents who follow their oath of office, which includes taking care that the laws be faithfully executed, are eligible to be on the ballot and to run for re-election.
The Constitution is undemocratic in preventing non-Native born Americans who are under the age of 35 on January 20, 2025 from being on the ballot for President next year. But, we live in a constitutional republic, not an Athenian democracy of mob rule.
Chris Christie is legally injured by Donald Trump's name being on the ballot. They draw from some similar voters. Christie should sue, if necessary, to get Trump's name off the ballot. Then the Supreme Court can open the dictionary and tell us what we all already know—that Trump incited an insurrection and is disqualified from being on any primary or general election ballots next year.
UPDATE: For much more detail on these matters, see Will Baude's & Michael Stokes Paulsen's The Sweep and Force of Section Three, forthcoming in the University of Pennsylvania Law Review.
