Can Trump be disqualified? The debate over the 14th Amendment.

David Scanlan, the New Hampshire secretary of state, had a busy end to his summer – and it wasn’t related to the August special election in Grafton County.

The subject was a different election: the 2024 presidential race and whether former U.S. President Donald Trump – the current front-runner for the Republican nomination – could be disqualified from the state ballot if his actions surrounding the Jan. 6 insurrection trigger Section 3 of the 14th Amendment. The question, which conservative legal circles began raising, now is being considered in several states, including Colorado, where a lawsuit to disqualify Mr. Trump was filed Wednesday by a watchdog group, and the battlegrounds of Arizona and Michigan, where a legal challenge was filed last week. 

The New Hampshire furor erupted last week when conservative talk show host Charlie Kirk falsely told listeners the state was trying to sideline Mr. Trump. Within days, Mr. Scanlan’s office had fielded hundreds of calls. Mr. Scanlan and New Hampshire Attorney General John Formella met and issued a joint statement.

Despite “misinformation,” the statement read, neither office has taken a position on the applicability of the amendment to the 2024 election.

“The Attorney General’s Office is now carefully reviewing the legal issues involved,” the statement concluded.

On Monday night, Mr. Trump dismissed the legal arguments as “election interference” in a post on his Truth Social network. He wrote that “almost all legal scholars have voiced opinions that the 14th Amendment has no legal basis or standing relative to the upcoming 2024 Presidential Election.”

It’s been over 150 years since someone has had to review these particular legal issues. Congress drafted the 14th Amendment, in part, to prevent former Confederate officials from holding office in state or federal government. Since Reconstruction, there’s been little use for it.

But then efforts to overturn the 2020 presidential election – culminating in the Jan. 6, 2021, storming of the Capitol – happened, and for the first time in history, a former president has been indicted on charges in both federal and state courts. Now legal and political minds across the country are debating whether Section 3 of the amendment is needed once more, or whether it’s best left in the history books.

At its core, the debate around Section 3 involves two arguments: Should someone who swore an oath to uphold the Constitution, then violated that oath, be allowed to make that same oath again? Should it ultimately be left to voters – not courts – to make that decision?

What is Section 3? And why does it exist?

Let’s start with the text. Section 3 reads:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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.”

The Confederacy surrendered in 1865, after a war that killed more than 620,000 people. Just a year later, former Confederates – many of whom had sworn oaths to uphold the Constitution prior to rebelling – were angling to regain power through elected office.

The 14th Amendment was ratified in 1868, and Union-loyal Republicans won significant majorities in Congress in subsequent elections. Section 3 was rarely invoked after 1872, when Congress passed a general amnesty for former Confederates, restoring their political rights.

But almost all legal experts agree that Section 3 is not a Civil War-specific feature of the Constitution.

“It’s been dormant. [But] it’s utterly implausible to say that it’s a dead letter, or moribund in the sense that it no longer has the force of law,” says Lawrence Solum, a professor at the University of Virginia School of Law and an expert on constitutional theory.

“There are ... issues that I think deserve really careful consideration,” he adds.

Have people been invoking Section 3?

Yes, both this year and in the run-up to the 2022 midterm elections.

The 2022 cases provided little legal clarity. A case against Madison Cawthorn, a member of Congress from North Carolina, became moot when he lost the election – though a federal appeals court did rule that Section 3 applied in his case. Cases against U.S. Rep. Marjorie Taylor Greene, a Georgia Republican, and Reps. Paul Gosar and Andy Biggs, both Arizona Republicans, were dismissed or dropped.

Couy Griffin, a county commissioner in New Mexico who joined the storming of the Capitol on Jan. 6, did not fare as well. Because he took “an oath to support the Constitution as a county official,” a state court ruled in 2022, “he is subject to disqualification under Section Three.” 

Mr. Griffin’s case is believed to be the first application of Section 3 since the Civil War. It has never been used to try and disqualify a presidential candidate, but it seems increasingly likely that America will break that constitutional ground before November 2024.

New Hampshire, which will hold the nation’s first presidential primary next year, has quickly become a proving ground of the 14th Amendment debate.

Bryant “Corky” Messner – a Trump-endorsed candidate for Senate in 2020 – met with Mr. Scanlan late last month and urged him to seek legal guidance, according to reports. And last week, a long-shot Republican presidential candidate from Texas filed a lawsuit in New Hampshire seeking to keep Mr. Trump off the ballot.

The candidate, attorney John Anthony Castro, has said he is filing similar lawsuits in Pennsylvania, Ohio, and Georgia. Meanwhile, the secretaries of state in Arizona and Michigan have said they’re also researching the 14th Amendment issue, The New York Times reported last week. A Michigan activist with a history of suing public figures filed a challenge last week, while in Florida, an Obama-appointed judge dismissed a 14th Amendment challenge due to a lack of standing.

Republican officials in New Hampshire have said they would challenge any effort to remove Mr. Trump, or any other qualified candidate, from the ballot. Mr. Trump’s campaign is also likely to appeal any attempts to remove him from a state ballot. State courts would hear the initial challenges, but the issue would likely move quickly to the U.S. Supreme Court.

“In the disqualification cases we’ve had so far, these people have gotten hearings; they’ve had rights to appeal,” says Mark Graber, a professor at the University of Maryland Francis King Carey School of Law.

“There will be chaos in the beginning,” says Professor Graber of the current round of lawsuits. “But there should be [more] organization as people figure out how to do this.”

What are the arguments?

In legal circles, the past few months have seen the 14th Amendment debate driven, surprisingly, by conservative scholars.

It kicked into high gear when constitutional law professors William Baude and Michael Stokes Paulsen – both members of The Federalist Society – published a law review article arguing that Section 3 disqualifies Mr. Trump from running for office. J. Michael Luttig, a former federal appeals court judge appointed by George H.W. Bush, and Laurence Tribe, a constitutional law professor at Harvard University, echoed that view.

A cloud of questions surrounds how Section 3 should be interpreted. Many of these questions have not been examined for over a century.

Is the office of the presidency even covered by Section 3, for example? It isn’t mentioned in the text, and scholars disagree over whether its authors, or the average person in 1868, would view it as being covered.

Some scholars suggest the broader “office ... under the United States” language shouldn’t be read to include the presidency. Other scholars, such as Gerald Magliocca at Indiana University, say there’s no way Congress or the public in 1868 would have understood “that Jefferson Davis could not be a Representative or a Senator but could be President.”

To answer that question, “you have to carefully investigate the meaning of the phrase ‘under the United States’ as of 1868,” says Professor Solum. But, he adds, “no one has done the historical work necessary to answer that question.”

There is similar confusion around the meaning of the section’s triggering phrases “engaged in insurrection or rebellion” and “given aid or comfort.” In Representative Greene’s case, a Georgia judge ruled that there was insufficient evidence that she had done anything to trigger the section.

Michael McConnell, a professor at Stanford Law School and a former federal appeals court judge, notes that while the U.S. Department of Justice has charged more than 1,100 Jan. 6 defendants – including, last month, Mr. Trump – none of them have been charged with insurrection. However, more than a dozen defendants have been convicted or pleaded guilty to the related charge of seditious conspiracy and sentenced to up to 22 years in prison.

The more important question, he says, “is whether the people should be deprived of being able to vote for the candidate of their choice when it appears.”

A counterargument is that the plain text of Section 3 requires that choice be taken away from voters, much like if it suddenly became clear that a candidate was 29 – and too young to run – or not a natural-born U.S. citizen, says Professor Graber, author of “Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War.”

And “notice what we haven’t taken out of the voters’ hands,” he adds. “Voters can still vote for MAGA. They can vote to restrict immigration; they can vote to ban abortion.

“They can vote for everything Donald Trump wants them to vote for – simply for a [candidate] that has not committed an insurrection against the United States.”

Where does that leave us now?

While Section 3 still has legal force, some scholars say its use in the 1860s and ’70s has limited precedential value for today’s controversies.

Most cases involved men who had been Confederate officials mere years before.

“It was the Civil War, so no one needed to debate the finer points of what an insurrection was,” says Professor McConnell.

For judges who may have to rule on Section 3 challenges now, the answers aren’t so clear, he adds, and “you’re [not] going to find a whole lot of history that answers a lot of questions.”

In other words, the 14th Amendment debate is pushing the U.S. into uncharted territory. Some scholars worry that if Section 3 challenges proliferate around the country – likely on the pressurized timeline that election cases often involve – the consequences could be severe for an already fragile American democracy.

Bluntly, having candidates on ballots in red states but not in blue is not going to increase Americans’ faith in elections.

“For the legitimacy of the election, [for] public acceptance of the results, that is a worry,” says Professor Solum.

The country should instead hope that Republican primary voters “spare the country the ordeal of renominating an insurrectionist president,” wrote David Frum in The Atlantic.

“This summer’s wish for a constitutional anti-Trump magic wand is an unfeasible, unhelpful fantasy,” he added.

But those who believe Mr. Trump should be disqualified argue that if the Constitution is to mean anything, the country has no choice but to pursue it.

The framers of the 14th Amendment believed that “the government should be composed only of people committed to legal ways of political change,” says Professor Graber. “If you participated in an insurrection, whether you are Jefferson Davis or Donald Trump, you don’t get to be the leader of a democratic government.”