Omar Bennett
The Constitution could bar Donald Trump from holding office again due to Section Three of the 14th Amendment, also known as the Disqualification Clause. This clause states that no person can hold political office if they have taken an oath to uphold the Constitution and then engaged in or aided an insurrection. This clause was designed to prevent former Confederate states from electing former Confederates to Congress after the Civil War. However, it has gained new relevance following the attack on the Capitol, which has been characterised as an insurrection. While some argue that Trump's involvement in the insurrection disqualifies him from office, others counter that excluding him from the ballot is extreme and undemocratic.
| Characteristics | Values |
|---|---|
| Section of the Constitution | Section Three of the 14th Amendment |
| Name of the Clause | Disqualification Clause |
| Who the Clause Applies to | Any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States |
| Who Supports the Application of the Clause to Trump | William Baude, Michael Stokes Paulsen, Donald K. Sherman |
| Who Opposes the Application of the Clause to Trump | Michael McConnell |
| Who Can Remove the Disability | A two-thirds majority of both houses of Congress |
| Number of Terms Trump Has Served | Two |
| Year of Trump's First Term | 2016 |
| Year Trump's Second Term Ends | 2024 |
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What You'll Learn
The 14th Amendment's Disqualification Clause
The Fourteenth Amendment's Disqualification Clause, also known as Section 3, prohibits any government officer who has taken an oath to defend the Constitution from holding any office, civil or military, if they engage in or aid an insurrection against the United States. This clause was added to the Constitution during the Reconstruction Era following the Civil War to prevent members of the Confederacy from regaining power.
The Disqualification Clause states that:
> 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.
The clause further states that only Congress can remove such a disability by a two-thirds majority vote in both houses. While the exact enforcement mechanism for the clause was not outlined, Congress created one through the Military Reconstruction Acts of 1867, which enforced Section 3 before the 14th Amendment was ratified. The Enforcement Act of 1870, also known as the "First Klu Klux Klan Act," further empowered federal prosecutors to remove people from office who were disqualified under Section 3.
In recent times, there have been arguments that former President Donald Trump falls under the Disqualification Clause due to his role in the Capitol attack, which has been identified as an insurrection by all three branches of the government. However, the U.S. Supreme Court has avoided addressing this issue directly, instead ruling that only Congress has the power to enforce the clause.
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Trump's role in the Capitol attack
On January 6, 2021, supporters of then-President Donald Trump stormed the United States Capitol in Washington, D.C. The attack disrupted a joint session of Congress convened to certify Joe Biden's victory in the 2020 presidential election. Trump's supporters sought to keep him in power by preventing the formalization of Biden's win. The attack was the culmination of a plan by Trump to overturn the election, and he was impeached by the House of Representatives for "incitement of insurrection."
Trump's specific role in the Capitol attack has been well-documented. In the lead-up to the attack, Trump pardoned retired US Army lieutenant general Michael Flynn, a prominent QAnon proponent who participated in the D.C. events on January 5. Trump also pardoned Roger Stone, who had longtime ties to the Proud Boys and Oath Keepers, a right-wing militia. Members of the Proud Boys were seen heading towards the Capitol during the attack.
On the day of the attack, Trump addressed his supporters at a rally, telling them to "fight like hell" and that if they didn't, they would not "have a country anymore." Trump's speech directly incited the mob to storm the Capitol, and he was impeached for this incitement. After the attack began, Trump initially tweeted that those at the Capitol were "great patriots." Later, he released a video telling the mob to go home. However, Trump withheld permission to deploy the National Guard until 4:32 pm, after the Capitol had already been breached.
Trump's actions and rhetoric leading up to and during the Capitol attack have been widely condemned. The bipartisan House select committee that investigated the incident concluded that the attack was a direct result of Trump's plan to overturn the election. Trump's role in fomenting the attack has led to discussions about using the Disqualification Clause (Section Three of the 14th Amendment) to bar him from holding public office in the future.
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The Constitution's democratic values
The Constitution of the United States is a profoundly democratic document, with values that promote and spread liberty, equality, economic opportunity, and security. The preamble to the Constitution acknowledges the role of government in "spreading the blessings of liberty to ourselves and our posterity". This includes the belief that a free and democratic society treats each person with equal concern and respect, and that individuals have a right to freedom of conscience, speech, and association.
The Constitution also provides for democratic resolution of legal issues, with judicial caution exercised to avoid pre-empting the "conversational" law-making process. This democratic constitutionalism ensures that the interpretation of the Constitution reflects American convictions and guides public opinion.
The democratic values of the Constitution are further demonstrated by its ability to adapt to modern challenges, such as privacy concerns arising from rapid technological changes. Americans engage in a democratic conversation to find pragmatic legal solutions while respecting the underlying values of the Constitution.
Additionally, the Constitution's democratic nature is evident in its emphasis on participatory government and free speech. It provides for a democratically elected Congress and President, who are responsible for creating federal courts and appointing federal judges. This ensures that the legal system serves the interests of all citizens, promoting values of humanity, dignity, equality, community, responsibility, and the common good.
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The Reconstruction Act of 1867
In 1867, Congress passed the Reconstruction Act, which set forth the requirements for the former Confederate states to regain entry into the Union. Each state had to draft a new constitution that would enfranchise freed slaves and abolish the Black Codes. These new constitutions would be approved by Congress. The Act also created five military districts in the South, each commanded by a general, who would serve as the highest authority for the region. The states were also required to ratify the Fourteenth Amendment to the Constitution. President Johnson vetoed these measures, but Congress overrode his vetoes.
The passage of the Reconstruction Act of 1867 was significant because it set the framework for the readmission of former Confederate states to the Union and increased the power of the federal government. It also ensured that the rights of African Americans in the South would be protected under the new state constitutions. The Act was a result of the disagreement between President Johnson and Congress over how to handle the South during Reconstruction, with Congress ultimately taking a more punitive approach.
In terms of whether the constitution bars former President Donald Trump from holding office again, legal scholars have argued that Section Three of the Fourteenth Amendment, also known as the Disqualification Clause, forbids Trump from serving in public office again due to his role in the Capitol insurrection on January 6, 2020. The Disqualification Clause bars any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States. All three branches of the government have identified the attack on the Capitol as an insurrection, and multiple federal judges and bipartisan majorities in the House and Senate have agreed. While Trump has not directly addressed this issue, he has stated that he is following the advice of his lawyers.
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The 22nd Amendment's prohibition
The 22nd Amendment of the US Constitution states that "No person shall be elected to the office of the President more than twice". This amendment was passed in 1947 and has been upheld ever since.
Despite the clear prohibition outlined in the 22nd Amendment, there has been speculation about former President Donald Trump's intentions to seek a third term. Trump has indicated that he does not plan to seek a third term, but he has also stated that he is not ruling it out entirely. Some of Trump's supporters have also expressed their desire for him to run again, despite the constitutional constraints.
In conclusion, the 22nd Amendment's prohibition on a third presidential term is a firm and longstanding part of the US Constitution. While there may be efforts to challenge or circumvent this prohibition, it remains a critical component of the country's democratic framework and a testament to the Founding Fathers' commitment to limiting executive power.
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Frequently asked questions
Yes, according to law professors William Baude and Michael Stokes Paulsen, Trump is constitutionally forbidden from serving in public office because of Section Three of the 14th Amendment, also known as the Disqualification Clause. This clause bars from office any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States.
The Disqualification Clause, or Section Three of the 14th Amendment, was designed to prevent former Confederate states from electing former Confederates to Congress after the Civil War. While it lay dormant for over a century, the January 6, 2021 attack on the Capitol has brought it back into the spotlight, as Trump's role in fomenting the attack is well-documented.
No, a third term for Trump is prohibited by the 22nd Amendment of the Constitution, which states that "No person shall be elected to the office of the President more than twice." While Trump has indicated that he does not plan to seek a third term and that he acknowledges the constitutional constraints, he has also stated that he does not know if it is constitutional to prevent him from doing so.
