Donald Trump Golfing at Bedminster in 2022

Here is a question that should be asked by every philosophy professor in their classrooms this term: Should Donald J. Trump be permanently disqualified from holding any office, civil or military, including the office of President?

I ask this question because of a growing debate about whether Section 3 of the Fourteenth Amendment to the U.S. Constitution should be used to disqualify the former president from running for the office of President again. Here is the text of Section 3:

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 facts about what happened at the U.S. Capitol Building on January 6, 2021, are one thing. The concepts used in Section 3 are quite another.  The question about whether Donald J. Trump should  be disqualified from being President can’t be answered until there is clarity about the meaning of “office,” “oath,” “support,” “Constitution,” “insurrection,” “rebellion,’ “engaging in insurrection or rebellion,” “aid,” “comfort,” “giving aid and comfort,” “enemies,” and “disability.” 

As I write these words we are now on the verge of witnessing one of the most consequential events in the history of American law.  There is a high probability that an executive or judicial officer of one or more states will soon announce that their state will not allow Donald J. Trump’s name to be placed on the state's November 2024 election ballot (Kovinsky and Riga). This will certainly trigger a trip to the U.S. Supreme Court and (perhaps) a decision on the meaning and application of Section 3. 

It is no accident that students who major in philosophy as undergraduates are not only among the largest groups admitted to law schools but they also rank among their best students. I believe this is largely because philosophy students are trained to think logically and critically.  Although philosophy is not informative about the world, it can definitely be informative about the meaning of legal and non-legal concepts used in Section 3.

How will the Supreme Court judges rule?  Will the conservative judges be faithful to the same theory of interpretation (‘originalism’) used in the Dobbs decision about abortion? ("A text in the U.S. Constitution should be interpreted only as it was understood at the time of its adopt

The framers of the 14th Amendment left no instructions for the enforcement of Section 3, although, in 1870, Congress did use its power under Section 5 ("The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article") to enforce Section 3 through the enactment of the First Ku Klux Clan Act (Zeitz). Notice, however, that Section 5 uses the word 'shall', not 'must'. Where does this leave the Supreme Court if it chooses to interpret Section 3?

Compare Section 3 with the Qualifications Clause in Article II, Section 1, Clause 5 ("The President must be a natural-born citizen, at least thirty-five years of age, and a resident of the United States for at least fourteen years."). Again, there are no instructions for enforcement. Now assume it is discovered that Donald Trump was born in Ruanda-Urundi. Several states are convinced by this discovery; although others are convinced that it is a fraud.

Again, how should the Supreme Court settle this dispute? Is there any relevant difference between the Qualifications Clause and Section 3 of the 14th Amendment that should call for enforcement of the latter but not the former? What do you think that a Court dominated by originalist judges would say about this conundrum (if it decides to say anything at all)?

These are questions that philosophy students can and should debate in the classroom as the history of American law unfolds before their very eyes.

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Here are six references that professors and students might want to consult:

• Baude and Paulson. “The Sweep and Force of Section 3”  University of Pennsylvania Law Review, vol 172 (forthcoming). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751&utm_source=substack&utm_medium=emEfoail

• Kovinsky and Riga. "What Key Election Officials Have to Say About Efforts to Disqualify Trump from the Ballot" Talking Points Memo, September 3, 2023. https://talkingpointsmemo.com/news/what-key-election-officials-have-to-say-about-efforts-to-disqualify-trump-from-the-ballot (select, cut and paste).

• Luttig and Tribe. "The Constitution Prohibits Trump from Ever Ruinning for President Again." The Atlantic. August 19, 2023. (Available only to subscribers. See if your library can help).

• NY Times. "Donald Trump Clung to ‘Birther’ Lie for Years, and Still Isn’t Apologetic." Sept 16, 2016. https://www.nytimes.com/2016/09/17/us/politics/donald-trump-obama-birther.html.

• Turley. “The Disqualification of Donald Trump and Other Legal Urban Legends” The Hill.  https://thehill.com/opinion/judiciary/4158573-the-disqualification-of-donald-trump-and-other-legal-urban-legends/

• Zeitz. “Legal Scholars Say the 14th Amendment Bars Trump from Office: Here’s What History Says” Politico Magazine. https://www.politico.com/news/magazine/2023/08/25/14th-amendment-insurrection-00112777.