Framers would likely agree with disqualifying Trump under 14th Amendment

Opinion editor's note: Star Tribune Opinion publishes a mix of national and local commentaries online and in print each day. To contribute, click here.

•••

For additional context on the subject of this article, consider "Trying to disqualify Trump is lawlessness masquerading as legality," by George F. Will of the Washington Post. (The Post doesn't allow other newspapers to republish its syndicated columnists online.)

•••

At least four eminent legal scholars have recently stirred controversy by arguing that Donald Trump — indicted, among other things, on federal and state charges related to the Jan. 6, 2021, insurrection and attempted soft coup to illegally overturn the results of the 2020 election and remain in power — could be disqualified from the presidential office again under Section 3 of the post-Civil War 14th Amendment to the Constitution. The amendment bars people from holding federal or state offices if they swore an oath to support the Constitution but then engaged in insurrection or rebellion against that framework or gave aid or comfort to the enemies thereof.

The scholars have argued that the provision is self-enforcing — that is, that Trump could be thrown off state ballots for the 2024 election because he engaged in the Jan. 6 insurrection and coup and also gave aid and comfort to other insurrectionists involved in storming the Capitol to attempt to interfere with congressional approval of the 2020 election results, and thus the hallowed legal transfer of government power to a newly elected president.

The four legal scholars include three conservatives and one progressive, the most prominent of which are conservative retired judge Michael Luttig and eminent progressive Harvard law professor Lawrence Tribe. [Star Tribune opinion editor's note: The scholars also include University of St. Thomas law Prof. Michael Stokes Paulsen, whose draft article, co-written with William Baude of the University of Chicago Law School, can be read here.] I write in support of the scholars' position but from a historical and systemic perspective rather than a legal one.

The scholars' argument has raised some eyebrows among many Republican populists and even some Democrats. One of the major arguments against their position is that disqualifying Trump in this way is "undemocratic" and that for the purposes of political legitimacy, it would be better to just beat Trump at the ballot box in November 2024.

In a free country, one certainly needs to be careful when disqualifying candidates from running for office — note how authoritarian countries (such as Iran and Pakistan) try to disqualify candidates from elections who might give the regime in power a run for its money at the polls or even defeat it.

But a republican (small "r") government should have the capability to defend itself against unconstitutional insurrections or rebellions that threaten its very survival. The threat of Donald Trump, who engaged in such behavior and aided and abetted others, taking office again is likely the greatest internal threat to the American republic in the country's history.

Even the Confederate states during the Civil War, despite their desire to perpetuate the monstrous and heinous institution of slavery, never tried to overthrow or extinguish the American Constitution, as Trump has done; they fought instead to go their own way and create a separate, but ignominious, slaveholding country.

In contrast, from Trump's abominable actions on Jan. 6 and irresponsible rhetoric — including that he wants to "terminate" (not just suspend) the Constitution, intends to take retribution and even arrest political opponents, and has claimed that Article II of the Constitution allows him to do anything he pleases — we can gleam that his authoritarian populist (not conservative) first term will likely pale in comparison to the wreckage he will bring to the American republic if he is able to hold the presidency again.

Admittedly, disqualifying a candidate might seem "undemocratic" to an American public that has been schooled by politicians to revere democracy, but several practical and historical points should be made.

First, we don't have national elections for any federal office in America (even the presidential election is usually determined by a state-by-state Electoral College system), and thus state officials logically have been given primary responsibility for conducting American elections. State officials regularly make decisions, using appropriate due process procedures, on ballot access for candidates to comply with state and federal qualification requirements. Such officials should just be allowed to do their jobs to determine whether Trump is eligible to be on the ballot, given the ample evidence put forth by the congressional Jan. 6 committee and findings in court cases related to Jan. 6 that Trump ran afoul of the insurrection provision.

It may be more of a judgment call for these state officials than just determining whether Trump is 35 years old and a natural born citizen, which are other requirements to hold the presidency, but assessing candidate qualifications for ballot access is in their job descriptions and they should be allowed to do it. (And if Trump is not now disqualified, gets elected again in 2024, and then runs as an incumbent yet again in 2028 — again essentially refusing to leave office regardless of the outcome — these same state officials will need to make a more clear-cut decision to disqualify him under the two-time presidential election limit of the 22nd Amendment.)

The modern Republican Party has always advocated for "states' rights" and concomitantly that the federal courts should exhibit judicial restraint; this process comports nicely with those principles. However, the author is not naïve enough to think that an issue as important as this one will not eventually make its way to the U.S. Supreme Court. But to get there, it should go through these state processes and courts first.

More important, although just letting Trump run and again rolling the dice about whether he will hold office might be more democratic, the historical newsflash is that the Constitution's framers were suspicious of democracy. The tripartite American national government was never set up to be as efficient as the British (or any other) parliamentary system; its main purpose was to prevent tyranny — of an overweening executive or of a permanent majority faction.

The framers admired the Roman Republic rather than the direct democracy of ancient Greece. Thus, in their unusual written Constitution, they created many checks and balances to contain tyranny by an aggrandizing individual or any permanent majority group: for example, a bicameral Congress; an independent executive and judiciary to act primarily as a check on what they thought would be the dominant legislative branch; a federalist structure that would retain powerful state governments, and a Bill of Rights that would ensure that a tyrannical executive or majoritarian faction could not crush the individual rights of minority interests or populations.

Continuing in that spirit, Section 3 of the 14th Amendment can be seen, in the wake of the massive Civil War, as another important check to shore up the defenses of republican government from unconstitutional attempts to subvert it through unconstitutional means.

And tyranny is knocking at the American door. The potent combination of the rise of the imperial presidency — having usurped power from the other branches of government and the states for more than a century and distorted the framers' vision of a more equal division of power vertically and horizontally throughout government — and an authoritarian 2024 candidate who has already tried to lead, aid and abet an insurrection and coup against the American Constitution requires the republic to invoke Section 3 of the 14th Amendment as the only last-ditch failsafe defense against the very real potential for the demagogic and autocratic demise of a republic that has lasted 235 years.

Ivan Eland is senior fellow with the Independent Institute — a nonprofit, nonpartisan public-policy research and educational organization — and author of several books, including, "Eleven Presidents: Promises vs. Results in Achieving Limited Government," and "War the Rogue Presidency: Restoring the Republic after Congressional Failure." This article was distributed by the Tribune Content Agency.