The 14th Amendment was passed just after the Civil War and has a provision that no one ever thought would be relevant any more:
“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.”
This is now an issue because many groups are fighting to keep Trump off the ballot for this very reason.
It’s clear that he has “engaged in insurrection” — and if you don’t believe that, just stop reading now because you’re a hopeless cause. But that isn’t the end of the discussion. There are lots of unanswered questions, and decisions haven’t been consistent.
The Supreme Court in Colorado recently said that Trump would be removed from the primary ballots because of this, but they acknowledged that the US Supreme Court will ultimately make that decision — something that doesn’t fill a lot of us with hope, especially given that one of the chief architects of the insurrection is the wife of one of the justices.
But this certainly raises some interesting legal questions, such as:
Does this apply to the President? The amendment doesn’t say specifically, although you’d have to ask why would they leave the President out? Is the President an “office of the United States”? If so, then the President is included. But we don’t know for sure, and as you can guess, Trump’s lawyers are doing everything they can to argue this loophole.
Can the Courts tell parties how they can run their primaries? Parties set their own primaries and primaries aren’t mentioned anywhere in the Constitution. Maybe because the states still run the primaries (state employees are the ones who sit at the polls, after all) the argument is that therefore the states can regulate the primaries — but that is also not clear.
Who decides someone is an insurrectionist? As I said before (and as Biden said today), it’s blatantly obvious that Trump was trying to illegally overturn an election. He clearly fits the profile. But he has not yet been found guilty of that. Perhaps we need Congress to officially declare him as an insurrectionist.
Who defines what it means to “engage in insurrection”? The Colorado Supreme Court pointed out that Trump gave a speech and encouraged the actions, did nothing to stop them, and hasn’t backed down since. Giving a speech to encourage violence is not protected under the 1st Amendment no matter what the idiots who Trump hires as lawyers say. But who knows what the Supreme Court will say?
Remember, the bottom line is this (as I emphasized in my book about the Constitution): The meaning of that document is whatever the current Supreme Court says. A different court could read the exact same document and come to a completely opposite decision (see Roe v. Wade).
So to get the answers to these questions, we’ll just have to wait and see what our corrupt, awful Supreme Court majority of members who were appointed by Presidents who lost the popular vote have to say about it.
I am not optimistic, no matter how clear it seems to me.
ventrellaquest.com 
This is clearly one of those annoying splits between the Denotation of the words (in this case, law), vs the Connotation of the words.
(Or better said – what exactly the writers were thinking, intended or meant when they were putting their words down on paper.)
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It might be the optimist in me – granted he’s a minuscule, if not microscopic thing – but I am having some hope that those on the supreme court might just hold enough care for the country itself to shut him down. They got what they wanted from him (three appointed by him) and they are in a lifetime appointed position that seems to have less ways to remove them than the President. Maybe they’ll pull a page from his own book and simply discard him now that his usefulness is over.
I want to believe they see the writing on the wall. Maybe they believe they’ll overturn whatever rulings are put forth against him – although they have declined to hear a few different things that were sent their way already. But this would be a way to help bring the GOP back a bit more towards center.
That’s assuming of course if they’re decisions are made based on party instead of neutral interpretation of the constitution. Which, like you, I don’t hold a lot of faith in. But there is that small spark of hope. And hope dies last.
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The Colorado Supreme Court did address the question of whether the President is an officer, and regarded determining whether Trump was an insurrectionist as similar to determining whether he is a citizen, a matter of fact about whether he qualifies or is disqualified.
But of course SCOTUS could take another line entirely, as you say. I fear they may render Section 3 inoperative in practical terms, as they seem to have done with the emoluments clauses.
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Yes indeed. The Supremes could overrule Colorado’s interpretation of the Constitution.
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Beyond the legal arguments, trying to ‘cancel’ Trump in this way is profoundly stupid. It won’t prevent him from getting on the ballot (or enough ballots elsewhere, at least), it feeds into his insane conspiratorial narratives and it makes a mockery of “democracy.”
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Doing the right thing is not always the same as doing the politically right thing. I don’t think this will change anyone’s mind — if you’re not already a Trumpie, this isn’t going to turn you into one. I think his support is limited.
The problem is that Biden’s is dropping, but I expect at election time, all the people who had supported Biden before but are now disappointed with him aren’t going to suddenly chose Trump as an alternative.
I still wish he’d not run for re-election, though.
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