A Constitutional Crisis of Confidence

The 14th Amendment to the Constitution says that “No person … having previously taken an oath … to support the Constitution of the United States, [having] engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” is permitted to “hold any office, civil or military, under the United States.”

You may already be familiar with the language of this Reconstruction-era amendment  because of the growing movement to use that language to try to keep former President Donald Trump off the ballot next year, or, if that fails, to seek to have the Supreme Court bar him from taking office.

Legal scholars left and right have cropped up to say that not only does the amendment pertain to Trump for his efforts to subvert the constitutionally prescribed transfer of power in 2021, but that the language is “self-enforcing,” by which they mean that no additional legislation is needed to find Trump ineligible. A secretary of state could simply decree that the former president does not qualify—the same as if he was not 35 years old or a natural-born citizen—and deny his application.

But in the practical sense, the amendment is not self-enforcing at all. People—elections officials, lawyers, plaintiffs, judges—would have to do the enforcing. 

It’s already been successfully put to use by a left-wing pressure group that persuaded a federal judge in New Mexico to kick a county commissioner out of office for his active part in the January 6 riot. Similar efforts have failed against members of Congress who may have abetted the sacking of the Capitol but were not part of the mob. But the question seems to be very much open.

In New Hampshire, for example, there is a serious effort afoot from the right to disqualify Trump from the ballot for the first-in-the-nation primary.

My colleagues at The Dispatch, Jonah Goldberg and Kevin Williamson, have already written usefully and with typical sagacity about the debate, and Sarah Isgur and David French have plumbed the inky depths of the legal question. I certainly don’t have anything to add on the judicial merits.

What I do wonder, though, is about the intensity and origin of the impulse to seek to disqualify rather than defeat Trump, who, despite his supremacy in polls  for the Republican nomination, now doesn’t look like a very good bet to ever return to the White House.

There’s history: Since the birth of our two-party system nearly 196 years ago, the major parties have nominated 68 candidates for president. Seven times, one of the parties nominated a man who had previously lost a general election. Only twice did they win the presidency: Grover Cleveland in 1892 and Richard Nixon in 1968.

Out of 96 presidential tickets since 1828, the success of just two comeback candidates suggests a strong distaste for losers. There’s also the fact that in the past 100 years, of the 17 times a sitting president was on the ballot, the incumbent won 12 times.

But especially because Trump is himself the author of one of the most stunning upsets of all time—and his general disdain for tradition and precedent—we might arch an eyebrow at historical trends. Maybe the orange swan will swim past the channel markers yet again.

So let’s look at the electorate as it is today. A new poll from the Associated Press and the National Opinion Research Center got a great deal of attention for confirming what any sentient person could observe: Americans think Biden is too old and Trump too morally bankrupt for either of them to be seeking another term. 

Voters are deeply bummed out by the prospect of a Trump-Biden rematch. Only 24 percent of respondents said they wanted to see Biden run again, even worse than the woeful 30 percent who said the same of the current Republican frontrunner.

But if you dig a little deeper, you’ll see that the general estimation of the men is very different. A majority of Americans (52 percent) have an unfavorable view of Biden, including 37 percent who have a very unfavorable view of the incumbent. But Trump is in a different league: 62 percent have an unfavorable view, including a crippling 51 percent who hold very negative views of the former president. 

Most troubling for Trump, though, is on the other side of the favorability question. For all the talk of his die-hard voters, Trump’s share of support from those with very favorable views is almost identical to the incumbent, 19 percent for Trump, 18 percent for Biden. The MAGA brigade is only about as big as Dark Brandon’s posse. That explains why in a hypothetical head-to-head general election matchup, Biden is 9 points ahead, 45 percent to 36 percent. 

To win, either man would need the votes of lots of Americans who hold them in low esteem, but more than 60 percent of Americans have viewed Trump negatively in every iteration of the AP poll since he left office. The former president has a very low ceiling for his potential support, while Biden has considerably more headroom. The 14-point gap between them on “very unfavorable” estimations represents the essence of Biden’s advantage. For hold-your-nose voters, Biden’s the one.

If Republicans could manage to unite around a different nominee, Biden’s chances of being the sixth incumbent in a century to be turned out would be quite significant. After all, Jimmy Carter beat Gerald Ford and then Ronald Reagan beat Carter under very similar circumstances four decades ago. But a Trump retread? It certainly could happen, but there is not any reason right now to think that it is likely to happen. The boring truth is that Biden, weak as he is, clearly remains the person most likely to take the oath of office on January 20, 2025.

Rumsfeldian unknown unknowns could change that calculus in Trump’s favor—especially with an incumbent so obviously feeble and the threat of economic recession still real—they could also work against Trump. There have been catastrophic collapses by frontrunners in the past, and while experience teaches us that parties tend to unite around frontrunners, Trump’s swan could swim in the opposite direction, too.

But the possibility of defeating “the boss” in the primaries is seen as remote. Democrats consider that to be a very good thing for all of the reasons listed above. But for the small, durable number of Republicans opposed to Trump, the feelings of doom are deepening. 

And that’s what’s driving the discussion among conservatives about the 14th Amendment.

There are lots of good arguments why a strict reading of the Constitution could forbid Trump from taking office again. I can even imagine a scenario in which some secretaries of state keep Trump off of the primary ballot, and maybe even that the Supreme Court would uphold their decisions. 

What I don’t see though, is a scenario in which that alone would prevent Republicans from nominating him again. Indeed, I can imagine how that turn of events would shatter the Republican Party, with one faction looking to throw out the rules and choose delegates by another means to give Trump the nod and another faction trying to keep the existing rules in place. In such a schism, Trump would be the nominee of at least one of the resulting denominations.

Even if the Supreme Court went farther than just affirming the rights of elections officials to limit ballot access and ruled Trump ineligible for office, an outcome that still to me seems far-fetched, I could still see much of the party rally to their man against the “rigged system.” What could be a greater stick-it-to-the man move than choosing an ineligible nominee?

The hopes on the right that the 14th Amendment can deliver the Republican Party from the clutches of Trumpism sound a lot like those of progressive Democrats who have argued in the past that another section of that amendment—the one about how “the validity of the public debt of the United States … shall not be questioned”—could get them off the hook for negotiating an increase in the federal borrowing limit. 

It may soften the pain of thinking of unhappy realities—in this case the coming civil war in the GOP—but it can’t prevent them.