A Constitutional Crisis of Confidence

Former U.S. President Donald Trump arrives to depart at Atlanta Hartsfield-Jackson International Airport after being booked at the Fulton County Jail on August 24, 2023, in Atlanta, Georgia. (Photo by Joe Raedle/Getty Images)

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. 

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