The Foolishness of Invoking the Fourteenth Amendment to Stop Trump

You’ve heard some objections, but here are some more

The U.S. Constitution, stock photo (Getty Images; Credit:Aleksandar Nakic)

I’ve made clear my opposition to efforts at removing Donald Trump’s name from presidential ballots on the grounds that his attempts to keep himself in power following his loss in the 2020 election violate Section 3 of the 14th Amendment. That section bars from holding office anyone “engaged in insurrection or rebellion against” the United States, or who had “given aid or comfort to the enemies thereof.”

This week, David Frum joined Ross Douthat and myself in standing foursquare against the 14th Amendment gambit. Whereas Douthat and I have focused on different aspects of the abstract question of whether such a push to debar Trump from becoming president would be viewed as legitimate by anyone other than Democrats and a small number of fervently anti-Trump conservatives (it would not), Frum highlights more practical considerations.

Who will enforce a reactivated Section 3? Wouldn’t it hand the 2024 election to Joe Biden? And how would Republicans react, both in the immediate aftermath of such an election, and in later contests, where they will almost certainly move to get Democrats stricken from ballots based on an elastic definition of “insurrection” and “rebellion”? And what if a conservative Supreme Court majority intervenes to prevent the reactivation of Section 3? Wouldn’t that further undermine the legitimacy of the judicial branch of government in the eyes of Democrats?

Those are all good questions, and Frum does an excellent job of thinking through many of the ways our deepening civic conflicts would be worsened by pursuing this constitutional path to ridding us of Trump.

In this post, I want to do something similar, but from a somewhat different starting point. Frum assumes that Trump would be stricken from ballots in swing states, which would hand the election to Biden, provoking ire among Republicans. That is certainly one possibility. But I think it’s less likely than another series of events that could have equally bad consequences.

The Most Likely Fourteenth Amendment Scenario