• Show Notes

Dear Reader,

Our brief national dalliance with the Fourteenth Amendment is now officially over, though it was plain from the start that the effort to disqualify Donald Trump from the 2024 ballot was doomed to fail. It was a fascinating exercise, a wild law-school hypothetical sprung to life. But now the ironic final result is that a Constitutional provision meant to ban insurrectionists from holding office will provide Trump with fuel for his effort to win back the White House.  

You’ll be forgiven if you expected a different result. After all, we’ve endured months of cocksure guarantees from leading constitutional scholars that Colorado’s application of the Fourteenth Amendment against Trump was legally “unassailable in every single respect” – this from a retired judge who assured us not to worry because “I’ve been studying this specific question in great detail for the past three years. So, you know, I consider myself — personally — an expert on the question.” Other thought leaders offered up an amen chorus, disparaging any argument that the Fourteenth Amendment might not work as “extremely weak” and “just complete nonsense.” Turns out, you can’t bludgeon the Constitution into the ground with hyperbolic, conclusory rhetoric. 

In the end, Fourteenth Amendment advocates collectively amassed a record only slightly better than Trump himself (who lost 60 cases give or take, with only one minor win, in his effort to steal the 2020 election) and slightly worse than the 1899 Cleveland Spiders (who won 20 games and lost 134, setting a record for baseball futility that will never be matched). The Supreme Court’s ruling today was no outlier. Dozens of Fourteenth Amendment challenges to Trump had already been rejected in state and federal courts across the country. Only Colorado (by a 4-3 ruling from seven state justices, all appointed by Democratic governors), Illinois, and Maine (by unilateral finding of the secretary of state, who is neither a judge nor a lawyer) ever gave the Fourteenth Amendment any traction. 

Fourteenth Amendment challenges against Trump failed everywhere else, and now they’ve lost by unanimous ruling of the Supreme Court, which has held that it’s simply not up to the states to interpret and execute the Fourteenth Amendment on their own. The justices differed a bit on how exactly a federal candidate can be disqualified in the future, but the bottom-line vote was a stinging, unequivocal rejection of the state-by-state approach. It’s not often we see Justices Clarence Thomas and Samuel Alito on the same page as Justices Sonia Sotomayor and Elana Kagan, but the Fourteenth Amendment challenges were so obviously flawed that they ended up creating a cross-ideological consensus. 

The fundamental problem with the Fourteenth Amendment challenges is that the issue has never been about whether Trump did or did not engage in insurrection. It’s about who gets to decide, and how. Pro-disqualification advocates insisted it was up to the individual states, though they could never quite articulate exactly who in each state gets to decide (Legislatures? Secretaries of State? Judges? Juries?) and by what specific process or burden of proof. The proposed solution was essentially this: let’s have each state make up its own process on the fly and then apply it retroactively to Trump – an approach which, if accepted, would violate a different section of the Fourteenth Amendment, the one about Due Process

The Supreme Court has now made clear what was already apparent on the face of the Constitution itself: without some specific enabling act of Congress, it’s not up to the states. This shouldn’t have been some sort of mystery. It’s right there in the Fourteenth Amendment’s plain text: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” At any point since the Fourteenth Amendment’s ratification in 1868, Congress could have passed a law saying, in essence: we’ll let the states decide, so long as they use reasonably fair procedures. But it’s been 150-plus years now, and Congress has done no such thing. Unless and until that changes, the Fourteenth Amendment will remain a dusty, non-functional curiosity.  

The Constitutional ban on insurrectionists holding office is a perfectly sound – necessary, even – policy concept. And, by any common sense application, Trump violated the clause. But the process issues that ultimately sank the effort to ban Trump from the ballot were apparent all along. The resources, credibility, and political capital that were poured into the Fourteenth Amendment disqualification campaign would’ve been better spent trying to get Congress to do its job, to protect against future insurrectionists re-taking office. 

Prominent Democrats including Gavin Newsom, Jocelyn Benson, and Dean Phillips publicly recognized that the effort to remove Trump from the ballot through the courts under the Fourteenth Amendment was ill-conceived and would likely backfire. Other Democrats conspicuously dodged the issue, steering clear of the impending trainwreck. Even Republican Georgia Secretary of State Brad Raffensperger – the guy on the receiving end of Trump’s infamous “I just want to find 11,780 votes” phone call – opposed Trump’s disqualification. Now the results are in, and Trump will reap the political windfall. 

Trump’s on the 2024 ballot, just as he would’ve been without the Fourteenth Amendment detour. He and his supporters surely will rally around a failed effort by a bunch of Northeastern, elitist law professor-types to use the courts to deny the American voters a choice and to take out the Republican frontrunner. This is one of Trump’s unique political gifts: he inspires such visceral hatred in his opponents that he provokes them to self-destruct.

 Stay Informed,