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Banning Trump

While historians view the US Constitution's insurrection clause as firmly rooted in the conditions of the post-Civil War era, legal scholars and lawsuits seeking to remove Donald Trump from the ballot in 2024 choose to ignore this context. In their attempt to protect American democracy, they may end up undermining it.

CHICAGO – A new legal effort to prevent Donald Trump from retaking the presidency next year is afoot. Its backers rely on Section Three of the Fourteenth Amendment of the US Constitution, which bars from office anyone who has “engaged in insurrection or rebellion … or given aid or comfort to the enemies” of the United States.

Numerous lawsuits have been filed arguing that Trump’s participation in an insurrection on January 6, 2021 – either by itself or as part of a larger effort to nullify the 2020 election – disqualifies him. Could a constitutional provision adopted in 1868 really save American democracy in 2024?

Section Three has already been used successfully to remove from office a New Mexico county commissioner named Couy Griffin, the organizer of “Cowboys for Trump,” who helped rally members of the mob that breached the Capitol on January 6. But the effort to remove Trump from the ballot has received further support from a recent article by two distinguished constitutional law professors, William Baude of the University of Chicago Law School and Michael Stokes Paulsen of the University of St. Thomas School of Law, who argue that Section Three does indeed apply.