The Fourteenth Amendment: Democracy Protection Enshrined in the U.S. Constitution

How Section 3 can foil autocrats who try and make it hard to prosecute them and ban them from running for office

All eyes are on the Fourteenth Amendment of the US Constitution. More precisely, all eyes are on Section 3 which, as summarized by the former judge J. Michael Luttig and the constitutional law scholar Laurence H. Tribe, "automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies."

Two constitutional scholars linked to the far-right Federalist Society, William Baude and Michael Stokes Paulson, recently made news with their article that invokes Section 3 to declare Trump disqualified from running for re-election. Now, in an Atlantic essay, Luttig and Tribe back them up, and argue that no criminal conviction is required to justify the implementation of Section 3. It is "self-executing" and independent of any prosecution or conviction.

For those who understand how autocrats think, this emphasis on a ban on running for office being independent of any criminal proceedings or convictions is fundamental. Leaders such as Trump act to make prosecutions and convictions harder to obtain. They seek to capture the justice system, purging non-loyalists, and they try and intimidate civil servants, judges included. Even a leader who is no longer in office can create a climate hostile to prosecution as part of debasing the rule of law. That means Section 3 would be severely limited if its use was dependent on the existence of criminal proceedings.

Luttig and Tribe also note that Baude and Paulson find that Section 3 is "expansive and encompassing" in how it considers "rebellion" and "insurrection." That matters because an intensive far-right disinformation campaign has sought to shift public opinion about the Jan. 6 coup attempt, depicting it as a tourist expedition, a peaceful unarmed protest, or a riot that simply got out of hand. Recent polls by Monmouth University show that 51% of Republicans felt Jan. 6 could be called a "legitimate protest" and only 44% agreed it was a "riot."

The success of this disinformation crusade means that if Section 3 were ever invoked to ban Trump from running for president, the Republican voter base would be primed to see that action as yet another example of the law being weaponized to victimize Trump, the clear GOP front-runner, and "rig the election" for Democrats.

In the age of information warfare, perception is everything. If you can get people to see a crime as "legitimate political discourse," --this is the GOP's official definition of Jan. 6 and all that led up to it-- then there are no good faith grounds for prosecution. For authoritarians, discrediting the judiciary is central to degrading trust in public institutions so any exposés of corruption, or prosecutions of violent seditious acts, will be seen as biased. Their end goal is always to gain control of that judiciary so that their legal troubles will vanish permanently, no matter what they say or do.