Jonathan P. Baird

We are well over a year out from the 2024 presidential contest in November 2024 and most political commentators are assuming the race will be between Joe Biden and Donald Trump. That is the conventional wisdom, but in this instance, the conventional wisdom may well be wrong.

Even though it will greatly disappoint many of his followers, under the Fourteenth Amendment, Donald Trump is likely disqualified from running for President in 2024. Section 3 of the Fourteenth Amendment excludes from future office and position of power in the U.S. government any person who took an oath to support and defend the Constitution but then engaged in and gave aid and comfort to an insurrection against it.

This provision of the Constitution, known as the Disqualification Clause, can only be overcome by a two-thirds vote of both Houses of Congress.

The Disqualification Clause has been overlooked even though it is still perfectly good law. It came about in the aftermath of the Civil War. The framers of the Reconstruction Amendments, including the Fourteenth, determined that public officials who try to overturn the government by force should be barred from leading it.

Sen. John Henderson of Missouri, a framer of Section 3, explained that the Disqualification Clause bars “from office the leaders of the past rebellion as well as the leaders of any insurrection or rebellion hereafter to come”. That fits Trump to a tee. The provision was not limited to past rebellions.

There are a number of constitutional limitations on who can serve as President. These include: being at least 35 years old, being a natural-born U.S. citizen, and being a U.S. resident for at least 14 years. Also presidents cannot be elected more than twice.

Two prominent conservative legal scholars, William Baude and Michael Stokes Paulsen, have persuasively made the case for Trump’s legal disqualification in their much-discussed upcoming law review article. They argue Section 3 “remains of direct and dramatic relevance today”.

They also argue Section 3 is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress”. By that they mean that no criminal charge or conviction is necessary for a person to be adjudged disqualified.

Of course, big questions abound around enforcement of the disqualification and undeniably legal challenges will ensue. The case will almost certainly end at the U.S. Supreme Court but it is clear that Section 3 of the 14th Amendment can be enforced against Trump through civil proceedings in state court. State officials can determine what names can appear on the ballot for presidential elections. They can conclude a candidate is constitutionally prohibited from assuming office.

In 2022 exactly this process occurred when a New Mexico County Commissioner and Cowboys for Trump founder, Couy Griffin, was removed from office for his role in the January 6 attack on Congress. The standard of proof required in a civil disqualification case is “preponderance of the evidence” which means more likely than not.

The evidence in Trump’s case is overwhelming. After taking the oath of office in 2017, Trump played a central role in causing an insurrection that nearly overthrew an election and almost shattered our democracy. The attack on the Capitol on January 6, 2021 was not a spontaneous event.

As the Citizens for Responsibility and Ethics on Washington (CREW) have written January 6 “was the culmination of a multi-part scheme by the former president and his allies to use lies, intimidation, coercion and ultimately violence to keep Trump in office and invalidate the votes of the more than 80 million Americans who cast ballots for Joseph R. Biden in the 2020 presidential election”.

Those who say that Trump didn’t engage in an insurrection against the Constitution have an extremely uphill argument. Trump spread false claims of a stolen election before and after he exhausted legal challenges. He promoted fake elector schemes and led efforts to coerce government officials, including his own Vice-President, to help overturn a lawful election.

He summoned a violent mob for a “wild” protest. On January 6, he incited the mob “to fight like hell” and he watched the attack on the Capitol for three hours and refused to call off the mob. For the first time in U.S. history, a mob, at the direction of the former president, disrupted the peaceful transfer of power.

In a December 2022 post on Truth Social, Trump called for termination of the Constitution in order to restore himself to power. As CREW has written “he is the living embodiment of the threat that the Fourteenth Amendment’s framers sought to protect American democracy against when they banned constitutional oath-breakers from office”.

In making this argument, I don’t minimize barring someone from the ballot. Most of the arguments I have seen opposing the relevance of the Disqualification Clause focus on the momentous decision to exclude Trump from the ballot. Millions of Americans still want to vote for him.

The legal scholar Noah Feldman says state election officials who blocked Trump would face “an enormous amount of trepidation” making such “an epochal decision absent judicial guidance”. There is also worry about the precedent of striking contenders from the ballot as leading to future electoral trouble.

To avoid electoral problems since a case around these questions will end at the Supreme Court, the Court should fast track it once cases are filed in states. I do believe such cases will be filed. While the Supreme Court has repeatedly discredited itself, I would not predict how it would resolve the Section 3 questions but it could be done in a way that would not lead to election confusion.

As a political matter, refusing to hold Trump accountable will only embolden future authoritarians. It is dangerous not to invoke Section 3. The Constitution remains the supreme law of the land and the language of Section 3 is straightforward and clear.

Who thinks that if Trump is the Republican nominee in 2024 he will not make the exact same claims about a rigged and stolen election that he made in 2020? Given his legal desperation, you can bet on it. Also it is highly predictable if he is on the ballot and loses that Trump and his allies will again resort to extra-legal measures and violence. Learning from their failure on January 6, expect something worse from the Trump team.

Section 3 is the peoples’ constitutional protection against demagogues. History shows its necessity. Its invocation is critical to the continuation of our democracy.

In his book, How The Word Is Passed, the writer Clint Smith says that the history of the United States is the history of slavery. It was central to our American story. Of course, in my own educational experience, that was not the case.

Smith talks about gaps in how the slavery story has been told. I went to a very good school growing up in the Philadelphia area and from the curriculum, what we learned about slavery was minimal to nothing. The story wasn’t told.

I believe that bypass has been and remains the norm. With maybe the exception of Frederick Douglass’s autobiography, the voices of the enslaved are not heard. The transatlantic slave trade itself gets scant coverage. For generations, America has been unwilling to tell the story. Illiteracy about slavery is a common educational result. Students graduate with a very poor understanding of how slavery shaped America.

I couldn’t help but think about this when I saw the stories about Florida’s latest curriculum featuring a cartoon Christopher Columbus saying “being taken a slave is better than being killed”. Columbus tells the kids “slavery is no big deal”.

The Florida Department of Education has suggested some slaves benefited from skills they learned while enslaved. This is the type of statement you might expect from partisans of neo-Confederate Lost Cause ideology.

Florida actually has a pernicious and shameful racial history on a par with Alabama and Mississippi. It is no wonder the state would like to bury just how bad it was since it is so contrary to any sunshine state image designed to woo tourists.

Most of the articles I have seen about Florida’s new curriculum don’t get into Florida’s actual history. That submerged story is well told in Marvin Dunn’s book A History of Florida Through Black Eyes. It is like an underground history you never see told.

Going back to the 1500’s, Spanish colonists began trafficking Africans to Florida. Slaves helped establish outposts and built fortifications. French trafficking of Africans followed later. The colonists resorted to using Africans when they found Native Americans more challenging to control. Possibly Africans were more disoriented in America being separated from their homes, families and culture.

Slave labor was critical to the development of economic and agricultural infrastructure in Florida and throughout the South. Florida was a wilderness. It became an American territory in 1821 and an American state in 1845. The U.S. government built a number of forts to protect the white settlers. The land grab by white Americans created an opportunity to profit by seizing large parcels of land.

The white settlers brought ideas of racial superiority with them. Blacks had no status or protection from abuse by whites. Dunn wrote:

“Crimes against blacks were dismissed out of hand. Blacks could not serve on juries or testify in court against a white person. Often the press, police, judges, grand juries and elected officials were secretly, and sometimes openly, supportive of, if not involved in, the use of violence as a means of controlling blacks.”

Cotton plantations, especially around Tallahassee, sprang up in northern Florida. The white plantation owners worried about free blacks. They also worried about their ability to control the slave population. The example of the Haitian revolution and abolitionism spurred fear that association with free blacks might encourage their slaves to run away. Dunn says the loss of slaves meant a loss of wealth since the cost of slaves far exceeded the cost of land. Dunn elaborated:

“The incessant demand by slaveowners that the American government use military force to capture and return escaped slaves and to remove the Seminoles from Florida was the driving force that shaped the history of the peninsula for decades after the departure of the Spanish.”

New Orleans slave traders brought many slaves into Florida. St. Augustine was a slave trading hub. Many whites adhered to a might-makes-right mentality and the powers-that-be prevented and outlawed education for slaves. Mortality rates for slaves were much higher than that of the white population.

On January 10, 1861, Florida seceded from the Union. It was the third state to do so. When the Civil War picked up steam, the Union forces recruited blacks into the Union army, an act that didn’t sit well with many white Southerners. Black troops played an important role in battles that took place in Florida.

However, even after the Civil War was won, anti-black violence remained rampant. Hopes that were raised for black economic advancement during Reconstruction were dashed. Instead of land ownership to the former slaves, the white elites regained power and crushed black hopes for economic power. Dunn wrote “the economic fates of blacks for generations in the South was set in stone by this betrayal”. The dream of 40 acres and a mule never materialized.

Florida also made a concerted effort to repress Black voting, leading the way in implementing a poll tax in 1889. That theme of voter suppression remains consistent to this day.

What followed was an extremely dark period in Florida history. Among states, Florida was in the top tier for lynching. It had the highest number of lynchings per capita of all the former Confederate states in the period from 1880-1930, more than twice the rate of Georgia, Mississippi or Louisiana. Racist Florida governors like Sidney Catts explicitly opposed NAACP efforts to bring lynchers to justice.

Florida also featured what is today known as ethnic cleansing: mobs of rampaging white men terrorizing black communities and forcing people to flee for their lives. The Klan was active all over the state especially in the 1920’s. Lynchings and ethnic cleansing were about creating an atmosphere of terror to keep black people down, in their place.

Florida’s efforts to minimize the effects of slavery reflect a white supremacist perspective. It is the story Florida’s leaders still want to tell in their PragerU videos.

Winston Churchill once said, “History will be kind to me because I intend to write it”. So it has been in American history with those who came out on top telling the story. Instead of Florida’s whitewash, healing requires public acknowledgement of the real history.

While I am not an election predictor, I did notice the recent New York Times/Siena College poll taken before Donald Trump’s latest criminal indictment that indicated that he and President Biden are in a tight race for the presidency. Even if you are, like me, highly skeptical about early polls, the poll reinforced the seriousness of Trump’s candidacy. He appears to be, far and away, the leading Republican contender. Given that, it is important to step back and think about what a Trump second term might look like.

I see it as the consolidation of an American style of fascism and very likely the end of our democracy. My view does not come from liberal or left sources. It comes from listening to what Trump’s team is saying they plan to do if they again achieve power.

Trump plans a sweeping expansion of executive power which would concentrate far greater power in his own hands. He intends to bring powerful government agencies like the Department of Justice (DOJ), the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) under presidential control.

The Trump team has said that they will scour the federal government, including intelligence agencies, the State Department and the Defense Department to remove all officials they consider “disloyal” to Trump.To quote Russell Voight, Trump’s former head of OMB, “What we’re trying to do is identify the pockets of independence and seize them”.

This does not reflect the historic relationship between DOJ and the White House. Historically the DOJ has been independent of White House control. A Trump-controlled DOJ would be used to punish those considered MAGA enemies. It is predictable Trump would direct the IRS into action against those on his enemies’ list.

The Trump team wants to strip employment protection from tens of thousands of federal civil service employees. He would do this by reimposing his Schedule F executive order. Anyone deemed an obstacle to the Trump team will be removed and would be replaced by Trump sycophants. No doubt there would be legal challenges but this is how he would go after what he calls the “deep state”.

Conservatives going back to Reagan and Dick Cheney have touted a theory known as the unitary executive where the president is seen as essentially an elected king. To quote Trump from 2019, “I have an Article II where I have the right to do whatever I want as President”. Trump wants to revive the practice of “impounding” funds. That is, he wants to be able to refuse to spend money Congress has appropriated for programs he doesn’t like.

Dissent would likely become an endangered species as the risk of speaking out would be too great. The Trump view that the press and media are the enemy hasn’t changed. The FCC might be used to silence critics and to end investigative journalism.

Trump is a climate change denier and his first term was a giant step backward on climate but a second term would likely be far worse. The world is running out of time to take action but the conservative brain trust around Trump wants to reverse all federal government efforts to counter climate change.

The conservatives have devised a plan called Project 2025 that would block expansion of the electrical grid for wind and solar energy, would cut funding for EPA’s environmental justice offices and would forbid states from adopting standards like California’s car pollution rules.

Project 2025 is not just anti-science – it is an absolutely sinister effort at the behest of fossil fuel companies to gut environmental regulation at a time when the dangers of global warming have never been more apparent.

For women, I think a Trump second term would be an opportunity to live out The Handmaid’s Tale. Expect an effort for a national ban on abortion with no exception for rape or incest. Imagine the FDA looking to end access to birth control as well as abortion medication. Trump would embolden Christian nationalist lawyers and judges to revive the mummified Comstock Act.

Minorities would face a landscape of intensified voter suppression and gerrymandering. The historian Carol Anderson has pointed out that underlying Trump’s Big Lie was the big lie of voter fraud.

Trump continuously railed about voter fraud in cities with large African-American and minority populations like Detroit, Philadelphia and Atlanta. He and Giuliani mercilessly and falsely slandered election workers Ruby Freeman and Shaye Moss. Guiliani has now admitted he lied about Freeman and Moss but Trump can be expected to continue slanders of this nature. He linked black election workers with drug dealers and called Freeman and Moss “hustlers”. Vicious racism is his game and it will continue.

In a twisted reversal, alleged discrimination against white men and Christians would be highlighted. Using the excuse of critical race theory, “patriotic” education which hides the truth about racism would be promoted. As happened in Trump’s first term, hate crimes would spike against people of color and Jews.

The wild card would be where the pent-up hate and rage of MAGA would lead. Would it be directed against trans people, LGBTQ people generally, immigrants, Muslims, Jews or leftists? Would bolstered white supremacists and antisemites take their hate to the next level? Would Proud Boys, Patriot Front, militias and neo-nazis decide it was time to start the civil war?

Trump would likely pardon all January 6 insurrectionists who were convicted of federal crimes who were still incarcerated. He says he will prosecute “the Biden crime family”.

We might see Trump and his sadist allies like Stephen Miller restore family separation and put children in cages again. They talk about outlawing birthright citizenship, a right embedded in the Fourteenth Amendment. Also there is talk about moving to kick undocumented children out of public school, contrary to the Supreme Court precedent in Plyler v Doe.

As many have remarked, Trump is running to stay out of prison as victory offers his best protection but I think the deeper plan is to destroy democracy so he can make himself president for life. That way there is no chance he ever goes to jail. If he wins re-election, he will move to pardon himself as well as his co-conspirators and other MAGA allies who were convicted of crimes. It is highly doubtful there would ever be any more free or fair elections.

The real American carnage is what Trump would unleash in a second term. I would call it fascism. Others might call it “illiberal democracy” like in Victor Orban’s Hungary. It would be the rejection of democracy and the rule of law in favor of rule by a strongman.

Trump is not fighting for anyone else besides himself but the amazing thing is the level of buy-in by so many whom he would never give the time of day. It really is the ultimate con.