History Argues for Disqualifying Trump

One of the most difficult things to ask a judge to do is issue a ruling that he or she believes is actually dangerous. Even if you can make a strong case that the letter of the law is on your side, judges are tempted to narrow the reach of disfavored laws or sometimes virtually rewrite them in order to avoid outcomes that are deemed too radical or disruptive.

Thus, it’s incumbent on good lawyers to argue not merely in favor of the letter of the law but also for the underlying merit of the law itself. My newsletter two weeks ago focused mainly on the legal argument for disqualifying Donald Trump from the presidency on the basis of the text and history of Section 3 of the 14th Amendment. I made the case that the plain language of the amendment should disqualify Trump regardless of the consequences, which many observers — including some strongly opposed to Trump — believe would be dire and violent.

Today, by contrast, I will make the case that even the consequences argue for Trump’s disqualification. Or, put more directly, that the consequences of not disqualifying the former president are likely to be worse than those of disqualifying him. This is the lesson of history both recent — the Trump era and Jan. 6, 2021 — and more distant. The profound mistakes of the Reconstruction-era Congress, just years after the Civil War and the ratification of the 14th Amendment, teach us about the high cost of welcoming insurrectionists back into high office.

I addressed these points briefly in a short post for our new Opinion blog, but they deserve more attention. Critics of applying Section 3 to Trump have correctly and eloquently argued that removing him from the race could trigger a convulsive and potentially violent backlash in the American body politic. Millions of Americans would feel as if their choice was taken from them and that scheming elites were destroying American democracy.