Four years ago today, Donald Trump incited a violent insurrection in an attempt to overthrow the results of the 2020 presidential election. Trump’s supporters stormed the U.S. Capitol, defeated federal law enforcement, conquered the seat of our national government, nearly assassinated the vice president and key congressional leaders, and blocked Congress from certifying his electoral defeat, thus disrupting the peaceful transfer of power for the first time in our nation’s history.

Now Trump is about to take the oath of office again, the same promise he so flagrantly violated in his illegal and unconstitutional efforts to maintain power. In doing so, he became disqualified from holding any future public office under Section 3 of the Fourteenth Amendment, also known as the Insurrectionist Disqualification Clause.

Section 3 of the Fourteenth Amendment makes clear that anyone, including the president, who takes an oath of office to uphold the Constitution and then engages in insurrection is disqualified from future public office.

This critical constitutional provision, designed to protect the republic, states: “No person shall . . . hold any office, civil or military, under the United States. . . who, having previously taken an oath, . . . as an officer of the United States. . ., to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

That plain text says that Donald Trump engaged in insurrection and cannot hold the presidency. The original public understanding – what several Supreme Court Justices claim is the only way to understand the Constitution – yields the same result. In 2023, two rock-ribbed conservative law professors – leaders in the Federalist Society, committed to the methods of constitutional interpretation that conservative justices like Scalia, Gorsuch, and Thomas have preached for a generation – examined the question with open minds, starting from the law and the facts and seeing where they led. Their conclusion: Trump engaged in insurrection and is disqualified from office, and state election officials and courts have the authority and obligation to exclude him from the presidential ballot.

Likewise, every court and state official that addressed that issue – in Colorado, Maine, and Illinois – concluded that Trump is disqualified and should be excluded from the ballot. No court or official anywhere in the country ever decided otherwise. Some state courts ruled that their state-law candidacy challenge processes did not apply to presidential candidates, but no court or official ever decided, based on the facts, that Trump did not engage in insurrection, or is not subject to Section 3. Everyone who considered this on the merits has agreed: Trump is constitutionally ineligible for the presidency.

In Trump v. Anderson, the case arising out of the Colorado challenge, the Supreme Court, determined to avoid the overwhelming evidence that Trump engaged in insurrection, invented an exception to Section 3 – applicable only to federal candidates, such as Trump – to rule in his favor. The Court claimed that states do not have the power to determine eligibility of federal officers under Section 3 and that only Congress can enforce that constitutional provision.  As we stated in this op-ed for The Jurist, the ruling was an error of historic proportions and a sham. 

Free Speech For People proudly pioneered the application of Section 3 of the Fourteenth Amendment to hold Trump and other insurrectionists accountable, including with our February victory in Illinois, where a court ruled that Trump is disqualified.  While the Supreme Court’s politically-motivated and unprincipled decision blocked our efforts to enforce Section 3 at the ballot stage, it did not reject (or even address) the argument that Trump is constitutionally ineligible to serve under Section 3.  In fact, in September, Professors William Baude and Michael Stokes Paulsen, the two prominent conservative law professors referenced above, released a new law review article, expanding on the points we made in our op-ed in The Jurist, and demonstrating that nothing in the Supreme Court’s decision alters the fact that Trump was and remains disqualified under Section 3 from serving as president. 

As Donald Trump returns to the Oval Office, despite his constitutional disqualification, we will continue to fight corruption at the highest level and to defend our democracy and our Constitution across the country.