The Prospect of Trump’s 2024 Candidacy and the Constitutional Definition of ‘Insurrection’

The possibility of Donald Trump seeking reelection in the 2024 Presidential race is entangled with legal interpretations of ‘insurrection’ following his involvement in the events of January 6, 2021, at the U.S. Capitol.

Various liberal organizations have initiated legal actions in states such as Colorado and Minnesota to prevent Trump from appearing on electoral ballots, invoking a seldom-referenced section of the Constitution that disqualifies individuals from office if they have taken an oath to uphold the Constitution but then partake in an insurrection against it. This clause from the 14th Amendment has seen scant application since its post-Civil War inception.

The absence of substantial case law to clarify its language, particularly the definition of ‘insurrection,’ compounds the issue. Although the label ‘insurrection’ has been contested since the immediate aftermath of the January 6 event, the ongoing legal discourse seeks a historical understanding of the term as perceived by the framers of the amendment in 1868.

Derek Muller, a law professor at Notre Dame, has been attentively tracking the litigation and notes that while public debate has frequently employed the term ‘insurrection’ in a colloquial sense, the legal argument hinges on a concrete definition of the constitutional term.

The attempt to disqualify Trump from future ballots faces several legal hurdles, including the limited jurisdiction of state courts and the application of the 14th Amendment’s Section Three to a sitting president. Nonetheless, none has captured attention as the contention over classifying the January 6 incident as an insurrection.

During a Minnesota Supreme Court session, the authority of states to remove Trump from ballots was met with skepticism, partly due to uncertainties surrounding the act of insurrection.

Justice Gordon Moore inquired of attorneys from both sides their interpretation of what constitutes engagement in insurrection or rebellion against the Constitution.

Nicholas Nelson, representing Trump, characterized insurrection as organized violence with an aim to secede from or overthrow the U.S. government, a criterion he believes has not been met in recent decades.

Conversely, Ronald Fein, representing the petitioners with Free Speech For People, described insurrection as a concerted effort to disrupt the execution of a constitutional function—a description he aligned with Trump’s actions surrounding the January Capitol breach, which aimed to interrupt the certification of Joe Biden’s electoral victory.

Minnesota Supreme Court Chief Justice Natalie Hudson echoed the subjectivity of defining ‘insurrection’ after hearing both sides.

Gerard Magliocca, a law professor from Indiana University, presented his research into Section Three in a Denver court, analyzing historical definitions of insurrection and legislative interpretations from the period, including various acts by Congress and opinions by the U.S. attorney general in the late 1860s regarding former Confederates.

Critics point out that none of the numerous federal charges related to January 6 include insurrection, though some defendants have been convicted of seditious conspiracy. Magliocca emphasized that the language of Section Three does not necessitate a prior criminal conviction for disqualification from office.

In Colorado, constitutional expert Robert Delahunty highlighted inconsistencies in historical definitions of insurrection and emphasized the specific need to understand the phrase ‘insurrection against the U.S. Constitution.’

In the legal fray, even Trump’s defense in his impeachment trial acknowledged the Capitol attack as an insurrection, a fact highlighted by lawyers seeking Trump’s disqualification in Colorado.

The 14th Amendment has been referenced in recent times following the Capitol attack, with groups like Free Speech For People and Citizens for Reforming Ethics in Washington (CREW) attempting to invoke it against political figures like Rep. Marjorie Taylor-Green and former Rep. Madison Cawthorn, with varying success.

During Colorado’s legal proceedings, Trump’s defense attempted to portray the January 6 crowd as largely peaceful, with Tom Bjorklund of the Colorado Republican Party denying the event constituted an insurrection and attributing the violence to other groups, despite evidence to the contrary.

This complex legal landscape highlights the intricate connection between historical interpretation and contemporary political legalities as the United States grapples with the aftermath of January 6 and its implications for future elections.

Reported by Fernando from St. Paul, Minnesota.

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• 14th Amendment and insurrection
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