Could a 150-year-old piece of legislation block Donald Trump's path to the White House?

14th Amendment to the Constitution - Could a 150-year-old piece of legislation block Donald Trump's path to the White House?

The US presidential election is still more than a year away. But the debate is already raging as to whether a paragraph in the US constitution could exclude Republican frontrunner Donald Trump from the election.

On Tuesday evening, the Supreme Court in Colorado handed down a ruling that is causing fresh controversy. According to the judges, the former US president's behavior in connection with the storming of the Capitol on 6 January 2021 disqualified him from running for president. The name "Donald Trump" should therefore not appear on the ballot papers for the Republican primaries, the court ruled. Trump's spokesman Steven Cheung criticized the ruling as "deeply undemocratic" and announced that he would appeal immediately.

Since the summer, the debate has been simmering in the USA about whether a single constitutional paragraph could exclude the Republican from the elections. The impetus for this was an article published in August by two prominent conservative lawyers in the US magazine"The Atlantic". In it, retired federal judge Michael Luttig and constitutional lawyer Laurence Tribe come to the conclusion after a year of research that Section 3 of the 14th Amendment would prevent the ex-president from taking part in the elections. They argue that Trump is not eligible for the presidency because he "participated in an insurrection" during the storming of the US Capitol on January 6, 2021, despite having taken the oath of office.

Since then, electoral authorities across the country have been discussing how to deal with this sensitive legal issue in an already heated election campaign. Legally, there are many question marks. Should the conservative-leaning Supreme Court now intervene, further developments will be in its hands. But this is not the only reason why quite a few Trump critics are urging caution.

Dispute over the 14th Amendment and its application to Donald Trump

The history of the aforementioned constitutional amendment - also known as the exclusion clause - goes back to the late 19th century. After the end of the American Civil War, Section 3 of the 14th Amendment was ratified in 1868 to exclude from office Southern states that continued to send people to Congress who had previously held positions in the opposing Confederacy. The wording of the section states that any American office holder who has taken an oath to uphold the US Constitution is disqualified from holding future office if they have "participated in an insurrection or rebellion" or "aided or abetted" insurgents.

And this is where the legal disputes begin. Some legal experts are of the opinion that the so-called insurrection ban still applies today as it did at the time of ratification - similar to many other constitutional articles that have arisen from certain historical circumstances. For example, Noah Bookbinder, president of the liberal NGO "Citizens for Responsibility and Ethics in Washington", explains that the "established qualification" in Section 3 "is in many ways no different from the qualification that you have to be 35 years old and an American citizen to be president".

Critics of the application of the controversial constitutional amendment, on the other hand, argue that the section applies exclusively to the Civil War era and is therefore outdated. Furthermore, the state electoral authorities are not authorized to disqualify candidates before an election, and it has not yet been proven in court that Trump incited a "riot".

The legal questions include what constitutes "participation in an insurrection", who is authorized to challenge Trump's eligibility and who can enforce a disqualification if necessary. "Section 3 of the 14th Amendment is old - it hasn't really been put to the test in modern times," Jessica Levinson, a law professor who specializes in election law, recently summed up in the New York Times.

Several states are dealing with a tricky legal issue

In Trump's case, it initially looked as though the matter would be decided on a state-by-state basis. In early September, a group of six voters in Colorado filed a lawsuit to keep the Republican off the ballot on the basis of the 14th Amendment. The plaintiffs are Republican and non-partisan voters who argue that Trump should be immediately disqualified because of his role in the Capitol storm.

Similar efforts are underway in other states. In August, the liberal group Free Speech for People wrote to the secretaries of state of Florida, New Hampshire, New Mexico, Ohio and Wisconsin urging them not to list Trump on the ballot on the basis of the 14th Amendment. In the traditionally first primary state of New Hampshire, Secretary of State David Scanlan had subsequently asked the Attorney General to examine the possible applicability to the upcoming presidential election. In the battleground state of Michigan, Secretary of State Jocelyn Benson recently stated that "there are valid legal arguments" to keep Trump off the ballot and that she would discuss the issue with election officials in other states.

But many view the moves by liberal and conservative anti-Trumpers with skepticism. In Arizona, Secretary of State Adrian Fontes already announced that he had no authority to exclude the ex-president from the ballot, but added that the question of Trump's eligibility had not been resolved. His counterpart Brad Raffensperger argued similarly in a guest article in the"Wall Street Journal" and emphasized that voters alone "deserve the right to decide elections". In Florida, a federal judge has already dismissed a corresponding lawsuit. However, without clarifying the question of the applicability of the 14th Amendment, but because the plaintiffs were not entitled to file the lawsuit.

Heated political debate in the USA

The 14th Amendment is also tricky territory from a historical perspective. In New Mexico last year, Otero County Commissioner Couy Griffin became the first incumbent in 150 years to be disqualified. But although he was not convicted of a more serious crime - the charge was trespassing - he was actually present at the Capitol Tower. This fact distinguishes his disqualification from the failed attempts to invoke the 14th Amendment in the cases of Republican Representatives Marjorie Taylor Greene and Madison Cawthorn.

What is certain is that Trump is more deeply involved in the events of January 6 than Greene or Cawthorn. And the application of said amendment is not tied to a conviction in any of the four ongoing trials against him. But given that the ex-president is currently facing 91 criminal charges and "participation in a riot" is not one of them, it may be difficult to charge him with this specific offense.

With the verdict in Colorado, the debate has taken on a new dimension. One that is likely to soon occupy the highest court in the United States: the Supreme Court. This had shifted significantly to the right as a result of the judges appointed by Trump. It is therefore no surprise that Trump's spokesman Cheung emphasized that there is full confidence that the Supreme Court will quickly rule in his favour and finally put an end to "these un-American lawsuits". "I think it could be 9-0 in Trump's favor before the Supreme Court," said Ty Cobb, a former White House lawyer, in an interview on CNN.

In an already heated election campaign, political observers warn against underestimating the importance of public perception. For most experts, it is clear that January 6 amounted to an insurrection. But a Monmouth University poll last year showed that only 52 percent of Americans shared this view. It could therefore be a risk to exclude Trump from the election for his role in the Capitol storm, which half of Americans aren't even convinced was a riot in the first place.

Or, as the liberal US professor Noah Feldman puts it in his guest article for"Bloomberg": "Donald Trump is obviously unfit to be president. But it's up to the voters to stop him. Magical words from the past will not save us."