The Insurrection Clause doesn’t apply to presidential primaries

The Insurrection Clause became part of U.S. Constitution on July 9, 1868. Coincidentally, that was the same day that the Democratic Party finalized their national ticket for the first presidential election since the end of the Civil War. Governor Horatio Seymour of New York would be their standard-bearer against the heavily favored Republican nominee, Ulysses S. Grant.

Both parties picked their leader at a national convention attended by delegates that had all been chosen by party bosses in their respective states. There were no presidential preference primaries in 1868 — that concept first evolved at the beginning of the 20th century.

The Constitution makes no mention of political parties. In 1868, national party conventions were a relatively new concept. Senators were not chosen by the people in a general election, much less nominated in a primary election, until after ratification of the 17th Amendment in 1913. Congressional nomination primaries likewise didn’t exist at the time the 14th Amendment was adopted.

So the 14th Amendment could not have been written with presidential primaries in mind. Likewise, it could not have been intended to apply more generally to the presidential nominating process of the two major parties. Rather, the authors were addressing the right of an individual “to hold and serve” in elected or appointed federal office.

The Insurrection Clause doesn’t specifically mention the presidency. This has become a bone of legal contention, since the amendment does specifically mention members of Congress and those who may serve as electors to the Electoral College. But as the lawyers say, let’s assume arguendo, the Insurrection Clause does ban an insurrectionist from serving in the Oval Office.

In 1868, as in 2024, the process for electing a president had four separate phases. Phase one is delegate selection. Since the passage of the 14th Amendment, only a Democratic or a Republican nominee has won the White House. Each one has been chosen at a national convention.

Every four years, each party issues a “Call to Convention.” The parties have a First Amendment right to choose a nominee by whatever rules the majority supports. There is no constitutional bar to including in this call rules changes every four years. Moreover, once the delegates assemble, they can adopt a different set of rules than authorized in the call.

Even if Donald Trump amassed a delegate majority, the convention could still deny him the nomination.

The 14th Amendment doesn’t define the terms “insurrection or rebellion.” Nor does it lay out a process for adjudicating the matter. The amendment gives Congress the power to resolve these issues — but it never has.

The amendment therefore lets the political parties address these issues as each sees fit. Should a majority of the GOP delegates believe Donald Trump has engaged in insurrection or rebellion against the federal government, they can deny him the nomination. He has no constitutional right to run as the GOP nominee, irrespective of the number of delegates he receives in the primaries. A candidate seeking a party nomination for president therefore lacks the necessary constitutional nexus to the bar in the Insurrection Clause.

Phase two is the nomination of the party standard-bearer. The major parties have automatic presidential ballot access across the 50 states and DC. The language of the 14th Amendment focuses on serving in office, not running for office. But any legal challenge need not wait until someone wins the election. Waiting until the election is over, and then declaring the vote null and void, would precipitate a national crisis. Should former President Trump be nominated, an immediate legal challenge under the Insurrection Clause would be timely.

The failure of Congress over the last 156 years to address the constitutional holes in the Insurrection Clause leaves us in a quandary. As in 1868, our election for president is actually the collective result of dozens of separate elections across the country. Thus, the Colorado Supreme Court, the Maine Secretary of State and others believe each jurisdiction has the power to enforce the Insurrection Clause by its own evidence, rules and procedures.

It is absurd to think the drafters of the 14th Amendment intended such constitutional chaos. Should Trump be nominated, there will be ample time for the Supreme Court to resolve his constitutional fitness to be on the general election ballot before voting starts.

Phase three of the process is the Electoral College vote. The final phase is the counting of the Electoral College votes in the Senate. But the Insurrection Clause issues should be decided long before either phase kicks in.

The 14th Amendment puts each party on notice concerning the risk taken should they nominate an insurrectionist. Congress had the power after Jan. 6 to apply it to Trump, or any primary contestant. Lawmakers refused. Bad policy, perhaps. But the law nonetheless.

Paul Goldman is a Richmond, Virginia attorney and former chair of the Democratic Party of Virginia. Mark J. Rozell is the Founding Dean of the Schar School of Policy and Government at George Mason University.