FRONTIERS OF CON LAW — The most important article you need to read today is Erica Orden on Trump and the Fourteenth Amendment.

Before we get into the legal nitty-gritty of whether the amendment’s sanction for those who have "engaged in insurrection or rebellion” applies to Trump, let’s tackle the immediate political impact.

Every governor and secretary of state in America will soon be asked and need to have an answer for the following question: Do you believe the Fourteenth Amendment disqualifies Trump from appearing on your state’s ballot?

For many state officials the answer will be an easy no, and there are respectable arguments they can lean on. Former federal judge MICHAEL McCONNELL, for instance, warns it would be “profoundly anti-democratic” to leave ballot qualification decisions in the hands of other partisan politicians.

But for many other officials who are 14A-curious there is a growing body of work, mostly from scholars with impeccable conservative credentials, that will be difficult to ignore:

— Federalist Society co-founder STEVEN CALABRESI writes at the Volokh Conspiracy: “Section Three of the Fourteenth Amendment bans anyone from holding any federal office who has taken an oath to uphold the Constitution and who then breaks that oath by engaging in ‘insurrection or rebellion against the same.’ Donald J. Trump is precisely such a person.”

— Law professors WILLIAM BAUDE and MICHAEL STOKES PAULSEN counter McConnell in a new law review paper: “Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.”

— And former federal judge J. MICHAEL LUTTIG wrote the following with Harvard’s LAURENCE TRIBE: “The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.”

As Orden details, the law and politics of this issue are moving fast:

• There are lawsuits in Florida and New Hampshire asking judges to block Trump from the ballot. Influential Democratic attorney and activist MARC ELIAS has been pressing the issue, and an activist group sent letters to officials in nine states in July asking them to ban Trump from the ballot.
• Michigan Secretary of State JOCELYN BENSON was on MSNBC recently to discuss the issue and said she was “taking it seriously” and would confer with her colleagues in 2024 presidential swing states Pennsylvania, Nevada, and Georgia.
• New Hampshire’s attorney general and secretary of state released a joint statement Tuesday on the questions surrounding Trump’s constitutional standing, saying, “The Attorney General's Office is now carefully reviewing the legal issues involved.”

The chances of at least one secretary of state agreeing with the Calebresis, Baudes and Luttigs of the world and kicking Trump off the ballot seem nontrivial. Trump would obviously challenge such a ruling, and so the Supreme Court could end up settling this previously obscure issue of constitutional law.