THE BOOK OF LEVITICUS prohibits wearing cloth woven of two different kinds of material; Britain’s Parliament forbids entry to anyone wearing armour; and America’s constitution bans oathbreakers who have committed insurrection or rebellion from holding office again. Such antiquated restrictions are mostly just historical oddities. But sometimes they can be resurrected centuries later. That ignored section of the 14th Amendment to the constitution, written after the civil war to bar officials who had joined the confederacy in order to break up the republic, is suddenly getting a lot of attention. Lest The Economist be accused of selective editing, here it is:

“No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.”

You may be able to see where this is going. Donald Trump took an oath of office when he became president. His violent supporters staged an insurrection on January 6th 2021 when they broke into the Capitol and sought to overturn the certification of Mr Trump’s election loss specifically—and America’s constitutional order generally. This violence was not just aided and comforted by Mr Trump—who even in the aftermath of the attack could not prevent himself from saying “we love you, you’re very special” to the rioters—but begotten by his campaign to undermine faith in America’s elections. And Mr Trump, the front-runner in the Republican presidential primary of 2024, is certainly seeking to take office again. Does constitutional language meant to bar from office the likes of Jefferson Davis—a former Mississippi senator who was the Confederate States of America’s first and only president—also prohibit Mr Trump from doing so?

Lawsuits making that argument have been filed in 28 states, according to a tracker compiled by Lawfare, a non-profit. Twenty are still pending. Many of them have been filed by John Anthony Castro, a lawyer from Texas who is himself running, unnoticed, for the Republican presidential nomination. His quixotic efforts are making little headway with judges. More credible plaintiffs are bringing challenges that force judges to reckon with uncomfortable questions of constitutional law that they surely hoped they would never have to think about.

So far, they seem reluctant to intervene in the 2024 election if they can possibly avoid it. For one example, look to a 100-page ruling by Sarah Wallace, a state judge in Colorado, issued on November 17th. Although Judge Wallace was convinced that “Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech”, she ultimately concluded that the former president should not be removed from the ballot. That is because she does not believe the president counts as “an officer of the United States”, as mentioned in the relevant section of the 14th Amendment. She also writes, in an even more remarkable feat of hairsplitting, that the section was written to cover those who “support” the constitution, whereas the presidential oath is to “preserve, protect and defend” it. Huh?

Nor is the legal controversy going to abate. Those who brought the case in Colorado are taking it to the Supreme Court. On November 8th the Supreme Court of Minnesota dismissed a challenge to Mr Trump’s legitimacy as a candidate by pointing out that the constitutional prohibition did not apply to the forthcoming primary ballot—calling it “an internal party election to serve internal party purposes”—but said that it could be raised again ahead of the general election. On November 14th a Michigan judge rejected a challenge on similar grounds but also argued that courts ought in fact to participate in what is fundamentally a “political question”.

This will also be appealed before the state supreme court. The challenges might have more success as the general election nears—and if the federal or state prosecutors trying the former president for subverting the 2020 election manage to secure a conviction. A single state or federal judge agreeing to strike Mr Trump from the ballot would increase the chance that the Supreme Court would step in to settle the matter once and for all.■