In an extraordinary law review article, two highly respected and quite conservative law professors argue that former President Donald J. Trump is ineligible to become the next president of the United States. William Baude and Michael Stokes Paulsen contend that his involvement in the Jan. 6, 2021, attack on the U.S. Capitol disqualifies his candidacy.
The two cite Section Three of the 14th Amendment, which provides that “no person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath … 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.”
An extraordinary argument, especially coming from the right rather than the left.
Historians view the provision as a way to prevent Confederates who once pledged their loyalty to the U.S. but broke that pledge from ever again serving in public office. In his 2019 book, Columbia University historian Eric Foner argues that the post–Civil War constitutional amendments (the 13th, 14th, and 15th) constituted a new beginning for America. It was, as his title indicated, “The Second Founding: How the Civil War and Reconstruction Remade the Constitution.” But when he addresses Section Three, he writes that it has “long since faded into history.”
Not so, say Baude and Paulsen, even if, as the provision continues, “Congress may by a vote of two-thirds of each House, remove such disability.”
As originalists in how they interpret the Constitution, the professors, both active members of the conservative Federalist Society, point out that “it is the enduring text of the Constitution that supplies the governing rule, not the ostensible ‘purpose’ or specific historical situation for which the text was written.” Section Three, they write, “states a rule of law embodied in the written constitutional text as permanent, fundamental law.” It is, in short, in full force.
It does not constitute punishment, because it is a civil, not a criminal, matter.
Baude and Paulsen point to the New Mexico case of former county commissioner Couy Griffin, who was convicted in federal district court for entering the Capitol building on Jan. 6, 2021. A state court judge removed him from office under Section Three, stating that Griffin “incited, encouraged, and helped normalize the violence,” and called Griffin’s actions “overt acts in support of the insurrection.”
Donald Trump has been indicted four times, with 91 charges against him. In one of the two federal cases, he is accused of plotting to overturn the results of the 2020 presidential election. If convicted, according to Baude and Paulsen, he would face the same consequences as Couy Griffin in New Mexico, and be ineligible for any state or federal office ever again, unless Congress grants him amnesty.
Legal scholars on both the left and right have endorsed their conclusion. One of the founders of the Federalist Society, conservative law professor Stephen Calabresi, agrees that “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them.”
Conservative former federal Judge J. Michael Luttig and liberal law professor Laurence Tribe write in the Atlantic that “this provision of our Constitution continues to protect the republic from those bent on its dissolution. Every official who takes an oath to uphold the Constitution, as Article VI provides every public official must, is obligated to enforce this very provision.”
In short, they too agree with Baude and Paulsen that Trump’s attempt to overturn the 2020 election began shortly after votes were cast on Election Day, Nov. 3, 2020, right up to his call on Jan. 6, 2021, for the crowd to march on the Capitol. Their conclusion is that “Trump engaged in the Jan. 6 insurrection through both his actions and his inaction. Officials — administrators, courts, legislators — whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office.”
But is this the right thing to do?
Many commentators rightly suggest caution. That it is improper for the judiciary to intervene this way in a political campaign. Former federal judge and now law professor Michael McConnell writes, “We must not forget that we are talking about empowering partisan politicians such as state secretaries of state to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly antidemocratic.”
He is, in my judgment, right: It is far better to leave elections to the people rather than judges.
Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his “Supreme Court and Constitutional Law.”