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.”
They should worry more about the sitting president.
Has the sitting President been criminally indited?
Impeached?
He will be and his son is headed to jail.
Peter– I certainly try to refrain from criticizing
grammar. But your comment reminds me of the time
George “W” Bush asked “is our children learning?”
But, sorry— I know “W” is not the topic here.
But Why do you keep bringing up Biden ?
He’s not the topic here.
Simple, Don. Because D.J. Trump is not president and has not been president for over 2 years. Mr. Fruchtman wants to target Trump when the health of the current president is of MUCH more significance. Comprende?
Peter, Biden is in better overall health than Trump.
Lying is a disease.
Intimidation is a crime.
No
I’m more focused on our current president. He doesn’t know what day it is. So who is really running the country? The 25th Amendment is the one Mr. Fruchtman should be focused on. It’s time for Biden to go.
It’s not time for Trump.
I hope that there are better, viable, choices in 2024.
Peter– Another worthless, fact less comment about
how bad Biden is.
I actually do think he knows what day it is.
One thing I like about Biden is that he actually
knows fact from fiction. He may occasionally
have ” a slip of the tongue” — as Sarah Sanders
used to say when she was caught in a flat out lie,
but he is not a pathological liar. Nor is he a lifelong
crook facing nearly 100 criminal charges on everything
from stealing and disseminating top secret documents.
leading a mob that attempted to overthrow the duly
elected government of the U.S, and murder the Vice President
grossly cheating on his taxes and financial statements,
and paying off a porn star that he had sex with to keep quiet
to influence an election.
Among others.
What worries me is that 70 % of republicans still think
that trump won the election of 2020.
They should be barred from voting.
We have proof that trump is corrupt.
We have proof he lost the election.
Yet somehow he is the frontrunner of the party
that touts law and order, family values and honesty.
I think it’s the PFAS in the drinking water that is rotting
the brains of some people who are suspectable to
thing’s like “alternate facts”.
Why do you keep bringing up trump? He’s not the topic here. If you aren’t worried about the health of our current president, you aren’t paying attention. So who is running our government? Certainly not harris!
Peter– I am becoming a bit more concerned
than I already have been about the mental
health of some of my fellow commenters.
A few weeks ago Katherine Scott Said
“People complain about subsides to the so-
called “fossil fuel” industry. I don’t know why.”
when I commented that I found it interesting
that she used the term “so called” while describing the
world’s largest industry , she denied it.
RIGHT THERE– With her comment directly
above mine—-
Now, I comment on an article titled
“Does the Fourteenth Amendment disqualify
Donald J. Trump?” And you ask why I “keep
bringing up trump?” and claim he is not the topic
here ! Really, It may not seem like it, but I often
restrain myself from shooting fish in a barrel.
And when I don’t succeed with the self restraint,
Sam sometimes deletes it. But really– what is
going on that you think I shouldn’t be mentioning
trump in response to an article that is about
whether of not donald j trump should be disqualified ?
Take a step back and take a look at that.
And then tell me why —
Please and thank you
Yes, robb, Trump IS the topic here. He is mentioned many times in this op-ed titled, “Does the 14th Amendment disqualify Donald J. Trump?”. Biden is not mentioned, not once. You changed the subject, from Trump attempting to overturn the free and fair election, to Biden and his son, lying about Biden’s competency or carrying on about Hunter Biden’s drug addled behavior. No whataboutism will change who and what Trump is. It’s really pathetic to watch Republicans lie, lie, lie, trying to change subject and the facts about the criminal traitor they support(ed). That would be Donald J. Trump.
Another thought, Don. Biden and Harris are so bad, they might lose to Donald Trump. Consider that as poll numbers show Trump (and Haley) are both more popular than biden. You can’t make this up!
As Trump well knows, polls are not votes.
There are a whole lot of Real Republicans I would vote for over Biden or Trump.
Romney and Baker come to mind.
Trump should have been impeached for the way the way he treated McCain.
Don, Let’s look at his “slips of his tongue” :
– Says his house almost burned down – a small kitchen fire put out in minutes
– Says he was at Ground Zero the day after the attack – it was 9 days later
– claimed that in 2022 he witnessed the collapse of a Pittsburgh bridge even though it actually collapsed several hours before Biden visited the city
– he was arrested during a civil rights protest but has admitted that an officer simply took him home after the demonstration.
– Biden said he visited the synagogue where worshippers were killed in a mass shooting in 2018 – he’s never been there
– Claims he used to drive an 18 Wheeler – never happened
– Was caught plagiarizing a famous speech from British Labor Party Leader Neil Kinnock. Then he plagiarized another speech from Robert F. Kennedy, another from John F. Kennedy and another from former Sen. Hubert Humphrey.
– Was caught lying about academic awards that he never earned, about scholarships that he never received, and about his ranking in law school, stating he graduated in the top half of his class when, in fact, he finished 76th of 85.
– Claims he lost his first wife and daughter to a drunk driver. Not true. His wife was negligent in the accident and the other driver was not impaired.
And then we can go on and on about his corrupt involvement with his sons dealings. These are facts not easily absorbed by someone who wears a colander on their head.
Punishment for wrong thinking Keller? That is a novel idea and reminiscent of a past era.
andy– you know, a while ago I explained the
difference between biases’, racist thoughts,
( which we are entitled to on many levels)
and discrimination base on a variety of factors.
Nothing in my comment advocates for punishment
of “wrong thinking”
I do think there should be consequences for
stealing top secret documents and showing them
to unauthorized people– nothing about “wrong thinking”
there— outright theft and endangering our national
security.
Inciting a mob to murder elected officials ?
Yup, wrong thinking, but sorry, not legal when you act
on those wrong thoughts.
You can think you would like to murder elected officials,
and that’s fine— but when you actually smash the
windows and doors of the capital building with
the intent to disrupt the peaceful transfer of power
and actually murder those officials, we have a problem.
That’s a legal problem– it’s no longer ” wrong thinking”
pretty basic distinction–Can you try to understand that?
I’m not particularly fond of Christians– I could be guilty
of “wrong thinking” about them – that’s my right. Just like it is
for you to not be particularly fond of Pastafarians.
But if I smashed the doors of your church, tried
to murder your pastor, stole symbolic symbols of
your faith, and defecated on the alter, would
you be against me being prosecuted?
Answer honestly.
Or at least as honestly as you can.
Thanks
Keller if that is what happened I would prosecute. But your scenario is false and you dont know the facts.
The irony in all the phony indictments of Trump is that we lose our credibility and standing with the rest of the world who now believe we shouldn’t be lecturing them on human rights or any kind of misbehavior because our institutions are corrupt. I just came back from three weeks in 4 countries in Europe and they think we have gone nuts.
andy– of course they think we have gone nuts.
And we have– we have a narcissistic megalomaniacal
thief, con man, traitor, pathological liar, philandering,
demented orange blob of lard as the frontrunner
for the most powerful office in the world.
Phony indictments? You mean the ones handed down by grand juries consisting of American citizens who carefully considered the evidence presented and determined that there was enough evidence of criminality to indict? Are you saying that our criminal Justice system shouldnt apply to everyone? Or should only apply to Hunter Biden? Because THAT would cause us to lose our credibility and standing in the world.
They thought we were nuts to allow the the Electoral Collège to install Trump in the White House.
Phony indictments? Oh lol. If you think this country is the only one with corrupt politicians (and Supreme Court members) you haven’t been paying attention to what’s going on in the rest of the world.
What is Biden supposed to be indicted for? Having a drug addicted son? Pretty funny, coming from an island where all the drug and alcohol addicted who commit crimes are treated with compassion and kid gloves. Are the parents of these addicts sent to jail for the drug-induced criminal behavior of their offspring? Are they indicted for loving and supporting their drug addicted child? MV is in no position to politicize drug addiction with a false outrage.
The impeachment nonsense is a tit for tat, because Trump was rightly impreached twice. This garbage re Biden is brokered by the same immoral republicans who promoted the “stolen election” lie. Biden is well aware of what day it is, more than the traitorist, criminally indicted orange man who doesn’t know Obama is no longer President– Trump’s blunders have nothing to do with dementia, and more to do with an arrogant stupidity and inability to express himself. Both Biden and Trump are equally old. Too old, in my opinion, but my money is on Biden for being in far better condition, physically, mentally, and spiritually, and certainly in better shape to be President, as his record proves.
Spot on Jackie—
Not sure I agree with you. The information coming out of Washington suggest that the president is guilty of working with his son at some level. The Impeachment investigation will allow the House to get facts that the White House is fighting to hide. Let the chips fall where they may. If Biden is innocent, he has nothing to fear.
Interesting statement. Peter Robb, what “information” have you obtained and can you correlate it with apparently non-existentt “evidence”?
What information is that? The garbage spewed by right wing lying media? There is zero evidence of any wrong doing by President Biden. Just like there’s zero evidence of the 2020 election being stolen, or massive voter fraud.
what information ? back this up with facts, please.
Otherwise keep your mitts off the keyboard.
Biden/Fetterman 2024. A no brainer.
Jackie you re on the wrong side of this one. To suggest Biden is just fine is laughable.
Biden is more “fine” than the lying, criminal traitor, so I’m not sure what it is i am wrong about. Both men are too old to run for President at this point, but I’d take a million years of Biden over one minute of the criminal you supported.
You, of all people, I would have thought agreed that MV is soft on drug-addled criminal behavior… when it’s one of their own. When islanders hypocritically carry on about Hunter’s behavior, they look the other way about what’s going on at home. How is that untrue?
What part of the intention to impeach Biden is not political, caving-in-to-pressure, lying garbage?
Andrew, I’m guessing you skipped Biden’s speech at the UN Ythis AM. Compare that with the nonsensical mess Trump spouted on NBC last Sunday. When did Trump run against Obama. For starters?
Andrew you re on the wrong side of this one. To suggest Trump is just fine is laughable.
Ms. Mendez
All the assertions against Biden have to be proven as all the assertions and indictments against Trump need to be litigated in court. If Trump is guilty he should be punished as should Biden. Trouble is you have decided Trump is a crook and Biden isnt. You are entitled to that. I support the notion that one can believe another is guilty without a trial to prove it but in Trumps case they have been after him since 2016 and before, with Russian Collusion and several other things, so I believe other things are in play here.
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