I doubt that any academic article on the law has moved so rapidly from its circulation among scholars to the adjudication of the merits of its argument as “The Sweep and Force of Section Three,” by William Baude and Michael Stokes Paulsen. Initially posted to the Social Science Research Network in mid-August 2023—with publication still forthcoming in the pages of the University of Pennsylvania Law Review—Baude and Paulsen’s 126-page case for Donald Trump’s disqualification from the presidency has been downloaded more than 100,000 times and figures prominently in the reasoning of the Colorado supreme court’s decision of December 19 that Trump’s name cannot appear on the state’s primary election ballot. (It is not cited in the December 28 ruling by Maine’s secretary of state to the same effect, but one might say that Baude and Paulsen’s fingerprints are visible.) Other scholars reached the same conclusion both before and since their article’s appearance—and still others vehemently disagree with their conclusion. Some states have considered the question and permitted Trump to remain on primary ballots. The question is now headed to the U.S. Supreme Court.
The “Section Three” of Baude and Paulsen’s title is the third section of the Fourteenth Amendment, crafted by the Thirty-ninth Congress after the Civil War and ratified in 1868:
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.
The case against Trump, then, is that, having sworn the oath of office as president on January 20, 2017, he then on January 6, 2021 “engaged in insurrection or rebellion” against the constitutional order that was the subject of that oath. Thus, he is now ineligible for any office, state or federal, in the United States, or for service in Congress or any state legislature or as a presidential elector.
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Legal scholars, politicians, and pundits are furiously debating whether Baude and Paulsen are correct—and so also whether the Colorado supreme court and the secretary of state of Maine got it right. I would like to proceed by addressing the questions raised in this controversy, beginning with several that are purely legal. Answering these questions will tell us whether anyone in authority can determine that Trump’s actions three years ago disqualified him from future office—if, that is, he did anything qualifying as “insurrection or rebellion.” Let us take each in turn.
Is Trump covered by the language of Section Three as a former oath-taking officer now seeking a federal office?
It is quite clear that he is. Some commentators have observed, as though it made a difference, that presidents take a unique oath, distinct from that taken by other officers and legislators. Or they note some linguistic peculiarities in earlier clauses of the Constitution to advance the view that the presidency is not a “civil office,” or that the president is not an “officer of the United States.” Such a conclusion would either immunize insurrectionist past presidents from the section’s effect or immunize insurrectionists from serving subsequently as president—or both. But these arguments, as both the Colorado court and Baude and Paulsen show (as do others), fail any standard of ordinary meaning, as well as failing to account for all the contemporaneous arguments that informed the framing and ratification of the Fourteenth Amendment.
The prospect of a past insurrectionist being a future president was undoubtedly contemplated by the framers and ratifiers of the amendment. It is much less probable that they thought of a sitting president fomenting an insurrection in order to stay illegitimately in office. If he did just that, we have Donald Trump to thank for the nightmare they may not have imagined. But the idea that some linguistic sophistry can provide him an escape from disqualification is derisory.
Must Congress legislate some enforcement mechanism for disqualification under Section Three, without which it is effectively a dead letter?
No. By its terms, and like the terms of the first, second, and fourth sections of the Fourteenth Amendment, Section Three is “self-executing.” That means that its terms have their full force and effect in law without any need of “enabling” legislation on Congress’s part. So the Reconstruction Congress plainly understood it, as the members voted on a number of occasions to deny seats to putative members-elect who had been active supporters of the Confederacy after earlier taking an oath to the Constitution. In those cases, each house of Congress was itself the judge of what qualified a person for membership in the body, without any need of reference to a statute on the subject.
Chief Justice Salmon P. Chase, sitting as a circuit judge in Griffin’s Case in 1869, held that the ruling of a judge in a Virginia court could not be set aside owing to the judge’s Section Three disqualification for his office, because no congressional act could be cited on the subject. But as Baude and Paulsen show at length—and the Colorado court does as well—Chase’s opinion on this matter was fundamentally unsound. The most basic problem is that, by parity of reasoning, if Section Three requires an enforcement statute enacted under Section Five of the Fourteenth Amendment, then so do all the provisions of Section One—citizenship, privileges or immunities, due process, and equal protection of the laws—and that has never been the law.
Insurrection is also a crime against the United States, codified at 18 U.S. Code § 2383. Is it necessary that Trump be convicted of such a crime before he is considered disqualified?
No. It is not a constitutional necessity that Congress legislate at all against “insurrection or rebellion” as a criminal offense, though it is no surprise that it has done so since the 1790s. These terms, like “treason,” have had an independent constitutional status since long before the Fourteenth Amendment. “Insurrection” is a ground for calling forth the state militias, as Article I, Section 8, clause 15 tells us. And the habeas corpus clause of Article I, Section 9 identifies “rebellion” as grounds for suspending the privilege of the writ. (Relatedly, “domestic violence” is mentioned in Article IV, Section 4.) In other words, the Constitution contemplates these things as facts on the ground to which its provisions and institutions can respond, as threats to the constitutional order, before it considers them as crimes for which individuals can be prosecuted and punished in the judicial system.
Section Three of the Fourteenth Amendment was written to disqualify potentially thousands of oath-breaking Confederates whom the federal government in the aftermath of the Civil War had no intention of prosecuting under any criminal law. It could have prosecuted them for treason, and not just the oath-breakers but all Confederates. But it did not, and with good reason—for the sake of peace after Lee’s surrender at Appomattox Court House. What the Reconstruction Congress was determined to do was to prevent the subset of Confederates who had previously sworn an oath to the Constitution from holding any future office under it, unless the disqualification was lifted by a congressional supermajority.
If that generation did not insist on a criminal conviction as a condition of disqualification, neither should we.
If criminal conviction is unnecessary, and Section Three is self-executing without further legislation, then who is to execute its terms by determining that someone is disqualified?
Anyone in a responsible position for administering an election of qualified candidates must decide who is qualified to be on the ballot. And an insurrectionist who previously took an oath to the Constitution is disqualified—just as is anyone who fails to meet age, citizenship, or residence requirements. (Similar considerations of inclusion and exclusion would govern those who are responsible for the appointment of others to state or federal office.) This means that a state elections official, such as a secretary of state, or a state court with a case properly before it (which can depend in part on relevant state law), is called upon to be an “enforcer” of this constitutional requirement. The complaint that “random state judges” or “petty state election officials” are making a determination of Trump’s ineligibility for office has no merit. Every legislator and officer of government, state or federal, takes an oath to the U.S. Constitution, including to the terms of Section Three. Subject to review by any higher authorities or courts to which they must answer, those officers are doing their job by keeping an insurrectionist off the ballot in their jurisdiction.
But isn’t Trump, or any other person who is putatively an insurrectionist, owed some kind of due process in this determination?
The due process clauses of the Fifth and Fourteenth Amendments guarantee that we will be given a fair hearing in any matter where our “life, liberty, or property” is at stake. There are precedents for treating the occupancy of an office, or appointment to it, as a species of property we cannot be deprived of without due process. So, too, the franchise, once enjoyed, can only be taken from us with due process. Eligibility for office is another matter; it is not altogether clear how a presumptive “possession” of eligibility exists, or what due process is called for in a judgment that one is ineligible.
Assuming for the sake of argument that some degree of due process is warranted, it would not be the stringent due process that must be followed in order to punish a crime. As we’ve seen, the “insurrection” that results in disqualification is not a criminal offense. So the due process that is called for in this context is fully satisfied by the ability of candidates for office, political parties, and interested voters to challenge judicially the determination of election officials one way or the other. This lighter burden than the criminal law’s “proof beyond a reasonable doubt” would be accompanied by whatever deference is normally given to election officials as fact-finders under existing legal norms governing their responsibilities.
In the present case, then, with appeals and judicial review of disqualification findings, Donald Trump is getting all the due process the Constitution demands.
With the Colorado case heading to the Supreme Court—and with other states’ determinations perhaps beating a path there as well—what norms should govern the Court’s deliberations? Isn’t “judicial restraint” called for here?
Judicial restraint, as its most eloquent advocate, James Bradley Thayer, explained in 1893, calls on the Court to defer to any interpretation of the Constitution, within reason, that results in a holding in favor of the constitutionality of an act of Congress. With some adjustment for less stringency, this norm holds true for the acts of state legislatures as well. With respect to the acts of executive branch officials, federal or state, there is some call for deference to their constitutional judgments within the ambit of their authority. Such norms are healthy ones for a judiciary that wishes to steer clear of discretionary political conduct and hew to matters of law.
Here there is no federal legislation on the subject—nor need there be, as we’ve seen. And on the meaning of Section Three, there can be no binding state legislation. So its meaning is a kind of open question. It may be appropriate for the justices, as reviewers of others’ exercise of their constitutional responsibilities, to give the benefit of the doubt to the determinations of state election officials and state courts on Trump’s disqualification.
But not too much benefit of the doubt. Already there are conflicting determinations in different jurisdictions, and the Court ought to resolve such conflicts. This being a genuine case of first impression as well, concerning a putatively insurrectionist former president seeking to return to that office, one could argue that the presumption should run the other way—that the Court should presume Trump is qualified until it is shown that he is not.
Yet certainly no heavy presumption in the candidate’s favor is called for. This, I think, would misconceive the meaning of judicial restraint. For we would not entertain a heavy presumption in a candidate’s favor where other, simpler defects of qualification are concerned, of age, citizenship, residence, or the fact of having already served two terms as president. Moreover, since the disqualification owing to insurrection on the part of an oath-taking officer can be lifted by a vote of two-thirds of each house of Congress—a “re-qualification” that is not permissible where any other eligibility norms are concerned—the justices can be confident that the legislature can rectify a serious miscarriage of justice.
Hence, I would counsel that the justices proceed with very little, if any, presumption in favor of a candidate’s eligibility.
Now to what seems to me the most difficult issue: the combined factual–legal question of Trump’s conduct.
What was Donald Trump’s objective on, and in the days leading up to, January 6, 2021, and how did he pursue it?
It was clear by the end of the week in which the 2020 presidential election was held that Trump had been defeated by Joe Biden. As we now know, this was repeatedly made clear to Trump himself by many of those in his inner circle, including Attorney General William Barr. Trump nonetheless was determined to remain in office on the pretext of a “stolen” election. That is to say, he sought to displace—or overthrow—the lawfully constituted authority of the incoming president, and to seize power after losing the election. Such displacement or overthrow, a seizure of power in defiance of the law, had all the elements of “insurrection or rebellion” save, arguably, one: the employment of force or violence. (Baude and Paulsen argue that even a nonviolent “bloodless coup” would qualify, but there is no need to consider that under the circumstances.)
The omission was supplied on January 6, the day a joint session of Congress met to tally the electoral votes in the presidential election, when Trump spoke to a rally of his supporters at the Ellipse, instigating the violent mob invasion of the Capitol for the sake of preventing the official proceeding over which his own vice president, Mike Pence, presided. Any outcome other than the congressional ratification of Biden’s electoral victory would have benefited Trump—either Pence’s bald declaration that Trump had won with the votes of “alternate electors,” or a freezing of the process while swing states “reconsidered” their electoral results, or even an indefinite forestalling of any result at all thanks to the continual objections of Trump allies on Capitol Hill. The mob attack on the Capitol was Trump’s leverage for staying in office by any means necessary. The aim was to prevent a Biden presidency.
The whole effort may be said to have been doomed to fail—though any citizen observing the events of that day experienced in real time the uncertainty that Trump might just pull it off. But even a pathetically doomed insurrection, confined in time, space, and numbers, is still an insurrection. The Civil War was larger in every dimension. January 6 differed in degree but not in kind. Unless, that is, we recall that the attempted secession of the “Confederate States” left Abraham Lincoln in uncontested possession of the presidency of the United States, or what would have remained of it. Trump, unlike Jefferson Davis, wanted the whole loaf, not a half of it.
If there was indeed an insurrection that day—as some courts have already determined there was—did Trump “engage” in it as Section 3 requires? He did not join the mob at the Capitol (though there has been some testimony that he wished to do so). Is incitement of others to undertake an insurrection “engaging” in it for purposes of the disqualification provision?
The editors of National Review quote Attorney General Henry Stanbery’s 1867 opinion on Section Three that engaging in insurrection would require “active rather than passive conduct.” They do not, however, quote the immediate sequel in which Stanbery says that “persons may have engaged in rebellion without having actually levied war or taken arms,” and that “any overt act for the purpose of promoting the rebellion” would suffice. Could speech be such an overt act? Stanbery thought so, saying later in the same opinion that “when a person has, by speech or by writing, incited others to engage in rebellion, he must come under the disqualification.”
Trump’s speech on the Ellipse was the proximate cause of the Capitol invasion. If his incitement was not an engagement in the insurrection, then we confront the absurd injustice of punishing members of the mob while leaving their “leader from the rear” unpunished. It was Trump’s purpose to achieve—by fraud if possible, by force if necessary—what he had failed to achieve in the November election. He was the “but for” cause of the insurrection—calling it into being, setting it on foot, and standing uniquely to benefit from it.
After the failure of the mob’s attack to win any more than several hours’ delay in the electoral tally—though with several deaths and thousands of injuries resulting—the Congress in the wee hours of January 7 ratified President Biden’s election. It thus put its own seal on the proposition that Trump’s pretensions to having truly been reelected—but having his victory stolen from him—were contrary to fact and contrary to law. In the weeks that followed, after the House impeached Trump (a second time) for his “incitement to insurrection” on January 6, the Senate failed to reach the two-thirds supermajority to convict him. But this was not a finding that he was guiltless. Some senators voting for acquittal thought that Trump, now out of office, could not properly be subjected to impeachment. Some thought that his fate could now be left to the criminal justice system. Some were simply Trump’s political allies, and as in every presidential impeachment, both high and low politics played a role in the outcome.
Ever since January 6, Trump has repeatedly claimed that he, not Biden, should be the present occupant of the presidency—contrary to all the judicial decisions that went against his claims of fraud, and contrary to that early morning vote on January 7. He is, in short, a continual and unrepentant insurrectionist, in will if not in deed.
But one more legal question is important to answer.
Was Trump’s January 6 speech on the Ellipse protected by the First Amendment?
No, for two non-overlapping reasons. First, as Baude and Paulsen argue, the Fourteenth Amendment, coming some eighty years after the First, should be understood to control or to “satisfy” (their word) the terms of the earlier provision. That is, conduct or speech amounting to “insurrection or rebellion” under Section Three—including incitement to such insurrection—would simply be unprotected by the First Amendment, which has itself in some degree been “amended” by the Fourteenth. As we’ve seen, this was the view of the attorney general while the amendment was being ratified.
Second, they argue in the alternative—and the Colorado court reasons similarly—that even if the First Amendment is unaffected by the Fourteenth, Trump’s speech on January 6 is a culpable incitement to insurrection. Even the stringently pro-free-speech standards of Brandenburg v. Ohio (1969) permit the prosecution of speakers who directly incite imminent lawless conduct. In this case, we did not have merely imminent lawless conduct; we had immediate, actual lawless conduct as a consequence of Trump’s speech. Under the First Amendment, it could be criminally prosecuted.
Here, of course, we are not even discussing the prospect of prosecution and punishment for Trump’s speech, nor (as we’ve seen) must we. Only his disqualification is at issue. If Brandenburg would not inhibit his prosecution, it cannot stand in the way of his disqualification.
From the norms of law, we can turn finally to more purely political considerations, the first of which is:
Isn’t it undemocratic for election officials and judges to rule that the leading candidate for the presidential nomination of one of our two major parties, for whom about half of the electorate may want to cast its ballots, is disqualified by his past actions?
The framers and ratifiers took the steps they did in Section Three precisely because former Confederates, including rebels who had previously sworn an oath to the Constitution, might win election to the Congress—maybe even the presidency—or be appointed to other offices. Section Three was not written to prevent service in office of people who haven’t a chance of being elected anyway. It is precisely because Trump is the leading candidate for the Republican nomination that enforcing the disqualification he has brought on himself by his actions becomes both important and urgent. An oath-breaking insurrectionist with many followers is the threat Section Three was written to address.
It is bizarrely beside the point to complain that such disqualification is “undemocratic.” The Constitution defines the boundaries of our democracy by determining whom we may elect and appoint—by specifying qualifications for office. Section Three has lain dormant for a long time because, since Reconstruction, our country has not been much plagued with the problem of insurrection. But it is not a dead letter, and its terms are not confined to the fallout of the Civil War that ended almost 160 years ago. The sleeper awakens to defend the Constitution.
But attacks on Donald Trump in the name of the rule of law—impeachments, lawsuits, criminal prosecutions, now disqualification efforts—seem only to strengthen him, to give his followers resolve, even, perhaps, to gain him new followers. Shouldn’t his foes just drop all the legal maneuvers and work on defeating him electorally?
This is probably the best case for doing nothing—no disqualification, no independent counsel prosecution, no Georgia prosecution. Trump’s followers do seem to see every legal howitzer aimed at him as proof that he somehow “fights for them,” and they, in turn, will defend their champion. (It has even been suggested that the effort to disqualify Trump is a maneuver designed to solidify his support in the GOP, the supposition being that Democrats would rather President Biden faced Trump than any other Republican candidate. This strikes me as speculative—but I have never been all that interested in people’s ulterior motives for doing the right thing.)
The proper reply to all this is that where the requirements of the Constitution and the rule of law are concerned, and responsible decision-makers are called upon to defend those requirements as expressions of neutral principle giving our democracy its distinctive shape, questions like “What will voters do if we do X?” are the wrong ones to ask.
Certainly, such matters cannot matter to judges. The country is divided. Many people support Donald Trump, and many revile him. Whatever is decided on his eligibility, or his criminal culpability in federal and state prosecutions, large numbers of people are going to be very unhappy. There may even be violent reactions, especially (I’m sorry to say) if things go badly for Trump. Even if the Supreme Court unanimously held Trump to be disqualified, with Clarence Thomas writing the opinion, large numbers of Americans would not accept it. Conversely, if a unanimous Court held for Trump with Sonia Sotomayor writing the opinion, many citizens would nonetheless be upset.
The point is, “What bad things will other people do if I do the right thing?” is a question any judge should be ashamed to consider relevant. The justices of the Supreme Court might well have had such questions cross their minds in the days when they were considering the Dobbs decision that overruled Roe v. Wade (especially after the draft majority opinion was leaked). To their credit, the majority did the right thing anyway.
That is all anyone can ask of them now. Do the right thing by the Constitution, and trust the political order it created to see us through the maelstrom to come. When there’s trouble every way you turn, the only way out is through. Right now, the way through is a principled decision that Donald Trump, on January 6, 2021, disqualified himself from any future office.
Public domain image by Jamelle Bouie and available on Wikimedia Commons.