In the aftermath of the Civil War, the Constitution was amended to disqualify from office those political leaders who had betrayed their oath and “engaged in insurrection or rebellion” against the United States.
Many historians believed that provision — Section 3 of the 14th Amendment — became a dead letter after Congress adopted amnesty acts for ex-Confederates in 1872 and 1898. The latter declared the “disability imposed” by Section 3 “is hereby removed.”
But some law professors who have delved deeply into the history of that era say that view is wrong.
“Despite its long slumber, Section 3 … is alive and in force,” and it could have a major impact on next year’s election, argue law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, both well-regarded conservatives.
In a 126-page law review posted last month, they put a new focus on the Constitution’s response to the nation’s greatest insurrection and significantly raised the odds that the Supreme Court will be confronted with the claim that former President Trump, the Republican front-runner for 2024, is legally disqualified from holding office.
Baude and Paulsen are originalists who believe the Constitution’s terms should be interpreted in line with how they were understood at the time of their adoption. They say the word “insurrection” was understood to refer broadly to the concerted use of force or pressure to obstruct or overthrow the authority of the government.
“It sweeps in a broad range of conduct attacking the authority of the United States,” they wrote.
They also argue that enforcement of the disqualification clause does not depend on Congress or the Justice Department. Instead, they say this power rests with the hundreds of state, county or federal officials who can determine whether a candidate is eligible to hold an office and whose name may appear on the ballot.
“Taking Section 3 seriously means that its constitutional disqualifications from future state and federal office holding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others,” they say. Their argument could extend to challenging senators who offered support for the Jan. 6 insurrectionists.
Because of the sheer number of state attorneys and election officials, its likely in the year ahead that there will be a challenge to Trump’s eligibility. And if so, it would not take long for a such a claim to be appealed, first to a federal court and not long after, to the Supreme Court.
The justices are not likely to rule on such a claim if they can avoid doing so. They may have little choice, however, if a federal judge or a state supreme court were to decide Trump was ineligible to hold office in the future and cannot appear on the ballot.
Washington attorney Adam Unikowsky, a former Supreme Court clerk for Justice Antonin Scalia, wrote a lengthy analysis last week on how such a claim may fare in the courts. He said judges, if faced with the question, would be hard pressed to explain why Trump’s actions do not qualify as engaging in an insurrection.
“Is the Supreme Court actually going to disqualify Trump? In my opinion, probably not, but there’s a non-trivial chance that it will,” he wrote. “In my view, contingent on Trump continuing to be a candidate for President, there is a 10% chance that the Supreme Court will hold, prior to the 2024 election, that Trump is constitutionally ineligible.”
Rep. Adam B. Schiff (D-Burbank), who led a House impeachment of Trump, agreed the former president should be disqualified by law.
“I think it is a valid argument,” he said Sunday on MSNBC. “The 14th Amendment, Sec. 3, is pretty clear: If you engage in acts of insurrection or rebellion against the government or you give aid and comfort to those who do, you are disqualified from running. It doesn’t require that you be convicted of insurrection, it just requires that you have engaged in these acts.”
The outcome depends on the high court, he said.
“I think this will be tested when [a state] secretary of state either refuses to put him on the ballot or puts him on the ballot and is challenged by a litigant. I would imagine it will go up to the Supreme Court, and that’s the big question mark through all of this, which is: What will the Supreme Court do?”
Other legal experts question the notion that judges could deprive millions of voters their right to choose their favored candidate.
Stanford Law professor Michael McConnell is a conservative and a friend of Baude and Paulsen, but said he strongly disagrees with them on this issue.
He said Congress could have — and should have — disqualified Trump from further office by convicting him after his second impeachment trial in February 2021 for inciting an insurrection. But it takes a two-thirds vote of the Senate to convict, and all but seven of the Republicans voted to acquit Trump. The vote was 57-43 in favor of conviction.
McConnell also said the Justice Department under the Biden administration could have charged Trump with inciting an insurrection, but did not do so. A federal law (18 U.S.C. 2383) make it a crime to incite, assist or engage in insurrection, but special counsel Jack Smith instead charged Trump with obstructing an official proceeding and defrauding the United States.
The special counsel may have thought it would be hard to prove beyond a reasonable doubt that Trump intended his followers to use force and violence to break into the Capitol rather than to protest outside.
McConnell said it is “significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute.”
He also believes it would be a mistake to entrust state officials with deciding who is eligible to run for president.
“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,” he said. “If abused, this is profoundly anti-democratic.”
However, Baude and Paulsen believe the Constitution is clear and Trump violated it.
“January 6 was an insurrection,” they wrote. “There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it ‘stolen’ and ‘rigged'”; and that he tried to enlist state officials to change the vote count and urged state legislators to support him despite his loss.
When that effort failed, they wrote, “Trump assembled a large crowd to march on the Capitol and intimidate Congress and the Vice President into complying with his wishes and thereby prevent the official counting of the votes of electors confirming Trump’s defeat.”
“The bottom line is that Donald Trump both ‘engaged in insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct… He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.”
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This story originally appeared in Los Angeles Times.