A constitutional crisis in progress
Legal scholars William Baude and Michael Stokes Paulsen argued a few weeks ago that Section 3 of the Fourteenth Amendment means “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”
No “legislation, criminal conviction, or other judicial action” is necessary to invoke the post-Civil War amendment. It is not a dead letter. What is required of citizens at any level of government who have taken an oath to uphold the Constitution is to declare Trump ineligible when the matter of his eligibility presents itself to them.
What made the Baude-Paulsen analysis more impactful was that it came from scholars associated with the conservative Federalist Society.
Now, J. Michael Luttig and Laurence H. Tribe, a respected conservative former federal appeals judge and an emeritus Harvard constitutional law professor, concur in The Atlantic:
Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.
The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.
Any attempt to disqualify Trump or others associated with the plot to overturn the 2020 election will face not only the famously litigious Trump in court but also his violence-prone supporters in the streets.
This is a constitutional crisis in progress. Or it may be.
As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer—or, for that matter, upon the failure to enforce Section 3 as required. When a secretary of state or other state official charged with the responsibility of approving the placement of a candidate’s name on an official ballot either disqualifies Trump from appearing on a ballot or declares him eligible, that determination will assuredly be challenged in court by someone with the standing to do so, whether another candidate or an eligible voter in the relevant jurisdiction. Given the urgent importance of the question, such a case will inevitably land before the Supreme Court, where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation. (Additionally, with or without court action, the second sentence of Section 3 contains a protection against abuse of this extraordinary power by these elections officers: Congress’s ability to remove an egregious disqualification by a supermajority of each House.)
The entire process, with all its sometimes frail but thus far essentially effective constitutional guardrails, will frame the effort to determine whether the threshold of “insurrection” or “rebellion” was reached and which officials, executive or legislative, were responsible for the January 6 insurrection and the broader efforts to reverse the election’s results.
The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process. For our part, we would pray for neither unrest nor violence from the American people during a process of faithful application and enforcement of their Constitution.
May whatever being(s) has the power to answer such a prayer be responsive.
This is a constitutional crisis in progress. Or it will be if any official empowered to declare Trump ineligible has the spine to say so.
Luttig and Tribe observe, “As recently as last December, the former president posted on Truth Social his persistent view that the last presidential election was a ‘Massive Fraud,’ one that ‘allows for the termination of all rules, regulations, and articles, even those found in the Constitution.’” They ask, “How could any citizen trust that [Trump] would uphold the oath of office he would take upon his inauguration?”
A little late for that question, isn’t it? I wrote in March 2016, “Next January, if Trump raises his right hand and swears to defend the Constitution, how can his left hand go on the Bible with his fingers crossed behind his back?”
The world has since seen what anyone paying attention then already knew: Trump is an inveterate liar, cheat, and criminal devoid of morals or character. He was then and is now unfit to “hold any office, civil or military, under the United States, or under any State.” Even without Section 3.
I wish I had faith that someone in authority has strength of their own character to declare Trump ineligible outside the pages of a newspaper or magazine, but in an elections office where it counts.
Update: Missed this segment on Saturday.
