Who will step up and say so?
It’s 4 a.m. Not another car in sight. No headlights in the distance. The light is red and you’re in a rush to get to the airport. You run the light. It’s against the law but there’s no one to enforce it. Is it still the law?
That, essentially, is what scholars of the Constitution, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, ponder in their paper examining Section Three of the Fourteenth Amendment initially passed to prohibit Civil War participants from holding office. It reads in full:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, un-der 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.
Baude tells the New York Times that in their judgment, “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.”
The Constitution is the supreme law of the land. This provision is no less the law than the requirement that a president be born in the U.S. and 35 years old. It requires no action by Congress or the courts to make it so. It just is, they argue in 126 pages.
What it lacks is someone to enforce it. “Who has the power and duty to do this?” they ask and answer: “anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitution’s other qualifications.”
These actors might include (for example): state election officials; other state executive or administrative officials; state legislatures and governors; the two houses of Congress; the President and subordinate executive branch officers; state and federal judges deciding cases where such legal rules apply; even electors for the offices of president and vice president.
This includes state bodies or officers obliged sometimes an oath mandated by the U.S. Constitution “to act consistently with the requirements of the Constitution in the discharge of their duties.”
The Times adds:
Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the article “a tour de force.”
But James Bopp Jr., who has represented House members whose candidacies were challenged under the provision, said the authors “have adopted a ridiculously broad view” of it, adding that the article’s analysis “is completely anti-historical.”
(Mr. Bopp’s clients have had mixed success in cases brought under the provision. A state judge, assuming that the Jan. 6 attacks were an insurrection and that participating in them barred candidates from office, ruled that Representative Marjorie Taylor Greene, Republican of Georgia, had not taken part in or encouraged the attacks after she took an oath to support the Constitution on Jan 3. A federal appeals court ruled against Representative Madison Cawthorn, Republican of North Carolina, on one of his central arguments, but the case was rendered moot by his loss in the 2022 primary.)
A federal appeals court ruled that Section 3 applies nonetheless.
Thus, “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,” Calabresi said. Officials who refuse to act could be sued.
But have Trump or other elected officials engaged in an insurrection or rebellion? Or given aid or comfort to those who did? Trump supporters insist the ransacking of the U.S. Capitol was not an insurrection. Baude and Paulson argue otherwise.
“It is notable that more people died, and many more were injured, as a result of the January 6, 2021 attack on the Capitol than died or suffered injuries as a result of the attack on Fort Sumter,” they write, “and arguably exceeded in their seriousness, the events of the Whiskey Rebellion, Fries’ Rebellion, and other more limited historical insurrections.”
The act conferring congressional gold medals on four members of the United States Capitol Police for their actions that day specifies, “On January 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building and congressional office buildings and engaged in acts of vandalism, looting, and violently attacked Capitol Police officers.” Other findings including the impeachment charges brought against Trump over January 6 concur. But applying the term rebellion, they admit, “is not a perfect fit.”
As for Trump’s participation. they argue, his actions and failure to fulfill his duty that day (which they review in detail) render him culpable (my italics):
The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. 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.
Trump is not the only one Section 3 renders ineligible for office. “These include government lawyers, executive branch officials, state office-holders, and even members of Congress.” Those might include members who “who provided planning, encouragement, assistance, or other material support to those who rose up on January 6.”
Citizens at any level of government who have taken an oath to uphold the Constitution have an obligation to act when the issue of eligibilty presents itself, the pair conclude. (Just as election officials did when they refused Trump and Co. entreaties to “find” votes and overturn the 2020 election results.)
It is wrong to shrink on the pretext that some other officials may or should exercise their authority—as if one’s own constitutional obligations cease to exist if others fail to act. And it is wrong to shrink from observing, and enforcing, the Constitution’s commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, or resentment, or opposition, or retaliation. The Constitution is not optional and Section Three is not an optional part of the Constitution.
The courts, too, get no waiver from ruling on Section 3 questions as “political” matters. “There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial.”
Good luck getting the Roberts court to uphold its responsibilities. It cannot even uphold its own ethical standards.
Who else will step up to enforce Section 3 and face the death threats from the Trump cult?
