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By J. Michael Luttig and Laurence H. Tribe for the Atlantic
As Students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.
via Atlantic
This protection, embodied in the amendment’s often-overlooked Section 3, automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.
The historically unprecedented federal and state indictments of former President Donald Trump have prompted many to ask whether his conviction pursuant to any or all of these indictments would be either necessary or sufficient to deny him the office of the presidency in 2024
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.
We were immensely gratified to see that a richly researched article soon to be published in an academic journal has recently come to the same conclusion that we had and is attracting well-deserved attention outside a small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of Management, whose encouragement inspired us to write this piece. The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.
Written with precision and thoroughness, the article makes the compelling case that the relevance of Section 3 did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision; that the provision was not and could not have been repealed by the Amnesty Act of 1872 or by subsequent legislative enactments; and that Section 3 has not been relegated by any judicial precedent to a mere source of potential legislative authority, but continues to this day by its own force to automatically render ineligible for future public office all “former office holders who then participate in insurrection or rebellion,” as Baude and Paulsen put it.
Among the profound conclusions that follow are that all officials who ever swore to support the Constitution—as every officer, state or federal, in every branch of government, must—and who thereafter either “engaged in insurrection or rebellion” against the Constitution or gave “aid and comfort to the enemies” of that Constitution (and not just of the United States as a sovereign nation) are automatically disqualified from holding future office and must therefore be barred from election to any office.
Regardless of partisan leaning or training in the law, all U.S. citizens should read and consider these two simple sentences from Section 3:
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 Fourteenth Amendment was promulgated and ratified in the context of postbellum America when, even after losing the Civil War, southern states were sending men to Congress who had held prominent roles in the Confederacy or otherwise supported acts of rebellion or insurrection against the United States.
The two of us have long believed, and Baude and Paulsen have now convincingly demonstrated, that notwithstanding its specific historical origin, Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified—as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.
Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” (Other scholars have relied on Chief Justice Salmon P. Chase’s poorly reasoned opinion in an 1869 case called In Re Griffin to support the contrary view. Baude and Paulsen decisively dismantle Griffin as a precedent.)
They conclude further that disqualification pursuant to Section 3 is not a punishment or a deprivation of any “liberty” or “right” inasmuch as one who fails to satisfy the Constitution’s qualifications does not have a constitutional “right” or “entitlement” to serve in a public office, much less the presidency. (For that reason, they argue that the section, although it does not entirely override preexisting limits on governmental power, such as the First Amendment’s ban on abridgments of the freedom of speech, powerfully affects their application.) Finally, the authors conclude that Section 3 is “expansive and encompassing” in what it regards as “insurrection or rebellion” against the constitutional order and “aid and comfort to the enemies” of the United States.
Baude and Paulsen are two of the most prominent conservative constitutional scholars in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans. Thus it is all the more significant and sobering that they do not hesitate to draw from their long study of the Fourteenth Amendment’s text and history the shattering conclusion that the attempted overturning of the 2020 presidential election and the attack on the Capitol, intended to prevent the joint session from counting the electoral votes for the presidency, together can be fairly characterized as an “insurrection” or “rebellion.” They write:
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.
At the time of the January 6 attack, most Democrats and key Republicans described it as an insurrection for which Trump bore responsibility. We believe that any disinterested observer who witnessed that bloody assault on the temple of our democracy, and anyone who learns about the many failed schemes to bloodlessly overturn the election before that, would have to come to the same conclusion. The only intellectually honest way to disagree is not to deny that the event is what the Constitution refers to as “insurrection” or “rebellion,” but to deny that the insurrection or rebellion matters. Such is to treat the Constitution of the United States as unworthy of preservation and protection.
Baude and Paulsen embrace the “idea that men and women who swore an oath to support the Constitution as government officials, but who betrayed that oath by engaging in or abetting acts of insurrection or rebellion against the United States, should be disqualified from important positions of government power in the future (unless forgiven by supermajorities of both houses of Congress).” To them, as to us, this will forever “remain a valid, valuable,” and “vital precept” for America.
Section 3’s disqualification clause has by no means outlived its contemplated necessity, nor will it ever, as the post–Civil War Framers presciently foresaw. To the contrary, 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.
The Baude-Paulsen article has already inspired a national debate over its correctness and implications for the former president. The former federal judge and Stanford law professor Michael McConnell cautions that “we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot … If abused, this is profoundly anti-democratic.” He also believes, as we do, that insurrection and rebellion are “demanding terms, connoting only the most serious of uprisings against the government,” and that Section 3 “should not be defined down to include mere riots or civil disturbances.” McConnell worries that broad definitions of insurrection and rebellion, with the “lack of concern about enforcement procedure … could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.”
We share these concerns, and we concur that the answer to them lies in the wisdom of judicial decisions as to what constitutes “insurrection,” “rebellion,” or “aid or comfort to the enemies” of the Constitution under Section 3.
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.
If donald trump were to be reelected, how could any citizen trust that he would uphold the oath of office he would take upon his inauguration? 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.”
No person who sought to overthrow our Constitution and thereafter declared that it should be “terminated” and that he be immediately returned to the presidency can in good faith take the oath that Article II, Section 1 demands of any president-elect “before he enter on the Execution of his Office.”
We will not attempt to express this constitutional injunction better than did George Washington himself in his “Farewell Address” to the nation, in 1796:
The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.
All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency …
However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines which have lifted them to unjust dominion.
Our first president may well have been our most prescient. His fears about “cunning, ambitious, and unprincipled men” have, over the centuries, proved all too well founded. But his even stronger hopes for the republic were not misplaced. Still today, the Constitution, through its Reconstruction Amendments, contains a safeguard that it originally lacked—a safeguard against the undermining of our constitutional democracy and the rule of law at the hands of those whose lust for power knows no bounds.
The men who framed and ratified the Fourteenth Amendment entrusted to us, “the People of the United States,” the means to vigilantly protect against those who would make a mockery of American democracy, the Constitution, the rule of law—and of America itself. It fell to the generations that followed to enforce our hallowed Constitution and ensure that our Union endures. Today, that responsibility falls to us. [Atlantic]
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