Two Conservative Scholars Ready a Call To Disqualify Trump Under the Fourteenth Amendment on the Grounds That January 6 Was an ‘Insurrection’ 

In a draft law review article seen by the Sun, law professors call disqualification provision ‘ready for use.’

AP/Sue Ogrocki, file
President Trump at a campaign rally on July 29, 2023, at Erie, Pennsylvania. AP/Sue Ogrocki, file

Section Three Lives. That is the cry of two of the legal academy’s luminaries endorsing the use of Section 3 of the 14th Amendment to disqualify President Trump from future office. They are preparing for publication an article that could animate efforts to effect what even a criminal conviction cannot — end the political career of America’s 45th president. 

An early draft of the paper, “Section Three Lives! The Constitution’s Disqualification of Oath Breaking Insurrectionists,” has been seen by the Sun. Edits are ongoing, one of the authors, William Baude, explains. He tells the Sun that they plan to release a final edition in the coming days. The paper was discussed in recent days on a podcast, “America’s Constitution,” hosted by another law professor, Akhil Reed Amar.   

The significance of the article, in any event, is likely to be that it comes from two widely admired conservatives, Mr. Baude of the University of Chicago and Michael Paulsen of the University of St. Thomas. The two advocate using a section of the 14th Amendment  that was largely dormant during the 20th century.  

It is likely that publication of the article would lend a conservative patina to the argument that the Disqualification Clause is not merely a Civil War fossil but a contemporary cudgel. That is a brainstorm that has thus far been undertaken mainly by attorneys on the left.

Now, Messrs. Baude and Paulsen are preparing to argue that “Reports of Section Three’s demise are greatly exaggerated.” They maintain that the provision is of  “direct and dramatic relevance today — a vital, fully operative rule of constitutional law with potentially far-reaching contemporary real-world consequences.”

The essay’s epigraph, from the left wing historian Eric Foner’s book “The Second Founding: How the Civil War and Reconstruction Remade the Constitution,” makes the counter argument, asserting that “Section 3 has long since faded into history.”

What the 14th Amendment’s third section ordains is that no person shall “hold any office” who “having previously taken an oath” shall have “engaged in insurrection or rebellion” or  “given aid or comfort” to America’s enemies.

The article reckons that “Not since the Civil War” — in whose wake the 14th Amendment was adopted — “has there been so serious a threat to the foundations of the American constitutional republic” as that posed by the events of January 6, 2021. They call the efforts to keep President Trump in office an “attempted political coup d’etat.”

Against this backdrop — and Special Counsel Jack Smith’s criminal prosecution of Mr. Trump for alleged efforts to overturn the election — Messrs. Baude and Paulsen assert that Section Three is “not a dead letter” and is “no less part of the Constitution than the other provisions of the Fourteenth Amendment.” 

Crucially, they argue that it is “constitutionally automatic” and “requires no legislation or adjudication to be legally effective.” The draft being circulated puts it this way: “No prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands.”

The essay asserts that “Section Three is ready for use” and that “its disqualification, where triggered, just is.” It even, it ventures, “supersedes the First Amendment to the extent of any true conflict,” such as the events at the Capitol on January 6.  

It is not hard to imagine, though, that a person whom officials attempt to disqualify could try to challenge the action in court. For one thing, President Trump has already been tried for incitement to insurrection in an impeachment process in the 117th Congress and was discovered by the Senate to be “not guilty.” The article gives weight to the “substantial majority” who voted to convict.

That paper, though, would land at a moment when the cause of disqualification appears to be lagging. Efforts to use the clause against Representatives Madison Cawthorn and Marjorie Taylor Greene were stymied at the ballot box and in court, and the push against Mr. Trump has stalled. Only one official, a county commissioner in New Mexico, has been constitutionally disqualified. 

“Section Three Lives!” calls for more, summoning “We the People” to “honor and vigorously enforce this important provision of our Constitution,” notwithstanding its “long slumber.” To begin with, there are “prominent candidates or officeholders” who are vulnerable to disqualification — “Former President Trump is one, but likely not the only one.” Also named are Mayor Giuliani and Senator Hawley, and, potentially, hundreds of lawmakers. 

Messrs. Baude and Paulsen aver that Mr. Trump’s “efforts to overthrow the election” comprise conduct that “plainly triggers the disqualification rule of Section Three.” While no federal court has found that the events of January 6 amounted to an insurrection, the scholars find it to be “quite clear that the specific series of events leading up to and culminating in the January 6, 2021 attack qualifies as an insurrection.”

The sages allow that the “events of January 6 itself — the attack on Congress and the Capitol — did not remotely rival in overall magnitude, or in sheer carnage, the experience of the United States Civil War.” They claim, though, 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.”

The review contends that January 6 “exceeded” the severity of the Fries’ Rebellion and “other more limited historical insurrections.” Thirty men were tried then, including three for treason. Those three were sentenced to be hanged, only to be pardoned by President John Adams.  

Professors Baude and Paulsen  endeavor to tie January 6 to the darkest chapter of America’s story. Their law review article  contends that “as the South’s secession, and the resulting Civil War illustrate, a bogus and unsuccessful constitutional theory does not turn an insurrection or rebellion into anything less than an insurrection or rebellion.”

The New York Sun

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