The Union won the war, at least in theory. The Confederate Army was defeated, but the southern states carried on as if they hadn’t lost. Confederate officials continued to run things in the south, and black Americans, now freed from bondage—again, in theory—continued to be mistreated and denied their Constitutional rights. Lincoln had a plan to free the slaves, but how he planned to incorporate them into the larger society was murky at best. Then, he was assassinated.
The Union had been saved, but it continued to be torn apart. Southern states sent former Confederate officials—military leaders and politicians, including Vice-President of the Confederacy, Andrew Stephens—to Congress. It was an audacious move. The very people who had advocated for succession of the southern states and who had helped wage a bloody war against the United States, were now being sent to Washington to help lead the very country they had committed treason against. Something had to be done.
Republicans in Congress were outraged. They didn’t think that former Confederates should be anywhere near the seat of power. They responded by passing the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, known colloquially as the “Reconstruction Amendments.”
Section three of the Fourteenth Amendment spoke directly to what was happening in Washington. Republicans in Congress wanted to make sure that no Confederate officials—military or political—could hold office in the federal or state governments. Section Three reads:
“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.”
Two esteemed law professors, William Baude of the University of Chicago School of Law and Michael Stokes Paulsen of the University of St. Thomas Law School, contend that the Fourteenth Amendment, Section Three prohibits Donald Trump from even being considered to hold any state or federal office. And according to these two professors, the call isn’t even close.
What makes Baude and Paulsen’s contention all the more credible is that both men are well-regarded conservatives, and both are members of the Federalist Society, the conservative group behind the Republican’s push to stack the federal judiciary with conservative jurists. It’s hard to dismiss Baude and Paulsen’s argument as part of the “liberal agenda” when both men are firmly entrenched in the conservative movement.
The two legal scholars published their findings in the University of Pennsylvania Law Review. They spent 126 pages making their case, but their conclusion comes down to this one paragraph:
“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.”
Baude and Paulsen are not alone. Former federal judge and conservative legal scholar J. Michael Luttig, as well as progressive Harvard Law School professor Lawrence Tribe, recently published an article in The Atlantic agreeing with Baude and Paulsen. Their conclusion?
“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.”
I have heard some commentators talk about the need to file a lawsuit to exclude Trump from the 2024 Presidential ballot. However, that may not be necessary. According to Baude, Paulsen, Luttig, and Tribe, Section Three is self-executing, and it is not dependent on Trump being convicted of any wrongdoing before it can be used.
In other words, it is up election officials in each state to decide whether or not Trump should be allowed on the ballot. Secretaries of State in California, Massachusetts, and Maine have already begun investigations into whether or not Trump is disqualified from running for the presidency. Lawsuits to compel election officials in Colorado and Minnesota to remove Trump from the ballot have been filed. Republican Presidential candidate Asa Hutchinson has called on Secretaries of State to refuse to include Trump on the ballot. The idea is beginning to gain steam.
Of course, there are credible people who disagree with Baude, et al. Conservative commentator and Never-Trumper David Frum thinks the argument that Trump is disqualified from running for President is a fantasy. Former Assistant Attorney General for the Southern District of New York, Preet Baharara, as well as former AGA and head of the Drug Enforcement Administration, Chuck Rosenberg–both well-respected legal thinkers–don’t believe Section Three applies to Trump’s situation. But at the moment, there seems to be more legal experts that agree with Baude, et. al than don’t.
An important point that sometimes gets overlooked is that the Constitution sets other qualifications for those wishing to become President. For instance, anyone running for President must be at least 35-years old and must be a natural born citizen of the United States. Section Three is not a punishment. It’s simply a qualification that a candidate must meet in order to be allowed on the ballot. It is up to the election officials in each state to determine if each candidate is qualified to run for president.
So, what can we expect to happen? In a word, lawsuits. If a Secretary of State in any state excludes Trump from the ballot, you can expect Trump to challenge the decision in court. If a Secretary of State decides to include Trump on the ballot, you can expect a lawsuit from citizens of that particular state contending that Trump is unqualified to be on the ballot. Eventually, the Supreme Court will need to weigh in. And what will they say?
If I had to guess, I think the majority of the Court will agree with Baude and Paulsen’s assessment. I know that may seem counterintuitive since six of the Justices are conservative, and three of those Justices were appointed by Trump himself. Even so, I could see six, maybe even seven, of the Justices agree that under Section Three of the 14th Amendment, Trump is not qualified to run for the Presidency. I don’t expect Thomas or Alito to disqualify Trump. Gorsuch could go either way. I expect Roberts, Kavanaugh, and Coney-Barrett to side with the three liberal Justices to find that Trump does not meet the Constitutional qualifications to run for the Presidency of the United States.
No matter how this shakes out, it’s an interesting situation with extremely high stakes. Assuming Republicans choose Trump to be their candidate through the primary election process, there will be a lot of pressure on the various secretaries of state to either include or exclude Trump from the ballot. Lawsuits are certain to ensue, and it will be up to the Supreme Court—if they agree to take on the case—to decide if Trump is allowed to run.
I think our crazy political environment is about to get even crazier.
