Of Insurrections, Presidents, and the Utter Failure of Constitutional Law to Address the Real Issues
Dedicated to Retired Judge Dick Posner
Two of America's most prominent conservative constitutional law professors, both self-described originalists, Will Baude and Michael Paulsen, have penned a 126-page opus explaining why Section 3 of the Fourteenth Amendment disqualifies on its own terms with no enabling legislation Donald Trump and likely many others from holding office under the United States or any state. Section 3 says the following:
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.
Everyone agrees that this provision was meant to deal with the Confederacy but is written broadly to apply to other insurrections and rebellions. That is where the agreement ends. In their article, Baude and Paulsen cover every angle, dissect every word, meet every counter-argument, and apply their legal conclusions to Trump and January 6th. Their textual and historical analysis is rigorous, sophisticated, and careful. I would love for them to be right.
What the authors do not do is discuss whether it is a good or bad thing for America that Section 3 works the way they say it does and therefore disqualifies the clear frontrunner for the GOP Presidential nomination from holding office. To them, the answer is in meaning and history, not consequences and results. And that, in a nutshell, is what is so terribly wrong with constitutional law today.
Before we begin, I want to make my priors clear: I dislike Donald Trump more than any other public figure I have come across in my 65 years on this planet.
The authors reach four crucial and contestable conclusions about Section 3:
1) Section 3 is a fully operative constitutional provision today;
2) Section 3 is self-executing: the disqualification is constitutionally automatic whenever its terms are satisfied, and no state or federal law is necessary for disqualification;
3) Section 3 supersedes or is reconcilable with other constitutional provisions, such as the First Amendment, the Bill of Attainder clauses, and the Due Process clauses.
4) Section 3 has a broad and expansive sweep. It
disqualifies from future office-holding persons who 'engaged in'—an expansive and encompassing term connoting many forms of participation in or active support of—a broad swath of activity covered by the terms 'insurrection or rebellion' or the giving of 'aid or comfort to 'enemies' of the nation or its constitutional order. It applies to a broad swath of civilian, military, and legislative office holders who swore oaths of fidelity to the Constitution, and it disqualifies such persons from holding in the future any of an extraordinarily broad swath of public offices.
Leaving aside the imprecise nature of a "broad sweep," I am inclined to agree with the authors' conclusions about how Section 3 disqualifies Trump. But that is mostly because the text allows for that result and I think our country would be much better off without Donald Trump in our politics (as discussed below, however, I may be wrong about that). It is not because the text or original meaning of Section 3 clearly supports these views or because no one could argue to the contrary. In fact, most of the authors' legal conclusions are debatable based on text, history, and precedent.
And yet, throughout the article, the authors make the same mistake the justices make every term. They treat contestable arguments and debatable historical accounts as if they are not contestable and not debatable. There is some humility in this article, but not nearly enough. As Professor Aaron Tang has observed about the justices, if "today’s justices were . . . humble, they would freely admit that sometimes, especially in the difficult cases that divide our society, they cannot find a clear answer." The same is true with many of the issues raised by Section 3, but you wouldn't know that from reading this article.
I will focus on two examples to illustrate the problem. Then, I will explain why this article exemplifies how badly we do constitutional law in this country.
The authors devote considerable space to the possible conflict between the First Amendment and Section 3, which they call "an ominous question." They recognize that that there may be a blurry line between a person's political speech criticizing the government and his taking part in an insurrection. The Trump speech on January 6th is a perfect example of this problem. Their solution is first we try to reconcile conflicting constitutional amendments, which I think everyone agrees is the right place to start. But what if we cannot? What if there's a true conflict between free speech principles and Section 3 (the article helpfully provides real-life examples of this problem). What then?
The authors' answer is dogmatic: the First Amendment must give way to Section 3 because the latter came later in time. That rule of law is well-founded: when two statutes or constitutional provisions truly conflict, the later in time prevails. But that rule is much harder to apply to Section 3 and the First Amendment than the authors admit.
Although the First Amendment was indeed ratified long before Section 3, on the date Section 3 was adopted, the First Amendment simply did not apply to the states. The First Amendment only refers to Congress. The Supreme Court held in the 19th century that the Bill of Rights did not apply to the states, and it wasn't until 1925 that the Court applied the Amendment to the states because of its incorporation through the due process clause of the 14th Amendment. Before 1925, the states were free to abridge speech in any way they wanted consistent with state law.
Many thoughtful legal scholars believe that unless a federal statute is involved, it is the Fourteenth Amendment, not the First Amendment, that protects free speech. So which provision really came first: Section 3 or the First Amendment as applied to all cases that do not involve Congress? A legitimate answer is that they came at the same time, which means the authors' trump card when it comes to conflicts between the two provisions, that Section 3 came after the protection of free speech, is messy and contestable. It is so messy that in the landmark Bruen gun case from 2022 the majority raised the issue of whether gun rights as applied to the states come from the Second Amendment or the 14th Amendment and explicitly ducked the question. What the authors view as a slam dunk is actually extremely difficult.
That problem leads to my second example. In 1869, Chief Justice Chase, sitting as a circuit judge, specifically held, contrary to Baude and Paulsen's view, that Section 3 was not self-executing and that a federal law was required to disqualify someone from office. Finding the words of Section 3 less than precise, the major thrust of his reasoning, according to Baude and Paulsen, was that Chase thought disqualifying everyone in the South who had taken part in the rebellion would result in terrible consequences, violate the spirit of the Constitution, and could not have been intended by those who wrote and ratified Section 3. This case, In Re Griffin, according to the authors, "continues to cast a shadow over Section 3 today."
Baude and Paulsen then spend 14 law review pages and countless footnotes explaining why Chase was wrong on every point he made. Some of their arguments are strong and some are weak, but they don't change the fact that the Chief Justice of the Supreme Court almost immediately after Section 3 was adopted interpreted the provision in a way completely inconsistent with how the authors read it. And he did so because he found the consequences intolerable (every official act by the thousands of Southern government officials who participated in the rebellion would be called into question).
Chase's concern was legitimate, but the authors' response is essentially: so what?. The text says what it says. Except it doesn't, as even a cursory reading of Chase's opinion shows. Baude and Paulsen treat the opinion incredibly disrespectfully, which is somewhat hubristic, as they both claim to be originalists and Chase was actually there at the time. I have no doubt the authors would respond that we care about original meaning, not original intent (they say exactly that at the beginning of the article). But throughout the 126 pages, the authors use original intent repeatedly and, in any event, the intent of the ratifiers is often strong evidence of what the provision in question means.
One last thing about In re Griffin. One of Chase's main arguments was that if Section 3 was self-executing, it would violate other parts of the Constitution, such as the Due Process clauses, the Bill of Attainder clauses, and the ex post facto clauses. Notice Chase says nothing about free speech. That's because free speech as a judicially enforceable constitutional principle wasn't born yet and wouldn't be for another 50 years! That is more evidence that the free speech law we apply today to all cases that don't involve a federal statute comes from the 14th Amendment and does not predate Section 3, as the authors claim.
The examples I just gave are just two of many that show the authors' dogmatism on the complicated issues surrounding Section 3 is not well-founded. They may be right, but they may be wrong. Conservative scholar Michael McConnell, who says he has "no truck for Trump," disagrees with the authors on a number of their legal conclusions. McConnell, also an originalist, also makes a strong prudential argument against Baude and Paulsen's conclusions:
We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic.
What Baude and Paulsen clearly missed, which Professor McConnell and Chief Justice Chase did not, is the most important question regarding the legal issues surrounding Section 3: what are its consequences? How will the authors' interpretations play out in the real world? Is it a good idea to apply Section 3 to President Trump specifically and the events of January 6th generally? Will Section 3 be badly abused in the future to people who, unlike Trump, do not deserve to be disqualified from office? There are no clear answers to those questions but those are the questions we should be debating (as McConnell did).
Many lawyers and law professors will obviously respond that it is not a judge's (or law professor's) job to ask such questions and reach tentative answers. Their job is to look at text, history, and precedent and come up with the right or best answer. But that is just not how constitutional law works in this country.
The constitutional law of the Second Amendment, abortion, affirmative action, campaign finance regulation, and state sovereign immunity from suit in federal courts have all changed dramatically over the last 35 years, not because the justices who made those changes discovered new historical evidence or the text changed but because the justices' perceptions of right and wrong, fair and unfair, and the proper role of judges in our country changed. In all of the above-mentioned areas, policy considerations were either at or just below the surface. The substantial differences between the Warren Court and the Roberts Court have nothing to do with text or history and everything to do with the justices' personal values and evaluations of consequences. Text and history are a sideshow in most constitutional law cases.
Bush v. Gore provides an excellent example of how we would all be better served if justices and law professors focused more on facts and consequences and less on foolish formalisms. It is a well-accepted idea that the equal protection analysis conducted by the justices in that case reversed the justices' normal partisan preferences on equal protection with all the conservatives giving the clause a broad reading and two liberals giving it a narrow reading. More importantly, the justices' interference in that election may well have changed the course of human history (just ask the people of Iraq). That interference was not persuasively grounded in text, history, or precedent. The merits and jurisdictional issues were complex, contestable, and new.
Retired Judge Richard Posner, who had no use for legal formalisms, believed the case was decided correctly because America needed an answer and he feared the chaos and confusion would be very dangerous if the Court let the case go until Florida could finish the recount. Whether you agree with that analysis or not, and I do not, we are talking about deciding an incredibly close presidential election. Pragmatic on-the-ground concerns are completely appropriate for this kind of monumental case, especially when the legal issues are blurry without persuasive answers. If he were able today to respond to the Baude and Paulsen article, he would say something like, "126 pages and not a word about the consequences and implications for our politics and our country of disqualifying Trump? That's absurd."
Professors Baude and Paulsen have strong incentives to limit their analysis to text and history, as both men are diehard originalists (which they would admit) as well as hardcore formalists (which they may not agree with). They also are playing the game the Supreme Court is most likely to parrot in whatever opinions it might issue on these hard questions. The authors will likely get cited if the Court agrees with them (or by the dissent if the Court disagrees). But what they will be cited for will not be the proximate cause or causes of the justices' final decisions. Those causes rest in policy and politics, not text and history, and our collective inability to be honest about that reality is why constitutional law is now and has for a long time failed our country. We mask hard political choices with misleading, unpersuasive, and ridiculous nods to epochs long ago and imprecise text that rarely resolves any litigated issue.
What would have been "lit" (as the young folks like to say) would have been 126 pages by Baude and Paulsen on the practical consequences of applying Section 3 or not to our present circumstances. But instead of fire we get smoke that hides instead of illuminates the real issues surrounding Section 3 of the 14th Amendment and whether the former President of the United States may ever hold office again.