Section 3, Originalist Chaos, and Why Donald Trump Should Not Be Constitutionally Disqualified from the Presidency
Over the next year or so, numerous courts (and state election officials) are going to be asked to disqualify Donald J. Trump from being President again because he engaged in an insurrection and thus is ineligible under Section 3 of the 14th Amendment. Lawsuits have already been filed in Minnesota and Colorado seeking to keep Trump off the ballot in those states. In the next few weeks, I’ll be speaking at Stanford and the University of Minnesota on this issue. To prepare, I’ve read numerous articles by prominent law professors trying to ascertain the original meaning of Section 3.
After reviewing the current literature, it is quite clear to me that originalism cannot help us sort out the many legal questions surrounding Section 3 even if we wanted to use an exclusively historical and textual analysis. Instead, judges should focus on the here and now and apply Section 3's text according to contemporary needs and politics.
Although the question is close, I have reluctantly concluded that Trump should not be disqualified under Section 3 of the 14th Amendment, which provides 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.
When it comes to the disqualification of former President Trump, legal scholars have identified numerous issues that judges or state voting officials will have to answer. Here are just four of them (there are many more):
1) Does Section 3 apply to insurrections and rebellions other than the Civil War?
2) Is the Presidency an office of the United States for purposes of Section 3? If not, Trump cannot be disqualified from being President.
3) Does Congress need to pass legislation implementing Section 3 before it is used to disqualify President Trump and/or others for engaging in an insurrection? If so, Congress has not yet done so and Trump would not be disqualified.
4) As a factual matter, did Trump engage in an insurrection or rebellion? If not, none of the other issues need to be addressed.
The law professors who have analyzed these questions as a matter of text and history (as opposed to what is the best result all things considered) disagree strongly on almost every point. This chaos of historical analyses demonstrates that there are no easy answers to the questions above based on Section 3's original meaning.
The summary below of the recent literature is not comprehensive but is sufficient to support my twin conclusions that Section 3 must be interpreted according to today's politics, not those of 1868, and that neither state officials nor judges should disqualify Trump. In fact, I'd like to see Congress exercise its authority and preclude Trump's disqualification under the unambiguous last sentence of Section 3 ("Congress may by a vote of two-thirds of each House, remove such disability.").
Professors Will Baude and Michael Paulsen, both conservative originalists, fired the opening salvo on the recent debates surrounding Section 3 by concluding that: 1) the provision applies to events other than the Civil War; 2) it applies to the Presidency; 3) it is self-executing, meaning Congress does not need to pass enabling legislation; and 4) Trump's actions surrounding January 6 satisfy the definition of insurrection as used in Section 3. The authors conclude that Trump is already ineligible for the Presidency, though if he is kept off the ballot in any state he certainly could appeal that decision to a court of law. Their article is 126 pages of careful and detailed analysis based almost exclusively on what the authors claim is the original meaning of Section 3.
Not long after this article was made public, Professors Josh Blackman and Seth Tillman posted their 126 page opus coming to very different conclusions. Among other things, they question whether Section 3 is self-executing, whether Section 3 applies to the Presidency, and whether Trump's actions regarding Section 3 amounted to an insurrection. As to Baude and Paulsen's article, Blackman and Tillman conclude that the "theoretical defects and other errors in [the] article are not insubstantial, and they span multiple independent issues. And we see no sound basis for their article’s startling conclusion [that] all the evidence concerning the original textual meaning ... points in the same direction ...."
Enter Professor Mark Graber who wrote his own long article on the history of Section 3 siding mostly with Baude and Paulsen. Graber concludes that Section 3 is self-executing, that the Presidency is clearly covered by Section 3, and that Section 3 applies to insurrections and rebellions other than the Civil War.
Graber is one of our country's leading experts on the history of the 14th Amendment. Interestingly, Graber also wrote that the enormous amount of history he surveys can give judges a helpful perspective on the legal issues but that history can be at most a helpful guide. Graber concludes that the answers have to come from a careful evaluation of current political conditions.
While these scholars were debating the history of Section 3 in great detail, a number of constitutional law heavyweights presented their own conclusions in blog posts and other forms of social media. Two examples are Professor Larry Tribe, who thinks Trump is disqualified, and Professor Stephen Calabresi, one of the co-founders of the Federalist Society, who first agreed with Tribe but has since changed his mind and thinks Trump can't be disqualified because, among other reasons, the presidency is not covered by Section 3.
And, finally (at least for now), enter another leading expert on the history of the 14th Amendment, Professor Kurt Lash. In a relatively long article, Lash disputes many of the historical conclusions reached by Graber, Paulsen, and Baude. He thinks there are strong or at least colorable arguments that the Presidency is not covered by Section 3, that nothing in the history of Section 3 suggests it was meant to apply beyond the Civil War, and that Congress likely needs to pass implementing legislation before Section 3 can be used by state officials to disqualify potential candidates from holding office. He wrote the following:
The text [of Section 3] does not expressly (1) apply to future rebellions or insurrections, (2) apply to persons elected as President of the United States, (3) apply to persons seeking to qualify as a candidate for the Presidency, or (4) indicate whether the enforcement of Section Three requires the passage of enabling legislation. And these are just some of the deep textual ambiguities of Section Three.
Using an exclusively historical approach, Lash argues that at a minimum great uncertainty exists over whether Trump can be disqualified, but he also concludes the following:
Resolving these ambiguities in a manner that goes beyond the consensus understanding of the text requires the application of something other than historical evidence of original public understanding. The available historical records overwhelmingly reflect a focus on still-living persons who were responsible for a particular catastrophic event. There is no evidence suggesting a consensus public understanding of the text as applicable to future events, application absent enabling legislation, or any application whatsoever to persons seeking to qualify as a candidate for the President of the United States. On this last point, consider the fact that not a single person during the ratification debates described the text as barring persons from holding the office of the President of the United States. The sole example to the contrary occurred only once during the framing debates and went unreported in the press.
In an article that will come out any day, Professor Graber responds to Lash's arguments and disagrees with most of them. Among many other criticisms, Graber argues that Lash focuses too much on what Democratic members of Congress (the minority) said during the debates and not enough on what Republican member of Congress (the majority) said and did. Graber also agrees with Baude and Paulsen that it would be absurd for judges and state officials to read Section 3 as not applying to the Presidency.
Is your head spinning yet? So many historical analyses, so little agreement. It cannot be debated that at this moment in history, talented and careful law professors, some of whom are also serious historians, disagree vehemently on the answers to the many questions surrounding the application of Section 3 to Donald J. Trump. In short, Section 3 has caused originalist chaos.
Perhaps for that reason, both Graber and Lash, while engaging in deep, deep dives about the history of Section 3, also conclude that this history is simply insufficient to reach definite or even persuasive answers to the many problematic issues Section 3 raises. According to Graber,
the main lesson pseudo-histories of Section Three teach may be that whatever the merits of originalism in theory, originalism in practice is too likely to be a vehicle for surreptitiously importing partisan preferences into constitutional law to be of much use as a constraint on constitutional decision making... Constitutional law and constitutional history will best flourish if constitutional law abandons the historical exegesis that inspire politically motivated accounts of the constitutional past and leave the constitutional history of Section Three to historians.
Just so.
Should Donald J. Trump be disqualified from the Presidency under Section 3? My first reaction to that question is that it is inconceivable that this malignant narcissist is still in the running for the Presidency given what we knew about how he handled the office the first time and that he is facing serious criminal charges in several courts. Yet, here we are. I understand the temptation to rid this country of the possibility that Trump may return to the Presidency. No one is more afraid of that outcome than I am. Yet, I do not believe that disqualifying Trump is the best path forward for the reasons below.
This country needs not only to move past Trump but also past Trumpism. By Trumpism, I mean the kind of dangerous politics being played by people like Marjorie Taylor Green and Matt Gaetz as well as the hate-based racist and sexist shows Trump puts on for his base at his rallies. Disqualifying Trump may rid our political system of his presence but it would also likely increase the strength and influence of Trumpism. Trump's political supporters will be energized by his disqualification while his base will be angered and motivated to take action (maybe with violence). Telling Trump supporters that they cannot vote for him should only be done by judges or state officials under the clearest of disqualification rules. Section 3, as discussed above, is anything but clear, and Trump’s supporters have no shortage of legal materials to rely on to make that point.
There are many other reasons, centered in the here and now, why Trump should not be disqualified. The 2024 election is not far away, the GOP primary season is beginning much sooner than that, and the legal uncertainties surrounding this issue need to be resolved so that the American people know whom they can and cannot vote for. On a partisan level, I believe that the best way to marginalize Trumpism is to beat Trump so soundly at the polls that political officials and maybe even his base will take notice. Disqualifying Trump will feel like cheating to Trump's supporters and his repeated lies about the 2020 election may well be given a boost by his disqualification.
I cannot say it much better than Harvard Law Professor (and fellow progressive) Lawrence Lessig, who wrote a piece titled A Terrible Plan to Neutralize Trump Has Entranced the Legal World. Lessig thinks that Trump is not disqualified under Section 3 mostly because the people who broke into the Capitol on January 6th thought they were correcting an illegal election result, not trying to overthrow the legitimate government of the United States. If this "behavior qualifies as Section 3 insurrection,' then every leader who might resist a future coup attempt risks disqualifying themselves." Lessig qualifies this observation a bit by saying, "I believe that those who charged the Capitol on Jan. 6 committed a crime. I believe that their crimes should be prosecuted. But I also believe that the vast majority of them thought not that they were overthrowing a government but that they were pressuring their government to do the right thing—at least as they (wrongly) saw it."
Lessig is rightly concerned about other serious future uncertainties if Trump is disqualified under Section 3:
This is a nightmare of uncertainty — and one that wouldn’t end with declaring Donald Trump disqualified. Do Sens. Ted Cruz and Josh Hawley, who played a pivotal role in the effort to throw out the true electoral count, qualify as insurrectionists as well? Is every member of the House who voted wrongly to reject the slate from Pennsylvania an insurrectionist? Or, more practically, is every secretary of state permitted now to make their own judgment about whether a member of Congress or a senator crossed the line from legitimate contest to insurrection, forcing federal courts to actively review the history of every member of Congress who objected on Jan. 6?
No one today doubts that the Civil War was an insurrection and a rebellion and that Section 3 was ratified to deal with that problem. Whether and how it applies to future acts is legally uncertain and filled with the potential to cause even more polarization and political unrest than is already facing this country. Trump needs to be defeated through the regular political process. If We the People cannot do that on our own, disqualifying Trump from even participating in that process will likely make our current alarming conditions much worse and potentially more violent. As Lessig concluded:
Congress could act to end the distraction of this legal tussle.... Congress could unite to condemn the acts on Jan. 6 but assert that Section 3 does not reach a fight over the results of an election. That even if his acts were criminal (which I believe they were), Donald Trump is not, by those acts, disqualified from office. That vote would then shift the fight back to the place where such battles should be waged: not among lawyers in high courts, but among ordinary citizens at the ballot box.
I would only add that Lessig's conclusion should apply to many if not most constitutional law issues. But that is a discussion for another day. For now, it is enough to say that we need to beat Trump fairly and squarely for all the world to see, and that would go a long way, or at least some way, in returning America to a politics not dominated by Donald J. Trump or his supporters.