The Problem with Beating Trump at the Polls
[N.B. I have a new Verdict column today discussing last week's SCOTUS order in Missouri v. United States. The order rejects Missouri's application for an emergency stay of a federal district court's injunction against its "Second Amendment Preservation Act"--a remarkable piece of legislation rejecting the supremacy of federal law that I compare in the column to the Southern Manifesto and other past efforts by states to read the United States as a kind of optional club for sovereign states. My column contains a rare bit of optimism. I note how the recorded votes in Missouri v. United States could signal a retreat from the Court's willingness--in Whole Woman's Health v. Jackson, the notorious Texas SB8 case--to allow states to circumvent federal judicial review of unconstitutional laws if they write their laws cleverly enough. If you're confused by that admittedly densely packed summary, check out the column. Heck. Check out the column even if you're not confused. Now, back to our regularly scheduled programming.]
Longtime readers of this blog will not be surprised to learn that I usually agree with what my co-bloggers write. But not always. Today I want to register some disagreement with Professor Segall's essay last week arguing that Section 3 of the Fourteenth Amendment should not be used to disqualify Donald Trump from running for President on the ground of his having "engaged in insurrection or rebellion."
Before coming to my areas of disagreement, I should highlight a large and important area of agreement. Both in general and as applied to the meaning of Section 3, I agree with Professor Segall that originalism is highly under-determinate. For that reason, however, I don't think the fact that Section 3 is under-determinate or that self-styled originalist scholars disagree about its meaning in various respects tells us more than what we know about other constitutional texts. Indeed, as I'll explain, under what I regard as the most straightforward textual analysis, Section 3 disqualifies Trump.
Let's consider the four questions that Professor Segall identified as dividing the scholars who have so far addressed them:
"1) Does Section 3 apply to insurrections and rebellions other than the Civil War?" Professor Segall cites a new article draft by Professor Kurt Lash, who dives deeply into the history of Section 3 and finds that it was not clear whether it was intended to apply to insurrections or rebellions other than the Civil War. This strikes me as largely irrelevant, even assuming the historical research is impeccable. The text says "rebellion or insurrection," not "the recent rebellion or insurrection," "an insurrection or rebellion already accomplished when this amendment becomes effective," or anything like that. Just as the Thirteenth Amendment and Section 1 of the Fourteenth Amendment have innumerable applications beyond the status of persons freed from bondage--because they use general language--so Section 3 applies to any "insurrection or rebellion," past, present, or future. The text is clear, rendering resort to its drafting history beside the point.
"2) Is the Presidency an office of the United States for purposes of Section 3?" I agree with Professor Segall, who cites Professor Lash and also Professors Blackman and Tillman, that the omission of the Presidency from the list of expressly named offices is odd. And as they point out, elsewhere the Constitution uses the term "officer" in ways that suggest that the Presidency is not an office. But I also agree with Professors Baude and Paulsen that, at least in the Section 3 context, this reading--while textually plausible--borders on the absurd. Perhaps the framers and ratifiers wished to prevent a former insurrectionist from becoming an Army lieutenant but not to prevent such an insurrectionist from becoming President. Given the much greater danger posed by the latter, however, it should require express constitutional language to support the destructive conclusion that the Presidency is not an office. And there is no such express language.
"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?" Yes, said Chief Justice Chase in In Re Griffin, but that answer is highly illogical, given the last sentence of Section 3: "But Congress may by a vote of two-thirds of each House, remove such disability." That language strongly implies that the default setting before Congress acts is that someone who engaged in insurrection or rebellion is disqualified. As I explained in an earlier essay, to say that much is not to say that Section 3
is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt. Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation. Section 3 is self-executing in the exact same way that a self-executing treaty is.
"4) As a factual matter, did Trump engage in an insurrection or rebellion?" I agree with Professor Segall that this is a somewhat difficult question, but not "as a factual matter." We know what Trump did: He encouraged his followers in various ways to disrupt the counting of electoral votes. What we don't know is the answer to two legal questions: Do the actions of the mob on January 6 count as insurrection or rebellion? And even if so, did Trump's degree of encouragement (and perhaps his failure to attempt to stop it) count as "engag[ing]" in insurrection or rebellion.
I believe that reasonable people can disagree about these legal questions. I also believe that under normal circumstances, in trying to address them, we would want to consider the consequences of a too-expansive definition of insurrection or rebellion, one that might, in the future, be used to deny federal office to someone who gave a fiery speech at a civil rights march that was followed by a breach of the peace.
But these are not normal circumstances. This is a break-glass moment for American constitutionalism. It is worth taking some risk regarding future applications of Section 3 in order to prevent a malignant narcissist with no regard for the nation's liberal democratic traditions from returning to power, this time unconstrained by any kind of "Team Normal." The conclusion that Trump is ineligible to run again would not be available if Section 3 of the Fourteenth Amendment didn't exist. However, it does exist--and on three of the four questions Professor Segall identified, the better, more straightforward reading of Section 3--construed even without regard to the fact that we're talking about the thousand-year storm that is Trump--is that it applies. And on the fourth question, which I admit is difficult when thinking about the range of possible applications, Trump's conduct at least falls within an arguably correct understanding of the constitutional language.
Hence, we end where Professor Segall says, and I agree, we usually end with constitutional questions involving under-determinate text. We face a normative question: all things considered, should Trump be barred from the Presidency? I agree with Professor Segall that it would be better "to beat Trump fairly and squarely" than to have to disqualify him from running. The difficulty is that it is nearly impossible to beat somebody "fairly and squarely" when that somebody is a demonstrated cheater who does not accept the legitimacy of his defeat. To defeat Trump, it does not suffice to win more electoral college votes than Trump. It requires restraint on the part of the Trump loyalists who have replaced many of the state and local election officials who acted in good faith in 2020, who are well represented in gerrymandered state legislatures, and who constitute a majority of House Republicans. And that's not to mention the mob that Trump will once again summon.
Finally, I should add that I much agree with Professor Segall that Trumpism is a threat even without Trump. However, none of the Trumplings seems capable of inspiring the kind of loyalty that the Donald himself does. The long-term project of defeating Trumpism will have a better chance of succeeding if we can purge our politics of Trump himself--by any legal means available.