One of Judge Luttig's 14th Amendment, Section 3 Arguments is Too Clever By At Least Half

As attentive readers of this blog are aware, I have a modest disagreement with my friend and co-blogger Professor Segall about whether Donald Trump should be disqualified from the 2024 Presidential ballot pursuant to Section 3 of the 14th Amendment. Professor Segall thinks that there are too many difficult questions to which the text and original understanding do not unequivocally speak and that disqualifying Trump could lead to violence by his supporters; I think some of the questions Professor Segall identifies as dividing scholars are actually pretty easy to resolve (against Trump), and while I acknowledge that it would be better to beat Trump at the polls than to disqualify him, the fact that he has shown himself willing to use violence to challenge the results of an election make that a problematic route; I also regard Trump as an existential threat to constitutional democracy and much else, so I'm willing to support any peaceful and legal means to prevent him from regaining the White House.

(Retired) Judge Luttig--whom I regard as a great patriot for his role in persuading Mike Pence to ignore Trump's entreaties and threats leading up to January 6, 2021--has been one of the most vocal proponents of disqualifying Trump. I agree with various of the points he makes, especially that Section 3 is self-executing in the sense that it does not require congressional action to be effective. As I have previously explained, the last sentence of Section 3 ("But Congress may by a vote of two-thirds of each House, remove such disability") pretty clearly implies that absent congressional action, the default is disqualification.

In saying that some of the objections to Trump's disqualification can be easily dispatched, I would not say that every argument favoring disqualification is persuasive. In particular, Judge Luttig recently made an argument that strikes me as very much mistaken. In an interview on MSNBC, Judge Luttig said that both Trump's lawyers and the lawyers who otherwise agree with him that Trump should be disqualified have been reading Section 3 erroneously. These other lawyers, Judge Luttig says, read the provision to disqualify someone who, having previously taken an oath to support the Constitution, engages in insurrection or rebellion against the United States or the authority of the United States. But that's not what Section 3 says, according to Judge Luttig. It says that a prior oath-taker is disqualified for insurrection or rebellion against the United States Constitution. And insurrection or rebellion against the Constitution, Judge Luttig suggests, is broader than insurrection or rebellion against the U.S. or its authority. In the MSNBC segment, he describes Trump's various efforts to remain in power past the end of his term as insurrection or rebellion against the Twentieth Amendment, which says a term expires at noon on January 20th.

Wait, what? Here's the key text of Section 3: "No person shall . . . hold any office, civil or military, under the United States, . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . ." Although he didn't parse the language for the MSNBC interview, Judge Luttig's claim is that "the same" refers to "the Constitution of the United States" rather than "the United States."

That's a plausible reading of the text. Indeed, given the placement of the comma after the phrase "Constitution of the United States," one might even contend that Judge Luttig's reading is preferable--purely as a matter of punctuation--than the alternative reading. But the punctuation-based argument is hardly a slam-dunk. And more importantly, Judge Luttig's reading is contrary to how a competent speaker of the English language would ordinarily understand the phrase "insurrection or rebellion."

What does it even mean to "rebel" against the Constitution? Surely the term must connote something more than merely violate the Constitution. In New York State, every state and local official takes an oath (set forth in Article XIII, Section 1 of the state constitution) to support the Constitution of the United States. So far as I'm aware, other states follow the same practice. If every violation of the Constitution is an act of insurrection or rebellion against the Constitution, then every time a police officer conducts an unlawful search or seizure, that officer becomes ineligible to hold federal office--even if the officer would have qualified immunity in a civil suit.

Perhaps we might say that only the sorts of knowing or intentional constitutional violations that could give rise to civil liability rise to the level of insurrection or rebellion. Yet even that seems like quite an expansion of the meaning of the phrase "insurrection or rebellion." President Lincoln intentionally ignored Chief Justice Taney's ruling in Ex Parte Merryman, refusing to release prisoners who, according to Taney, had a right to habeas corpus because Congress, not the President, has the power to suspend the privilege of the writ. Although Lincoln had moral right on his side, the judgment of history is that Taney, not Lincoln, was right about habeas: suspension requires an act of Congress. But is there any possibility that the Reconstruction Congress that adopted the Fourteenth Amendment would have thought that Lincoln--in unlawfully and even unconstitutionally suspending habeas in order to suppress the Confederate insurrection/rebellion--thereby himself "engaged in insurrection or rebellion"? Of course not. And thus, even intentional constitutional violations do not necessarily count as insurrection or rebellion.

To be clear, in the Lincoln example, I'm not asking after the subjective intentions and expectations of the Fourteenth Amendment's drafters. I'm saying that construing Section 3 to refer to insurrection or rebellion against the Constitution--as Judge Luttig would construe it--is not only contrary to the natural meaning of the phrase "insurrection or rebellion" but leads to bizarre results. The extreme awkwardness of Judge Luttig's reading of Section 3 thus explains why even the lawyers pushing for Trump's disqualification have not relied on it.

Finally, Judge Luttig's reading is unnecessary. Because a reading of insurrection or rebellion against the Constitution would have to refer to a class of actions substantially narrower than all intentional acts that  merely violate the Constitution, Judge Luttig's reading ultimately calls for the same sort of inquiry that the more obvious reading of Section 3 does: courts must decide how much of an affront to the United States and its Constitution is required before they can say that someone has engaged in insurrection or rebellion. Creating the Confederacy and waging war against the Union Army on its behalf clearly count. Most mere constitutional violations without any violence or threat thereof do not. I believe that Trump's actions leading up to and on January 6, 2021--including his failure to intervene for hours--count; others will disagree; that disagreement will not be resolved by staring hard at the placement of a comma in Section 3.