Legal analysts William Baude and Michael Stokes Paulsen argue in “The Sweep and Force of Section 3,” forthcoming in 2024 from the University of Pennsylvania Law Review, that involvement in the insurrection of January 6, 2021, disqualifies former President Trump and others from any elected office in the future. Here’s a summary of their argument.
As it applies to Trump, Section 3 of the 14th Amendment reads:
No person shall … hold any office … 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, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The authors of the article adopt an originalist approach, often a good place to start constitutional analysis, and in this case sufficient by itself, because no values, technologies, or information make an original understanding obsolete.
Originalists, including Supreme Court Justices Thomas, Gorsuch, and Barrett, interpret the Constitution according to the original understanding of its exact words by those who ratified it. In the case of the 14th Amendment, this would be members of Congress and of state legislatures who ratified the Amendment in 1868. How did they understand the key terms in Section 3?
The authors concentrate on the terms “insurrection,” “rebellion,” and “aid or comfort.” They look at dictionary definitions of the era as well as the public, political, and legal uses of the terms at the time, including usage by President Lincoln, the Supreme Court, and Congress. The result is the authors’ working definitions.
“Insurrection” is “forcible resistance to the authority of government to execute the laws in at least some significant respect.” It’s not just breaking the law, but forcible resistance predicated on denial of the authority of the government to make and enforce the laws in question. “Rebellion,” is related, but includes “an effort to overturn or replace lawful government authority by unlawful means.” Unlike rebellions, insurrections need not be aimed at forming a new source of lawful authority, but must use force. Unlike insurrections, rebellions need not use force to replace a lawful government, because some rebellions result in “bloodless coups.”
“Aid or comfort” to insurrection can be provided by nothing more than speech, according to Congress in 1868. They excluded from further government service those who verbally supported the South during the Civil War after having sworn an oath of loyalty to the Constitution. The House voted to exclude John Y. Brown from Congress simply on a showing that he had written to the Louisville Courier in 1861, “Not one man or one dollar will Kentucky furnish Lincolnto aid him in his unholy war against the South…. If one man shall be found in our Commonwealth to volunteer to join them he ought and I believe he will be shot down before he leaves the State.” In March 1868 the House excluded John D. Young, announcing “that ‘aid and comfort’ may be given to an enemy by words of encouragement, or expression of an opinion.”
To those who object that such exclusion interferes with the 1st Amendment right of free speech, Baude and Paulsen reply that Section 3 of the 14th Amendment sets a limit on free speech rights (as do laws against sexual harassment and divulging state secrets). Section 3 certainly can’t be unconstitutional; it’s in the Constitution, superseding and modifying other clauses.
Former President Trump convened a rally on January 6, 2021. The announced goal, to “stop the steal,” implies that it was designed to prevent the lawful transfer of power through resisting the exercise of lawful authority. As soon as it became violent, it met the definition of an insurrection. Former President Trump gave “aid and comfort” to the insurrection, aid by failing for more than three hours to instruct the insurrectionists to cease and desist, comfort by thanking and praising them for their actions. Why disqualify someone who advocated death to pro-union Kentuckians but not Trump for his inaction after knowing that insurrectionists wanted to “Hang Mike Pence?”
Because former President Trump swore loyalty to the Constitution when he took office, true originalists should judge his conduct in the light of Section 3. Duly elected or appointed government officials should refuse to place Trump on the ballot for any public office. Trump could challenge this exclusion in court by demanding a jury trial followed by reinstatement, but he may instead be found guilty of a Section 3 violation by “clear and convincing” evidence. (“Beyond a reasonable doubt” applies only in criminal cases.) A guilty verdict requires his exclusion from the ballot because he is barred from holding public office.
I have distilled 126 pages in this 800-word account. Inevitably, some issues and nuance are missing.
I will be happy to respond to replies sent to my e-mail: wenz.peter@uis.edu.
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