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.
Section Three remains a valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution. It falls to us to fulfill our duties to it. These include the duties of legislative bodies, state and federal election officials, executive officers, and perhaps others to take up the Constitution, including Section Three of the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies. Taking Section Three seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election by engaging in or giving aid or comfort to acts of “insurrection or rebellion” against the lawful constitutional order.
Baude and Paulsen are two of the most prominent conservative constitutional scholars in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans. Thus it is all the more significant and sobering that they do not hesitate to draw from their long study of the Fourteenth Amendment’s text and history the shattering conclusion that the attempted overturning of the 2020 presidential election and the attack on the Capitol, intended to prevent the joint session from counting the electoral votes for the presidency, together can be fairly characterized as an “insurrection” or “rebellion.” They say:
Note the hedge: “If the public record is accurate….” Clearly, the crux of the matter, legally speaking, lies in the public record, i.e., the facts, which Baude and Paulsen review in some detail. It also lies in the meaning of the terms "engaged in," "insurrection," "rebellion," and "aid or comfort." Baude and Paulsen arrive at a definition of those terms by looking at contemporaneous dictionary definitions; other references to the same terms in other parts of the Constitution; contemporaneous public, political, and legal usage, citing speeches by Lincoln, Congressional debates, and a Civil War Supreme Court case; extant statutory sources; legislative history; and early applications of Section 3. Taking each in order, they conclude the meanings of these crucial terms as follows:
Insurrection is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. The term “insurrection” connotes something more than mere ordinary lawbreaking. It suggests an affirmative contest with, and active resistance to, the authority of the government. It is in that sense more than just organized resistance to the laws—more than just a protest, even one involving civil disobedience. Rather, it is organized resistance to the government. Insurrection is also more than mere “protest” in that it implies some element of forcible resistance. It is something more than a mere spontaneous, disorganized “riot.” Insurrection suggests at least some degree of coordinated, concerted action. The term also implies something more than acts of solitary individuals: to qualify as an insurrection the acts in question must involve some form of collective action, even if not an advance plan.
Rebellion is thus closely related to
insurrection, but perhaps not quite identical in meaning. A rebellion is
arguably broader in its reach than an insurrection: rebellion implies an
effort to overturn or displace lawful government authority by unlawful
means. (In the case of secession, or a declaration of independence, the
rebellion is an effort to free those engaged in rebellion from the authority of
the existing lawful government.) Rebellion is something beyond mere resistance
to government authority in a particular instance or set of instances. A
rebellion seeks to replace the existing regime, not just resist its
law-executing authority. Rebellion involves repudiation, to some degree or another,
of the regime’s authority, legitimacy, or validity. It is a challenge, direct
or indirect, to the regime itself.
The term rebellion can also
imply a competing claim to legitimacy. “Rebellion” thus seems to carry a
stronger political-claim-of-right valence than does “insurrection.” Crucially,
however, the fact that an insurrection or rebellion claims political or moral
legitimacy—as the American Revolution did; indeed, as the South’s secession
did—does not make it any the less an insurrection or rebellion.
The fact that an attempted coup d’etat, or declaration of independence, or
secession, is claimed to be a “vindication” or “restoration” of rightful
governmental authority—or asserted to be a pre-emptive effort to thwart some other
person’s or group’s alleged wrongful assertion of authority—does not
immunize such action from the legal characterization of rebellion against the
regime. If somebody in fact participates in an attempt to over-throw the
government, it makes no difference that he might think himself in the right for
doing so, see himself as an agent for preserving lawful government, or
view his acts and intention not as “rebellion” but restoration. Mistake of law
is no defense to a coup d’etat.
In many cases, giving “aid or comfort” to enemies will be
similar to the kind of conduct that counts as having “engaged in” insurrection
or rebellion through intentional, active assistance. If there is a difference,
it is that the term “aid or comfort” reinforces and emphasizes Section Three’s
coverage of indirect but material assistance. Such material
assistance—possibly including expression supporting, encouraging, counseling,
or promoting the enemy—might more naturally fall into Section Three’s “aid or
comfort” language, even where it might be debatable whether to characterize
such conduct as directly “engag[ing] in” insurrection or rebellion.
Finally, aid or comfort to whom?
“[T]he enemies thereof.” We believe
that “enemies” as employed in Section Three, embraces enemies both foreign and
domestic.
In our view, on the basis of the public record, former
President Donald J. Trump is constitutionally disqualified from again being
President (or holding any other covered office) because of his role in the attempted
overthrow of the 2020 election and the events leading to the January 6 attack.
In other words, Baude and Paulsen believe that in this case, the public record and the legally accepted meaning of Section 3's key terms trigger--indeed, require--Trump's disqualification from public office under Section 3. But there is a difference between triggering that disqualification and sustaining the removal of Trump's name from the ballot. Recall that Baude and Paulsen said above, “If the public record is accurate, the case is not even close.” So, while they think there is already enough publicly known to cause, for example, a state Secretary of State to disqualify Trump, they also anticipate that Trump is likely to challenge that disqualification, and that a court--state or federal--will ultimately be the final arbiter of whether the disqualification was justified.
Luttig (above) and Tribe (below) discuss the gravity of a decision to disqualify a candidate in their Atlantic article and offer a blueprint of how a challenge to such a decision might unfold.
The former federal judge and Stanford law professor Michael McConnell cautions that “we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot … If abused, this is profoundly anti-democratic.” He also believes, as we do, that insurrection and rebellion are “demanding terms, connoting only the most serious of uprisings against the government,” and that Section 3 “should not be defined down to include mere riots or civil disturbances.” McConnell worries that broad definitions of insurrection and rebellion, with the “lack of concern about enforcement procedure … could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.”
We share these concerns, and we concur that the answer to them lies in the wisdom of judicial decisions as to what constitutes “insurrection,” “rebellion,” or “aid or comfort to the enemies” of the Constitution under Section 3.
As a practical matter, the
processes of adversary hearing and appeal will be invoked almost immediately
upon the execution and enforcement of Section 3 by a responsible election
officer—or, for that matter, upon the failure to enforce Section 3 as required.
When a secretary of state or other state official charged with the
responsibility of approving the placement of a candidate’s name on an official
ballot either disqualifies Trump from appearing on a ballot or declares him
eligible, that determination will assuredly be challenged in court by someone
with the standing to do so, whether another candidate or an eligible voter in
the relevant jurisdiction. Given the urgent importance of the question, such a
case will inevitably land before the Supreme Court, where it will in turn test
the judiciary’s ability to disentangle constitutional interpretation from
political temptation. (Additionally, with or without court action, the second
sentence of Section 3 contains a protection against abuse of this extraordinary
power by these elections officers: Congress’s ability to remove an egregious
disqualification by a supermajority of each House.)
Luttig
was recently interviewed by Isaac Chotiner for the
New Yorker,
and his
comments there bear on this question. To
me, they indicate there may already be a coordinated effort underway by Never Trumpers of
both parties to get this matter heard by the Supreme Court, not only before the
election, but before the New Hampshire Republican primary in late January, 2024. That primary date is yet to be determined but is scheduled to take place a week after the Iowa caucuses on January 15, 2024. New
Hampshire rules require a prospective candidate to file a declaration of candidacy with the Secretary of State under perjury of law and pay a $1,000 filing fee by a date yet to be set. For the 2020 election, the filing date was November 15, 2019, almost one year before the 2020 election. I would expect something similar for the 2024 election--so November, 2023. This matter of Trump's eligibility could, therefore, be settled before the end of this year.
I just wonder whether the response I described
might be appropriate for a state official involved in an intense partisan
atmosphere who didn’t feel like he or she wanted to make that call [as to ineligibility]. So this
would be more practical rather than out of deep belief. They could say, This is
a contested issue that even esteemed law professors are discussing and
debating. I just wonder if there is more validity to someone’s hesitation at
this practical level?
No, there is not. And it is worse than
just that. These officials in this context, just like all other elected
officials in different contexts, Isaac, have an affirmative obligation and duty
under the Constitution and the laws of the United States to interpret them as
best they can. It is not an option for them to abdicate that duty because of
practicalities or politics.
Have you heard from any state officials who are
interested in taking action to disqualify Trump?
If I had, I wouldn’t be at liberty to
tell you.
Why? You just keep that private?
Yes.
Do you expect this to get to the Supreme Court?
I feel certain it will go to the
Supreme Court, and before the 2024 election. The Supreme Court of the United
States has the highest obligation under the Constitution to decide this
question. It is not an option for the Court to duck this question.
Sounds like a game plan. Step One: a public official with control over his/her state's ballot considers Trump's candidacy filing in light of Section 3 and decides that the events surrounding January 6 have triggered disqualification, which triggering Baude and Paulsen make clear "requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply." Baude and Paulsen urge public officials to take Step One without fear of acting unconstitutionally:
We think that the general rule of our constitutional order is that political officials may take actions premised on fair interpretations of indefinite terms, and that when they do so, their actions cannot rightly be held “unconstitutional” by the courts, precisely because they fit within the fair range afforded by the Constitution. Where the Constitution admits of a range of choice, political authorities may exercise choices within that range.
Step Two: Trump challenges the disqualification, and a court is called upon to adjudicate whether the public official acted properly. Here Baude and Paulsen speak directly to the Supreme Court, which has declined to consider questions it considers political, such as gerrymandering:
Finally, we believe it would be wrong for courts to refuse to decide cases, otherwise lawfully within their jurisdiction, concerning Section Three on the pretense that such matters are “political questions.” Outside of certain exercises of power to exclude, expel, or impeach and try, committed to each House’s judgment, Section Three is enforceable by the judiciary as well as by other officials. Section Three’s terms embody rules and standards, enforceable as any other constitutional provision is enforceable. There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial.
Not only does this sound like a game plan, but Luttig's interview with Chotiner it makes me wonder if the strategy was developed and coordinated by members on the same team. Luttig—Federalist Society. Baude and Paulsen – Federalist Society. Alito, Thomas, Gorsuch, Roberts, Kavanaugh, and Barrett—all Federalist Society. These people talk to each other, either directly or through law review articles, publications, television appearances, magazine interviews, podcasts, etc. Luttig, Tribe, Baude, and Paulsen have described the rules of the disqualification game in convincing detail and what is at stake if those entrusted to enforce the Constitution take a rain check. They’ve even sent the Supreme Court their “originalist” playbook, in the form of their law review article, urging them not to punt on this important constitutional question.
Taking Section Three seriously as part
of our nation’s operative, ongoing fundamental law means that such inquiries
are constitutionally necessary. Indeed, they are constitutionally required.
Taking Section Three seriously, as binding constitutional law, means faithfully
ascertaining and fearlessly applying the objective, original meaning of its
words and phrases, understood in their historical context, whether we like that
meaning or not, and tirelessly following the logic of the text’s meaning to its
fair conclusions. The upshot of doing so, we think—the consequence of adhering
to constitutional principle—may well be the disqualification from public office
of a great many more individuals than is generally recognized. In many cases,
the inquiry has not yet begun. It is past time to start the reckoning.
Keep it real!
Marilyn
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