As students of the United States Constitution for
many decades—one of us as a U.S. Court of Appeals judge, the other as a
professor of constitutional law, and both as constitutional advocates,
scholars, and practitioners—we long ago came to the conclusion that the
Fourteenth Amendment, the amendment ratified in 1868 that represents our
nation’s second founding and a new birth of freedom, contains within it a
protection against the dissolution of the republic by a treasonous president.
This protection, embodied in the amendment’s often-overlooked
Section 3, automatically excludes from future office and position of power in
the United States government—and from any equivalent office and position of
power in the sovereign states and their subdivisions—any person who has taken
an oath to support and defend our Constitution and thereafter rebels against
that sacred charter, either through overt insurrection or by giving aid or
comfort to the Constitution’s enemies.
The historically unprecedented federal and state indictments of
former President Donald Trump have prompted many to ask whether his conviction
pursuant to any or all these indictments would be either necessary or
sufficient to deny him the office of the presidency in 2024.
Having thought long and deeply about the text, history, and
purpose of the Fourteenth Amendment’s disqualification clause for much of our
professional careers, both of us concluded some years ago that, in fact, a
conviction would be beside the point. The disqualification clause operates
independently of any such criminal proceedings and, indeed, also independently
of impeachment proceedings and of congressional legislation.
The clause was
designed to operate directly and immediately upon those who betray their oaths
to the Constitution, whether by taking up arms to overturn our government or by
waging war on our government by attempting to overturn a presidential election
through a bloodless coup.
The former president’s efforts to overturn the 2020 presidential
election, and the resulting attack on the U.S. Capitol, place him squarely
within the ambit of the disqualification clause, and he is therefore ineligible
to serve as president ever again. The most pressing constitutional question
facing our country at this moment, then, is whether we will abide by this clear
command of the Fourteenth Amendment’s disqualification clause.
We were immensely gratified to see that a richly researched
article soon to be published in an academic journal has recently come to the
same conclusion that we had and is attracting well-deserved attention outside a
small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the
Yale School of Management, whose encouragement inspired us to write this piece.
The evidence laid out by the legal scholars William Baude and Michael Stokes
Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous.
Sooner or later, it will influence, if not determine, the course of American
constitutional history—and American history itself.
Written with precision and thoroughness, the article makes the
compelling case that the relevance of Section 3 did not lapse with the passing
of the generation of Confederate rebels, whose treasonous designs for the
country inspired the provision; that the provision was not and could not have
been repealed by the Amnesty Act of 1872 or by subsequent legislative
enactments; and that Section 3 has not been relegated by any judicial precedent
to a mere source of potential legislative authority, but continues to this day
by its own force to automatically render ineligible for future public office
all “former office holders who then participate in insurrection or rebellion,”
as Baude and Paulsen put it.
Among the profound conclusions that follow are that all
officials who ever swore to support the Constitution—as every officer, state or
federal, in every branch of government, must—and who thereafter either “engaged
in insurrection or rebellion” against the Constitution or gave “aid and comfort
to the enemies” of that Constitution (and not just of the United States as a
sovereign nation) are automatically disqualified from holding future office and
must therefore be barred from election to any office.
Regardless of partisan leaning or training in the law, all U.S.
citizens should read and consider these two simple sentences from Section 3:
“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.”
The Fourteenth Amendment was
promulgated and ratified in the context of postbellum America when, even after
losing the Civil War, southern states were sending men to Congress who had held
prominent roles in the Confederacy or otherwise supported acts of rebellion or
insurrection against the United States.
The two of us have long believed, and
Baude and Paulsen have now convincingly demonstrated, that notwithstanding its
specific historical origin, Section 3 is no anachronism or relic from the past;
rather, it applies with the same force and effect today as it did the day it
was ratified—as does every other provision, clause, and word of the
Constitution that has not been repealed or revised by amendment.
Baude and Paulsen also conclude that
Section 3 requires no legislation, criminal conviction, or other judicial
action in order to effectuate its command. That is, Section 3 is
“self-executing.” (Other scholars have relied on Chief Justice Salmon P.
Chase’s poorly reasoned opinion in an 1869 case called In Re Griffin to
support the contrary view. Baude and Paulsen decisively dismantle Griffin as
a precedent.)
They conclude further that
disqualification pursuant to Section 3 is not a punishment or a deprivation of
any “liberty” or “right” inasmuch as one who fails to satisfy the
Constitution’s qualifications does not have a constitutional “right” or
“entitlement” to serve in a public office, much less the presidency.
(For that
reason, they argue that the section, although it does not entirely override
preexisting limits on governmental power, such as the First Amendment’s ban on
abridgments of the freedom of speech, powerfully affects their application.)
Finally, the authors conclude that Section 3 is “expansive and encompassing” in
what it regards as “insurrection or rebellion” against the constitutional order
and “aid and comfort to the enemies” of the United States.
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 even 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 write:
“The bottom line is that Donald Trump both 'engaged in insurrection or rebellion' and gave 'aid or comfort' to others engaging in
such conduct, within the original meaning of those terms as employed in Section
Three of the Fourteenth Amendment. If the public record is accurate, the case
is not even close. He is no longer eligible to the office of Presidency, or any
other state or federal office covered by the Constitution.”
At the time of the January 6
attack, most Democrats and key Republicans described it as an insurrection for
which Trump bore responsibility. We believe that any disinterested observer who
witnessed that bloody assault on the temple of our democracy, and anyone who
learns about the many failed schemes to bloodlessly overturn the election
before that, would have to come to the same conclusion.
The only intellectually
honest way to disagree is not to deny that the event is what the Constitution
refers to as “insurrection” or “rebellion,” but to deny that the insurrection
or rebellion matters. Such is to treat the Constitution of the United States as
unworthy of preservation and protection.
Baude and Paulsen embrace the “idea
that men and women who swore an oath to support the Constitution as government
officials, but who betrayed that oath by engaging in or abetting acts of
insurrection or rebellion against the United States, should be disqualified
from important positions of government power in the future (unless forgiven by
supermajorities of both houses of Congress).” To them, as to us, this will
forever “remain a valid, valuable,” and “vital precept” for America.
Section 3’s disqualification clause
has by no means outlived its contemplated necessity, nor will it ever, as the post–Civil
War Framers presciently foresaw. To the contrary, this provision of our
Constitution continues to protect the republic from those bent on its
dissolution. Every official who takes an oath to uphold the Constitution, as
Article VI provides every public official must, is obligated to enforce this
very provision.
The Baude-Paulsen article has already
inspired a national debate over its correctness and implications for the former
president. 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.)
The entire process, with all its
sometimes frail but thus far essentially effective constitutional guardrails,
will frame the effort to determine whether the threshold of “insurrection” or
“rebellion” was reached and which officials, executive or legislative, were
responsible for the January 6 insurrection and the broader efforts to reverse
the election’s results.
The process that will play out over
the coming year could give rise to momentary social unrest and even violence.
But so could the failure to engage in this constitutionally mandated process.
For our part, we would pray for neither unrest nor violence from the American
people during a process of faithful application and enforcement of their
Constitution.
If Donald trump were to be
reelected, how could any citizen trust that he would uphold the oath of office
he would take upon his inauguration? As recently as last December, the former
president posted on Truth Social his persistent
view that the last presidential election was a “Massive Fraud,” one that
“allows for the termination of all rules, regulations, and articles, even those
found in the Constitution.”
No person who sought to overthrow our
Constitution and thereafter declared that it should be “terminated” and that he
be immediately returned to the presidency can in good faith take the oath that
Article II, Section 1 demands of any president-elect “before he enters on the
Execution of his Office.”
We will not attempt to express this
constitutional injunction better than did George Washington himself in
his “Farewell Address” to the nation, in 1796:
“The basis of our political systems is
the right of the people to make and to alter their Constitutions of Government.
But the Constitution which at any time exists, till changed by an explicit and
authentic act of the whole people, is sacredly obligatory upon all. The very
idea of the power and the right of the people to establish Government
presupposes the duty of every individual to obey the established Government.
“All obstructions to the execution of
the Laws, all combinations and associations, under whatever plausible
character, with the real design to direct, control, counteract, or awe the
regular deliberation and action of the constituted authorities, are destructive
of this fundamental principle, and of fatal tendency …
“However combinations or associations of the above
description may now and then answer popular ends, they are likely, in the
course of time and things, to become potent engines, by which cunning,
ambitious, and unprincipled men will be enabled to subvert the power of the
people, and to usurp for themselves the reins of government; destroying
afterwards the very engines which have lifted them to unjust dominion.”
Our first president may well have been
our most prescient. His fears about “cunning, ambitious, and unprincipled men”
have, over the centuries, proved all too well founded. But his even stronger
hopes for the republic were not misplaced. Still today, the Constitution, through
its Reconstruction Amendments, contains a safeguard that it originally lacked—a
safeguard against the undermining of our constitutional democracy and the rule
of law at the hands of those whose lust for power knows no bounds.
The men who framed and ratified the
Fourteenth Amendment entrusted to us, “the People of the United States,” the
means to vigilantly protect against those who would make a mockery of American
democracy, the Constitution, the rule of law—and of America itself. It fell to
the generations that followed to enforce our hallowed Constitution and ensure
that our Union endures. Today, that responsibility falls to us.
J. Michael Luttig is a former federal judge on the
U.S. Court of Appeals for the Fourth Circuit.
Laurence H. Tribe is the Carl M. Loeb University
Professor of Constitutional Law Emeritus at Harvard University.
The Atlantic
