Insurrection + the 14th Amendment = disqualify Trump?

insurrection

ĭn″sə-rĕk′shən
noun
1. The act or an instance of open revolt against civil authority or a constituted government.
2. A rising up; uprising.
3. The act of rising against civil authority or governmental restraint; specifically, the armed resistance of a number of persons to the power of the state; incipient or limited rebellion.

(The American Heritage® Dictionary of the English Language, 5th Edition.)

Most people watching the live TV reporting of the events at the Capitol in Washington DC on January 6, 2020 could see that this was a violent attempt to overthrow the government. All of the information that has been revealed in public hearings since then, especially the Congressional hearings, has only added further certainty that this was the intent of the mob and its main inciter, Donald J. Trump. “Hang Mike Pence!!”

 

Fourteenth Amendment  Equal Protection and Other Rights

Section 3 Disqualification from Holding Office

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.

Boiling this down to the present situation of a President:

No person shall….hold any office, civil or military, under the United States,….who, having previously taken an oath, as a member of Congress, or as an officer of the United States…..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.

There is no doubt that Trump engaged in insurrection and also gave aid and comfort to the insurrectionists. Here is how Professors William Baude, University of Chicago – Law School and Michael Stokes Paulsen, University of St. Thomas School of Law describe the Trump situation in their law review article “The Sweep and Force of Section Three”¹:

The events surrounding efforts to overturn the result of the presidential election of 2020 have sparked renewed scholarly, judi- cial, and political interest in Section Three of the Fourteenth Amendment.5 The core events are familiar to all—the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for States’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count elec- toral votes certified and submitted by several States; the efforts of Members of Con- gress to assert a similar power to reject votes lawfully cast votes by electors; the fo- menting and immediate incitement of a mob to attempt to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes—all in an attempt to prevent the defeated incumbent President, Donald Trump, from losing power in ac- cordance with the Constitution.

So, as I stated at the beginning any reasonably same person would be forced to conclude that Trump had been directly involved in the insurrection and certainly also provided aid and comfort.

So who enforces this very direct language written into our Constitution?

According to Baude and Paulsen:

Section Three is Legally Self-Executing. That is, its disqualifications from office are constitutionally automatic whenever its conditions for disqualification are met. Nothing more needs to be done in order for Section Three’s prohibitions to be legally effective. Section Three requires no implementing legislation by Congress.

………

………

Section Three’s disqualification rule may and must be followed— applied, honored, obeyed, enforced, carried out—by anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitu- tion’s other qualifications.

Chaos will follow

This means that probably many thousands of Federal, state, county, and local officials will be empowered to decide what “insurrection” means and who has thus violated Section 3 and therefore cannot stand for election. Absent some defined judicial process that can convincingly determine when violations of Section 3 have occurred, everyone in government, except perhaps the dog catcher, can weigh in.

So, as charming and elegant as the legal analysis of Baude and Paulsen may be,² the practical application of their approach would unleash nightmarish probabilities of chaos.

1. William Baude and Michael Stokes Paulsen, “The Sweep and Force of Section Three,” University of Pennsylvania Law Review Vol. 172, 2024 (August 9, 2023): 126, https://papers.ssrn.com/abstract=4532751.
2. Who isn’t charmed by a law review article in which the authors describe a legal argument as “not entirely bonkers”?