At Dorf on Law, Eric Segall: The Difficult Legal and Political Questions Surrounding Trump's Disqualification Under Section 3 of the 14th Amendment. From the introduction:
The point of this blog post is not to referee the many textual, historical, and precedential arguments separating the two articles mentioned above [Baude/Paulsen and Blackman/Tillman]. Frankly, it is too early for that, which is why I agree with Blackman and Tillman that the Baude/Paulsen article should be allowed to percolate before folks uncritically accept their conclusions in the hopes that Trump will be disqualified. Similarly, legal scholars will need more time to digest and evaluate the Blackman/Tillman article.
On the other hand, things are already moving quickly and there are likely to be more lawsuits seeking to take Trump off the ballot in other states. This post identifies what I think are the most important questions about Section 3 that judges will likely try to answer. After that, I'll discuss a few of the pressing political questions and dynamics that I think should guide how Americans in 2023-2024 should think about Section 3 as it applies to Donald J. Trump.
And from the nonoriginalist conclusion:
I have read both articles and my tentative view is that there are plausibly persuasive answers on both sides to many if not all of the questions raised above. … Were it up to me, I would resolve the many difficult issues surrounding Section 3 with eyes directly on today's country and today's problems…..
I do not have strong feelings either way at the moment except to say that all of the questions raised by this post should be answered primarily with attention to the here and now, not to the ancient world of 1868. The past can possibly supply some helpful context for our current dilemma but that's all it can provide. The stakes are simply too high to delegate too much of this issue to generations past, and judges will not, in reality, do that anyway, so why pretend? If we cannot achieve consensus on whether to disqualify Trump, at least we should demand transparency from judges and other officials about why they will reach the decisions they will likely have to make. After all, a lot is at stake.
RELATED: Via Andrew Hyman, here is a debate on the Section 3 issues between Ilya Somin and Michael McConnell aired on MSNBC. Andrew adds:
Among other things, McConnell points out that the 14th Amendment does not prevent anyone from running for office, only “holding” office. (That’s also what I said in my most recent blog post.)
UPDATE: At Slate, Lawrence Lessig (Harvard) also has a nonorginalist take on Section 3: A Terrible Plan to Neutralize Trump Has Entranced the Legal World (arguing against disqualification on pragmatic grounds).
Posted at 6:04 AM