At Public Discourse, a point/counterpoint from two originalist-oriented scholars: Matthew Franck argues that Trump is disqualified from the presidency by Section 3 of the Fourteenth Amendment, and Michael McConnell responds.
From the former essay, on whether Trump engaged in insurrection:
If there was indeed an insurrection that day—as some courts have already determined there was—did Trump “engage” in it as Section 3 requires? He did not join the mob at the Capitol (though there has been some testimony that he wished to do so). Is incitement of others to undertake an insurrection “engaging” in it for purposes of the disqualification provision?
The editors of National Review quote Attorney General Henry Stanbery’s 1867 opinion on Section Three that engaging in insurrection would require “active rather than passive conduct.” They do not, however, quote the immediate sequel in which Stanbery says that “persons may have engaged in rebellion without having actually levied war or taken arms,” and that “any overt act for the purpose of promoting the rebellion” would suffice. Could speech be such an overt act? Stanbery thought so, saying later in the same opinion that “when a person has, by speech or by writing, incited others to engage in rebellion, he must come under the disqualification.”
Trump’s speech on the Ellipse was the proximate cause of the Capitol invasion. If his incitement was not an engagement in the insurrection, then we confront the absurd injustice of punishing members of the mob while leaving their “leader from the rear” unpunished. It was Trump’s purpose to achieve—by fraud if possible, by force if necessary—what he had failed to achieve in the November election. He was the “but for” cause of the insurrection—calling it into being, setting it on foot, and standing uniquely to benefit from it.
Professor McConnell responds on this point:
Even assuming that the violent events at the Capitol rose to the level of an “insurrection or rebellion,” it is difficult to make the case that Donald Trump “engaged in” that insurrection, as Section Three requires.
The operative language of Section Three was carefully chosen. The section creates two different grounds for disqualification: to “engage in” insurrection or rebellion or to give “aid and comfort” to the “enemies” of the United States. The former requires active involvement; the latter extends to substantial assistance (perhaps even rhetorical assistance, on analogy to treason). The term “enemies of the United States” has long been defined to refer to those at war with our country. At the beginning of the Civil War, there was some doubt as to whether the conflict was an actual “war” in the legal sense, or merely an insurrection or rebellion (which no one doubted), but the Supreme Court in The Prize Cases (1862) resolved that issue in favor of its being a war. Thus, Confederates could be disqualified either for actually engaging in the insurrection or for giving aid and comfort to the Confederacy at war with the United States. Whatever else it might be, January 6 was not “war,” and its participants were not “enemies of the United States.” Some advocates of disqualifying Mr. Trump confuse these standards and erroneously argue that he must be disqualified for giving “aid and comfort” to the January 6 insurrectionists. In fact, he is disqualified only if he “engaged in” it.
Notably, the Second Confiscation Act, which was a precursor to Section Three, covered anyone who would “incite, set on foot, assist, or engage in” a rebellion or insurrection. The framers of Section Three conspicuously did not include incitement or assistance within its scope.
There is much more historical evidence about what was meant by “engaging in” insurrection than about where to draw the line between insurrections and riots. That is because no one at the time doubted that the Civil War was a rebellion, but whether individuals had “engaged in” it was frequently contested. Perhaps the closest to an authoritative interpretation came from Attorney General Henry Stanbery in 1867, in an opinion interpreting an 1867 statute disqualifying persons who “participat[ed] in” the rebellion. According to Stanbery, “some direct overt act, done with the intent to further the rebellion, is necessary to bring the party within the purview and meaning of this law. Merely disloyal sentiments or expressions are not sufficient.”
We have records of almost half a dozen southerners elected to Congress whose entitlement to serve was challenged under Section Three. (Two preliminary points merit mention. First, there was no attempt to prevent these men from running for office, but only from taking office having been elected. Second, the forum for determination of their (dis)qualification was the House or the Senate, by virtue of Article I, Section Five, which provides that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.”) One senator-elect was deemed disqualified; he had been a colonel in the Confederate army and wartime governor of North Carolina. Two representatives-elect were disqualified. One admitted to giving “aid, countenance, counsel, and encouragement to persons engaged in armed hostility” against the Union—but the Congressional Globe does not provide any further details about precisely what he did. The second (who was the runner-up to the first) had taken up arms as a soldier in the Confederate army and thus was an easy case. A Virginian, Lewis MacKenzie, was permitted to take his seat in the House despite voting in favor of secession as a pre-war member of Virginia’s House of Delegates and voting to appropriate funds to ready the state for armed hostilities with the Union. The distinction appears to be that he did not take up arms and thus did not “engage in” the rebellion. Similarly, John M. Rice of Kentucky was permitted to take his seat, despite having voted for secession as a member of his state legislature. Closer to the line, Rice had been a recruiter for the Confederate army but not himself a combatant. While some House members thought these actions were disloyal and qualified as aid and comfort to the enemy, the full House voted to seat him.
The tenor of these proceedings is that those who fought for the Confederacy had “engaged in” the rebellion, while those who supported the Confederacy in more indirect ways, such as voting for secession, voting to appropriate funds for the Confederate military, and even recruiting for the Confederate army, had not. Given that then-President Trump was not present at the January 6 incursion into the Capitol, and fell short of words advocating violence or rebellion, he would seem to be on the safe side of the line drawn by those charged with enforcing Section Three at the time.
And here is Professor McConnell on the "holding office" issue I have discussed on this blog:
Section Three Applies to “Holding” Office, Not to Running for Office
By its plain language, Section Three provides that persons in violation may not “hold” any of the listed offices. It does not prohibit them from running. While the provision was enforced, not a single person was prevented from running for office on account of claims under Section Three. Instead, their eligibility to serve could be challenged and decided only after they were elected, when they sought to take their oath of office. Article I, Section Five makes each House the “Judge” of the “Qualifications of its own Members.” Three such persons, two would-be representatives and one would-be senator, were excluded. In other cases (discussed below), the House rejected Section Three challenges based on the particular facts.
Significantly, in at least one instance, the House concluded that the person elected had, in fact, engaged in the insurrection in a technical sense, but should be seated anyway. Accordingly, Congress lifted the prohibition for that person by a two-thirds vote of both Houses, as Section Three permits. This is further evidence that Section Three was not understood as a bar to election but only to taking office. By the way, the same is true of other grounds for disqualification. The election of a candidate too young to serve in the House or the Senate is not illegitimate; the youngster simply waits until he or she attains the necessary twenty-five or thirty years, and is then sworn into office.
Thus, one thing we can say for certain, based on the plain language of Section Three, is that Section Three does not bar Donald Trump from running for office. Nor does it bar voters from electing him.
And there is a related point of practical significance. The current round of litigation is an attempt to exclude Trump from the Republican Party primaries in Colorado and Maine. But even if that effort succeeds, it is of no practical significance. The Republican Party of Colorado has already announced that if Trump is knocked from the ballot, they will cancel the primary and choose their nominee in some other way, as is their right. No matter how many states try to keep the Republicans from being able to vote for the nominee of their choice, the Republican Party Convention can nominate whomever it wishes. The attempt to use Section Three to keep Donald Trump from running for the Republican nomination for president is thus not only constitutionally meritless but practically meaningless. All it does is rile up the party base and cause them to rally around Trump.
It is a harder question whether states could keep him off the ballot for the general election, complicated by the fact that as a technical matter, we do not vote for President but for a slate of electors. Could a state disqualify electors because of who they are going to vote for? The general election question, though, is not before the Supreme Court at this point.
(Via Ed Whelan at Bench Memos.)
Posted at 6:09 AM