At Volokh Conspiracy, Michael McConnell has this guest post on the Fourteenth Amendment and disqualification for insurrection. From the introduction:
There is a recent flurry of interest in Section 3 of the Fourteenth Amendment, which bars any person who has "engaged in" an "insurrection or rebellion" (after having previously taken an oath to support the Constitution) from holding state or federal office. This provision has played no significant role in American governance since 1872 and was regarded by many scholars as moribund. The revival of interest in Section 3 is sparked by scholarship by several scholars with impeccable conservative credentials, including my friends Will Baude, Michael Paulsen, and Steve Calabresi. Their work advocates a "broad, sweeping" interpretation of the disqualification provision, and claims that under Section 3, Donald Trump is ineligible to run for a second term, without any further process, hearings, or adjudications. Already it has drawn the attention of the New York Times, and presumably will fuel efforts to keep Trump off the ballot.
I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3.
We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555 (1964). The broader and more nebulous the definition of engaging in insurrection, and the fewer the procedural safeguards, the greater the danger. …
Posted at 6:04 AM