At Law & Liberty, Peter Walliston: The Fraught Question of Eligibility. From the introduction:
The upcoming presidential election will be one of the most important—and fraught—in our history, largely because of the questions that have been raised about Donald Trump’s eligibility to run for a second term as president.
The most authoritative foundation for these questions is a scholarly paper based on the language of Section 3 of the Fourteenth Amendment to the Constitution written by two conservative constitutional scholars, William Baude and Michael Stokes Paulson. The original work, which I have summarized here, is probably too long and its argument too detailed for most readers, but the summary should make its fundamental elements clear. The summary also contains commentary by Josh Blackman and Seth Barrett Tillman, who disagree with Baude and Paulsen in certain respects.
Recently, Law & Liberty published an excellent discussion by Professor Kurt T. Lash about the ambiguities in the language and legislative history of Section 3 of the Fourteenth Amendment, and this points to the difficulties that the US courts will have in deciding whether former President Trump is eligible to run for a second term. Unfortunately, the more difficulty the courts have in writing a persuasive opinion one way or the other, the more controversy and discord in our politics will result.
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Peril lies on both sides of the issue. A decision that deprives many Americans of an opportunity to vote for their preferred candidate could do lasting damage to trust in American democracy. Declaring Trump ineligible for the presidency would completely alter the current presidential race, including the views of many about whether the United States is a legitimate democracy and whether the president ultimately elected is a legitimate holder of the office. Without a fully persuasive reason for taking this step, the adverse consequences for the country could be substantial.
On the other hand, failing to apply the law fully and fairly to Donald Trump could destroy many Americans’ faith in the Constitution, the Supreme Court, and the legal system generally. Many will be persuaded that the Court was intimidated by a mob and failed to do its duty, or was pushed in that direction by the conservatives on the Court, three of whom were appointed by Donald Trump himself. It might even be seen as a roadmap that will enable future presidents—after denying that they lost an election—to take steps like those taken by Mr. Trump to stir major demonstrations in Washington or elsewhere.
After addressing several of the key issues, in conclusion:
All this shows how difficult it will be for the courts—and especially the Supreme Court, which will make the final decision—to be sure about the answer, and the less sure the answer the more controversy will roil this country.
It’s a cliché that our country is very divided today, and the question of Trump’s eligibility to run for president will only add to these divisions. Still, every American should try to understand the legal issues that the courts will face in making this extremely controversial decision, and seek out the true meaning of the Constitution, regardless of partisan inclination.
Posted at 6:09 AM