At Dorf on Law, Eric Segall: Of Insurrections, Presidents, and the Utter Failure of Constitutional Law to Address the Real Issues. From the introduction:
Two of America's most prominent conservative constitutional law professors, both self-described originalists, Will Baude and Michael Paulsen, have penned a 126-page opus explaining why Section 3 of the Fourteenth Amendment disqualifies on its own terms with no enabling legislation Donald Trump and likely many others from holding office under the United States or any state. …
Everyone agrees that[Section 3] was meant to deal with the Confederacy but is written broadly to apply to other insurrections and rebellions. That is where the agreement ends. In their article, Baude and Paulsen cover every angle, dissect every word, meet every counter-argument, and apply their legal conclusions to Trump and January 6th. Their textual and historical analysis is rigorous, sophisticated, and careful. I would love for them to be right.
What the authors do not do is discuss whether it is a good or bad thing for America that Section 3 works the way they say it does and therefore disqualifies the clear frontrunner for the GOP Presidential nomination from holding office. To them, the answer is in meaning and history, not consequences and results. And that, in a nutshell, is what is so terribly wrong with constitutional law today.
Before we begin, I want to make my priors clear: I dislike Donald Trump more than any other public figure I have come across in my 65 years on this planet.
The authors reach four crucial and contestable conclusions about Section 3:
1) Section 3 is a fully operative constitutional provision today;
2) Section 3 is self-executing: the disqualification is constitutionally automatic whenever its terms are satisfied, and no state or federal law is necessary for disqualification;
3) Section 3 supersedes or is reconcilable with other constitutional provisions, such as the First Amendment, the Bill of Attainder clauses, and the Due Process clauses.
4) Section 3 has a broad and expansive sweep. It
disqualifies from future office-holding persons who 'engaged in'—an expansive and encompassing term connoting many forms of participation in or active support of—a broad swath of activity covered by the terms 'insurrection or rebellion' or the giving of 'aid or comfort to 'enemies' of the nation or its constitutional order. It applies to a broad swath of civilian, military, and legislative office holders who swore oaths of fidelity to the Constitution, and it disqualifies such persons from holding in the future any of an extraordinarily broad swath of public offices.
Leaving aside the imprecise nature of a "broad sweep," I am inclined to agree with the authors' conclusions about how Section 3 disqualifies Trump. But that is mostly because the text allows for that result and I think our country would be much better off without Donald Trump in our politics (as discussed below, however, I may be wrong about that). It is not because the text or original meaning of Section 3 clearly supports these views or because no one could argue to the contrary. In fact, most of the authors' legal conclusions are debatable based on text, history, and precedent.
And yet, throughout the article, the authors make the same mistake the justices make every term. They treat contestable arguments and debatable historical accounts as if they are not contestable and not debatable. There is some humility in this article, but not nearly enough. As Professor Aaron Tang has observed about the justices, if "today’s justices were . . . humble, they would freely admit that sometimes, especially in the difficult cases that divide our society, they cannot find a clear answer." The same is true with many of the issues raised by Section 3, but you wouldn't know that from reading this article.
I will focus on two examples to illustrate the problem. Then, I will explain why this article exemplifies how badly we do constitutional law in this country. …
Posted at 6:17 AM