At Dorf on Law, Eric Segall, Section 3, Originalist Chaos, and Why Donald Trump Should Not Be Constitutionally Disqualified from the Presidency. From his useful summary of the state of the debate:
. . . After reviewing the current literature, it is quite clear to me that originalism cannot help us sort out the many legal questions surrounding Section 3 even if we wanted to use an exclusively historical and textual analysis. Instead, judges should focus on the here and now and apply Section 3's text according to contemporary needs and politics.
Although the question is close, I have reluctantly concluded that Trump should not be disqualified under Section 3 of the 14th Amendment …
The law professors who have analyzed these questions [surrounding Section 3] as a matter of text and history (as opposed to what is the best result all things considered) disagree strongly on almost every point. This chaos of historical analyses demonstrates that there are no easy answers to the questions above based on Section 3's original meaning.
The summary below of the recent literature is not comprehensive but is sufficient to support my twin conclusions that Section 3 must be interpreted according to today's politics, not those of 1868, and that neither state officials nor judges should disqualify Trump. In fact, I'd like to see Congress exercise its authority and preclude Trump's disqualification under the unambiguous last sentence of Section 3 ("Congress may by a vote of two-thirds of each House, remove such disability.").
Professors Will Baude and Michael Paulsen, both conservative originalists, fired the opening salvo on the recent debates surrounding Section 3. … The authors conclude that Trump is already ineligible for the Presidency, though if he is kept off the ballot in any state he certainly could appeal that decision to a court of law. Their article is 126 pages of careful and detailed analysis based almost exclusively on what the authors claim is the original meaning of Section 3.
Not long after this article was made public, Professors Josh Blackman and Seth Tillman posted their 126 page opus coming to very different conclusions. … Blackman and Tillman conclude that the "theoretical defects and other errors in [the] article are not insubstantial, and they span multiple independent issues. And we see no sound basis for their article’s startling conclusion [that] all the evidence concerning the original textual meaning … points in the same direction …."
Enter Professor Mark Graber who wrote his own long article on the history of Section 3 siding mostly with Baude and Paulsen. . . Interestingly, Graber also wrote that the enormous amount of history he surveys can give judges a helpful perspective on the legal issues but that history can be at most a helpful guide. Graber concludes that the answers have to come from a careful evaluation of current political conditions.
While these scholars were debating the history of Section 3 in great detail, a number of constitutional law heavyweights presented their own conclusions in blog posts and other forms of social media. Two examples are Professor Larry Tribe, who thinks Trump is disqualified, and Professor Stephen Calabresi, one of the co-founders of the Federalist Society, who first agreed with Tribe but has since changed his mind and thinks Trump can't be disqualified because, among other reasons, the presidency is not covered by Section 3.
And, finally (at least for now), enter another leading expert on the history of the 14th Amendment, Professor Kurt Lash. In a relatively long article, Lash disputes many of the historical conclusions reached by Graber, Paulsen, and Baude. He thinks there are strong or at least colorable arguments that the Presidency is not covered by Section 3, that nothing in the history of Section 3 suggests it was meant to apply beyond the Civil War, and that Congress likely needs to pass implementing legislation before Section 3 can be used by state officials to disqualify potential candidates from holding office. He wrote the following:
The text [of Section 3] does not expressly (1) apply to future rebellions or insurrections, (2) apply to persons elected as President of the United States, (3) apply to persons seeking to qualify as a candidate for the Presidency, or (4) indicate whether the enforcement of Section Three requires the passage of enabling legislation. And these are just some of the deep textual ambiguities of Section Three.
Using an exclusively historical approach, Lash argues that at a minimum great uncertainty exists over whether Trump can be disqualified …
In an article that will come out any day, Professor Graber responds to Lash's arguments and disagrees with most of them….
Is your head spinning yet? So many historical analyses, so little agreement. It cannot be debated that at this moment in history, talented and careful law professors, some of whom are also serious historians, disagree vehemently on the answers to the many questions surrounding the application of Section 3 to Donald J. Trump. In short, Section 3 has caused originalist chaos.
I think this is a fair summary of the debate (I'll add that on this blog, David Weisberg doubts that Trump is disqualified under the original meaning of Section 3 while John Vlahoplus takes the opposing view [CORRECTION: John points out that he hasn't concluded that Trump is disqualified, just that the president is an officer of, and the presidency an office under, the United States]; the rest of us have so far stayed out of the debate).
Professor Segall concludes that given this divided opinion, originalism can't provide an answer to the Section 3 question. That may be correct – I haven't studied the opposing arguments in detail, but it's striking that there are very prominent originalist scholars on both sides. My view has always been that originalism can answer some important modern questions but it may not be able to answer all of them.
What then? Professor Segall says that "judges should focus on the here and now and apply Section 3's text according to contemporary needs and politics." This strikes me as a bad approach for multiple reasons. Among other things, "contemporary needs and politics" are at least as sharply debated as originalist outcomes, and at least as complex. Second, judges don't have much expertise with the contemporary needs and politics of something of this scale and novelty, and will necessarily have to resort to intuitions and guesswork to resolve something that is (as Professor Segall says) quite difficult to assess. Third, even an originalist-based result will be likely be condemned as political by the losing side – a decision overtly based on politics would have little chance of acceptance. And fourth, if the text's meaning is unclear, I don't see how judges have the constitutional authority to make a decision of this magnitude based merely on guesswork about what would be the best practical outcome.
I would take a different path to a similar result. If the original meaning does not show Trump is disqualified, there is no basis for judges or state officials to intervene in the election. The burden of proof is on those who would invoke the Constitution to achieve a disqualification. I'm not sure how high that burden should be, but if the correct assessment of the scholarship is "originalist chaos," the burden seems not to be met. (To be clear, though, I'm not sure that a judge couldn't weigh the competing arguments and decide which is most persuasive: the fact that people disagree doesn't prove that no conclusion is possible.)
FURTHER THOUGHT: The literature review above should also include the important work of Gerard Magliocca, who wrote the first modern scholarly article on Section 3 in 2021: Amnesty and Section Three of the Fourteenth Amendment. He's also had a series of posts at Balkinization and Prawfsblawg, responding to specific claims on the history, that I've tried to keep up with. The most recent is Confederate Presidential Electors (Prawfsblawg).
FURTHER UPDATE ON THE LAST THOUGHT: Here are two more posts from Gerard Magliocca at Balkinization:
Two Unreported Section Three Cases From Reconstruction
1870 Grand Jury Charge on Section Three and Constitutional Oaths
Posted at 6:18 AM