In 1867, Senator Charles Sumner, a Massachusetts Republican who opposed slavery and was nearly killed on the Senate floor because of it, described the Constitution’s Guarantee Clause, which obligates the federal government to “guarantee to every state . . . a republican form of government,” as “a sleeping giant” awakened by the Civil War to give Congress the power to cleanse slavery’s stain. Section Three of the Fourteenth Amendment, which Sumner used in that battle for civil rights, is the sleeping giant—awakened by the January 6 insurrection—to cleanse Donald Trump’s stain. A new paper by two leading conservative scholars, William Baude and Michael Stokes Paulsen, makes a powerful case that Section Three bars the ex-president from returning to the White House because he engaged in insurrection and violated his oath of office. State election officials must honor their constitutional oaths by excluding Trump from the ballot to help the Supreme Court make a prompt and necessary decision about his eligibility.
Section Three provides that a government official who “engages in insurrection” against the Constitution may not return to office unless Congress (by a two-thirds vote of each House) extends amnesty. The drafters of that provision argued that these officials commit “moral perjury” by swearing to uphold the Constitution and then betraying that oath by engaging in insurrection. As a result, they cannot be trusted with power unless they convince Congress that they deserve a second chance. Immediately after the January 6 violence, I argued that Section Three disqualification was a fitting response to President Trump’s misconduct. I based that conclusion on my own scholarship about that part of the Fourteenth Amendment. Baude and Paulsen reached the same conclusion about Trump after a far more exhaustive review of the relevant legal and historical materials. Their article is a tour de force that everyone who cares about our country should take the time to read. It’s completely accessible to non-lawyers.
Enforcing Section Three is challenging because the provision is unfamiliar. Everyone understands what an impeachment or a criminal prosecution is, and people tend to gravitate to the tools they know. The January 6 Committee fumbled an excellent opportunity to educate the American people on disqualification through public hearings or its final report. Thus, Section Three may look more like a constitutional booby trap than a safeguard. The Baude/Paulsen paper closes that gap. The authors explain, for example, that Section Three applies to all insurrections, not just the one led by Jefferson Davis. They demonstrate that no act of Congress is required to enforce Section Three. And they observe that no criminal conviction or charge is required for a Section Three disqualification. These findings (and many others) deserve more attention from lawyers, journalists, and scholars. (A New York Times piece was an excellent start.) Fortunately, there is still time for a national debate on whether Trump forfeited his right to serve in office.
Meanwhile, the 2024 presidential campaign is underway, and Trump is running. How can the argument that he is constitutionally ineligible to serve be tested in a court? State election law is the only practical vehicle for challenging a presidential candidate’s eligibility. But there are many difficulties with relying on that enforcement system even if a conscientious state election official deems Trump ineligible. First, some states have party caucuses, and thus no eligibility challenge can be brought. Second, some states do not allow eligibility challenges in primaries and some that do hold their elections towards the end of the nominating process. Third, the states that hold their primaries earlier and permit challenges may not do so in time for the Supreme Court to rule on the issue before the contests begin in January.
A fair national election cannot be held if the eligibility of a major presidential candidate is in doubt. In that circumstance, voters will be unsure if their vote will count. Debate organizers will be uncertain about whom to include. Other eligible candidates will be harmed by the presence of a candidate who is ultimately ruled ineligible. A primary cannot be held again if the result is no longer valid or would come out differently without Trump on the ballot.
Moreover, in some election years, the presidential nomination is settled quickly. What if the Supreme Court determines that Trump is ineligible after he is nominated? The answer is that there will be chaos. And that chaos will get worse the deeper into 2024 that we go without a Supreme Court decision.
To address this pressing problem, at least one secretary of state with the authority to make candidate eligibility rulings under state law must declare that Trump cannot appear on that state’s presidential primary ballot. (A recent Washington Post piece makes a similar recommendation.) Not all states give their secretary of state this authority, but in those that do (like Colorado), these officials also swear an oath to uphold the Constitution. Baude and Paulsen give them a robust constitutional rationale for excluding Trump. Oath breaking must be met with oath keeping. Of course, such a decision by a secretary of state will not be the final word. The Trump campaign will sue to get him back on the ballot, and the Supreme Court will not stand idly by while some states let Trump appear and others do not. A swift declaration by a secretary of state, though, will get the eligibility litigation started sooner and give the Justices more time to consider the matter before voters in Iowa and New Hampshire go to the polls. This would be a non-partisan act to ensure an orderly election.
When the Justices hear the Trump challenge, they must rule on the merits. Any attempt to dodge the heart of Section Three by dismissing a proper case as non-justiciable or on some tangential ground would be disastrous. Allowing Trump to run and potentially serve without commenting on whether January 6 was an insurrection and, if so, whether Trump engaged in insurrection would create a crisis of legitimacy. We must know who the president is on Inauguration Day. And reasonable people would not know who the president is if Trump wins, and the Supreme Court ignores the arguments of those who believe that he cannot legally become president. A decision that he is eligible under Section Three is better than no decision at all.
In their paper, Baude and Paulsen describe Section Three of the Fourteenth Amendment as a “constitutional immune system, mobilizing every official charged with constitutional application to keep those who have fundamentally betrayed the constitutional order from keeping or reassuming power.” The state officials who stood fast in 2020 by rejecting dishonest efforts to overturn the election result must now complete that task by holding Trump accountable for failing to protect, preserve, and defend the Constitution of the United States.
