Is Trump eligible to run for office?
by Noah Feldman | Bloomberg
A law review article claiming that Donald Trump is automatically disqualified from holding elected office is getting attention in large part because it was written by two conservative, originalist law professors, William Baude and Michael Stokes Paulsen.
Baude and Paulsen argue that Trump should be excluded from ballots for giving aid to an “insurrection or rebellion” in violation of Section 3 of the 14th Amendment.
OK. Hold it right there. Before we go any further, we need to know what the 14th amendment to the constitution says. Here you go:
Section Three: 14th Amendment
https://www.history.com/topics/black-history/fourteenth-amendment#14th-amendment-section-three
Section Three of the amendment, gave Congress the authority to bar public officials, who took an oath of allegiance to the U.S. Constitution, from holding office if they “engaged in insurrection or rebellion” against the Constitution. The intent was to prevent the president from allowing former leaders of the Confederacy to regain power within the U.S. government after securing a presidential pardon.
Wait. What? The Confederacy? Are they saying somehow Trump triggered a civil war that killed 750,000 Americans and should be held to the same penalties imposed on the leaders of the Confederate States of America?
Last I checked he hasn’t even been brought to trial on the January 6th mess.
Don’t get me wrong. You can support any candidate you want, but this seems something of a stretch to me. Back to the 14th amendment.
It states that a two-thirds majority vote in Congress is required to allow public officials who had engaged in rebellion to regain the rights of American citizenship and hold government or military office.
It states that: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
There are two problems with the notion that Trump can and should be kept off the ballot by state election authorities.
First, although Baude and Paulsen’s originalism is honest and conscientious, originalists outside of academia typically won’t apply their originalism if it leads to a result at odds with their conservatism.
Second, there is precedent that contradicts their argument — precedent the scholars dismiss because they say it contradicts the original meaning of Section 3.
To condense their main points, when the 14th Amendment was drafted after the Civil War, the original meaning of Section 3 was that anyone who previously held public office and then rebelled against the US government should be automatically barred from office unless two-thirds of Congress made an exception.
This constitutional provision is law and requires no further action by Congress to implement it, the article says.
Courts can and should apply it, but we don’t need to wait for them to do so. Any government official, state or federal, whose duty it is to apply the Constitution must obey Section 3.
It follows, the authors say, that the state officials who set the ballots for the primaries and general elections should exclude Trump. If he wants to fight that in court, he can. But there’s no need for the officials to wait for a judicial determination.
To state this argument is to see why it won’t be followed by state officials.
Was the Jan. 6 attack on the Capitol an “insurrection”? Did Trump participate or give aid and comfort to the “enemies” of the Constitution under Section 3? These are contentious questions of constitutional interpretation.
Again folks, the 14th was written in response to the devastation caused by the Civil War. Can we honestly say that the January 6th incident is the same as the 4 year conflict that destroyed the south and cost 750,000 American lives?
True, all state and federal officials are sworn to uphold the Constitution. But today we are accustomed to having the judiciary, and ultimately the Supreme Court, resolve tough constitutional questions.
A state election official who blocked Trump from the ballot would understandably feel an enormous amount of trepidation about making such an epochal decision absent judicial guidance. And even if local officials were prepared to bar Trump, they would be ill advised to do so as a matter of constitutional law.
The Supreme Court as a whole has never directly interpreted Section 3. But in 1869, the chief justice of the United States, Salmon P. Chase, issued a circuit court opinion in Griffin’s Case interpreting Section 3. (At the time, it was normal for Supreme Court justices also to work as circuit court judges.)
In it, Chase held that Section 3 was not automatically enforceable — what lawyers call “self-enforcing” — but rather could only go into effect if Congress passed a law directing its implementation. Such legislation is not today in existence.
Woah, wait a minute. I find that very confusing. What in the world is Griffins’s Case? Had to do a little research on that one.
The argument back then appeared to be that the state couldn’t bring charges under the constitution without Congress approving the state’s actions. At least that is how I interpret it. Here is what I found:
….The only ostensible basis for the upside-down view of federalism that state courts are helpless to enforce the U.S. Constitution without specific congressional action is an 1869 lower court decision that applied Section Three of the Fourteenth Amendment to the then-unreconstructed state of Virginia. See Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5,815).
The plaintiff, Caesar Griffin, was convicted in state court of assault. Id. at 22. He brought a federal habeas corpus petition alleging that his conviction was unlawful because the Virginia judge who presided over his trial was ineligible to serve under Section Three. Id. at 22-23.
Griffin’s Case was heard by a two-judge court presided over by Chief Justice Salmon P. Chase, acting in his capacity as a Circuit Justice. See id. at 22. The petition was rejected on the ground that Section Three was not selfenforcing and that an Act of Congress was required for enforcement.8
A circuit court decision, even one written by a sitting chief justice, doesn’t formally bind the judiciary or even the other courts of appeal.
Nevertheless, the opinion is overwhelmingly the most important precedent interpreting Section 3. It has not been seriously questioned by the Supreme Court or the other courts of appeal since it was set down more than 150 years ago. Because it is still on the books, ignoring it would be an act of legal irresponsibility.
Back to our current case:
To be sure, Chase’s logic in Griffin’s Case is a bit tortured, as Baude and Paulsen’s article shows over some 20 pages. Chase was clearly trying to achieve a near-term legal objective (upholding convictions by judges who had once been associated with the Confederacy and might have been disqualified by Section 3).
He also likely had a longer-term political objective, namely giving a majority in Congress the ability to decide whether Section 3 would be applied, rather than requiring two-thirds of Congress to lift the bar on office.
But nearly every important judicial opinion reflects legal and political judgments. The whole idea of precedent is that it stays in place until the courts reject it.
Originalists don’t like that. In fact, they don’t like precedent much at all, because they think a law’s original meaning has more validity than later judges’ interpretation.
That’s one of the things that’s wrong with originalism. Although theoretically designed to constrain courts, originalism in fact invites judges — and others — to disrupt long-established law in favor of their preferred policy positions, dressed up as original meaning.
So, there you have it folks. Based on what I have shared, should Trump be on the ballot to run for President, or did his involvement in the January 6th mess disqualify him?
I don’t know. The choice of who you vote for should be yours and yours alone. For that reason, I say, let him run. The people will decide.