The Constitution Prohibits Trump From Ever Being
President Again
The only question is whether American citizens today
can uphold that commitment.
By J.
Michael Luttig and Laurence H. Tribe
AUGUST 19,
2023, 7:30 AM ET
As students
of the United States Constitution for many decades—one of us as a U.S. Court of
Appeals judge, the other as a professor of constitutional law, and both as
constitutional advocates, scholars, and practitioners—we long ago came to the
conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that
represents our nation’s second founding and a new birth of freedom, contains
within it a protection against the dissolution of the republic by a treasonous
president.
This
protection, embodied in the amendment’s often-overlooked Section 3,
automatically excludes from future office and position of power in the United
States government—and also from any equivalent office and position of power in
the sovereign states and their subdivisions—any person who has taken an oath to
support and defend our Constitution and thereafter rebels against that sacred
charter, either through overt insurrection or by giving aid or comfort to the
Constitution’s enemies.
The
historically unprecedented federal and state indictments of former President
Donald Trump have prompted many to ask whether his conviction pursuant to any
or all of these indictments would be either necessary or sufficient to deny him
the office of the presidency in 2024.
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Having
thought long and deeply about the text, history, and purpose of the Fourteenth
Amendment’s disqualification clause for much of our professional careers, both
of us concluded some years ago that, in fact, a conviction would be beside the
point. The disqualification clause operates independently of any such criminal
proceedings and, indeed, also independently of impeachment proceedings and of
congressional legislation. The clause was designed to operate directly and
immediately upon those who betray their oaths to the Constitution, whether by
taking up arms to overturn our government or by waging war on our government by
attempting to overturn a presidential election through a bloodless coup.
The former
president’s efforts to overturn the 2020 presidential election, and the
resulting attack on the U.S. Capitol, place him squarely within the ambit of
the disqualification clause, and he is therefore ineligible to serve as
president ever again. The most pressing constitutional question facing our
country at this moment, then, is whether we will abide by this clear command of
the Fourteenth Amendment’s disqualification clause.
We were
immensely gratified to see that a richly researched article soon to be
published in an academic journal has recently come to the same conclusion that
we had and is attracting well-deserved attention outside a small circle of
scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of
Management, whose encouragement inspired us to write this piece. The evidence
laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The
Sweep and Force of Section Three,” available as a preprint, is momentous.
Sooner or later, it will influence, if not determine, the course of American
constitutional history—and American history itself.
Written
with precision and thoroughness, the article makes the compelling case that the
relevance of Section 3 did not lapse with the passing of the generation of
Confederate rebels, whose treasonous designs for the country inspired the
provision; that the provision was not and could not have been repealed by the
Amnesty Act of 1872 or by subsequent legislative enactments; and that Section 3
has not been relegated by any judicial precedent to a mere source of potential
legislative authority, but continues to this day by its own force to
automatically render ineligible for future public office all “former office
holders who then participate in insurrection or rebellion,” as Baude and
Paulsen put it.
Among the
profound conclusions that follow are that all officials who ever swore to
support the Constitution—as every officer, state or federal, in every branch of
government, must—and who thereafter either “engaged in insurrection or
rebellion” against the Constitution or gave “aid and comfort to the enemies” of
that Constitution (and not just of the United States as a sovereign nation) are
automatically disqualified from holding future office and must therefore be
barred from election to any office.
Regardless
of partisan leaning or training in the law, all U.S. citizens should read and
consider these two simple sentences from Section 3:
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. But
Congress may by a vote of two-thirds of each House, remove such disability.
The
Fourteenth Amendment was promulgated and ratified in the context of postbellum
America when, even after losing the Civil War, southern states were sending men
to Congress who had held prominent roles in the Confederacy or otherwise
supported acts of rebellion or insurrection against the United States.
The two of
us have long believed, and Baude and Paulsen have now convincingly
demonstrated, that notwithstanding its specific historical origin, Section 3 is
no anachronism or relic from the past; rather, it applies with the same force
and effect today as it did the day it was ratified—as does every other
provision, clause, and word of the Constitution that has not been repealed or
revised by amendment.
Baude and
Paulsen also conclude that Section 3 requires no legislation, criminal
conviction, or other judicial action in order to effectuate its command. That
is, Section 3 is “self-executing.” (Other scholars have relied on Chief Justice
Salmon P. Chase’s poorly reasoned opinion in an 1869 case called In Re Griffin
to support the contrary view. Baude and Paulsen decisively dismantle Griffin as
a precedent.)
They
conclude further that disqualification pursuant to Section 3 is not a
punishment or a deprivation of any “liberty” or “right” inasmuch as one who
fails to satisfy the Constitution’s qualifications does not have a
constitutional “right” or “entitlement” to serve in a public office, much less
the presidency. (For that reason, they argue that the section, although it does
not entirely override preexisting limits on governmental power, such as the
First Amendment’s ban on abridgments of the freedom of speech, powerfully
affects their application.) Finally, the authors conclude that Section 3 is
“expansive and encompassing” in what it regards as “insurrection or rebellion”
against the constitutional order and “aid and comfort to the enemies” of the
United States.
Baude and
Paulsen are two of the most prominent conservative constitutional scholars in
America, and both are affiliated with the Federalist Society, making it more
difficult for them to be dismissed as political partisans. Thus it is all the
more significant and sobering that they do not hesitate to draw from their long
study of the Fourteenth Amendment’s text and history the shattering conclusion
that the attempted overturning of the 2020 presidential election and the attack
on the Capitol, intended to prevent the joint session from counting the
electoral votes for the presidency, together can be fairly characterized as an
“insurrection” or “rebellion.” They write:
The bottom
line is that Donald Trump both “engaged in” “insurrection or rebellion” and
gave “aid or comfort” to others engaging in such conduct, within the original
meaning of those terms as employed in Section Three of the Fourteenth
Amendment. If the public record is accurate, the case is not even close. He is
no longer eligible to the office of Presidency, or any other state or federal
office covered by the Constitution.
At the time
of the January 6 attack, most Democrats and key Republicans described it as an
insurrection for which Trump bore responsibility. We believe that any
disinterested observer who witnessed that bloody assault on the temple of our
democracy, and anyone who learns about the many failed schemes to bloodlessly
overturn the election before that, would have to come to the same conclusion.
The only intellectually honest way to disagree is not to deny that the event is
what the Constitution refers to as “insurrection” or “rebellion,” but to deny
that the insurrection or rebellion matters. Such is to treat the Constitution
of the United States as unworthy of preservation and protection.
Baude and
Paulsen embrace the “idea that men and women who swore an oath to support the
Constitution as government officials, but who betrayed that oath by engaging in
or abetting acts of insurrection or rebellion against the United States, should
be disqualified from important positions of government power in the future
(unless forgiven by supermajorities of both houses of Congress).” To them, as
to us, this will forever “remain a valid, valuable,” and “vital precept” for
America.
Section 3’s
disqualification clause has by no means outlived its contemplated necessity,
nor will it ever, as the post–Civil War Framers presciently foresaw. To the
contrary, this provision of our Constitution continues to protect the republic
from those bent on its dissolution. Every official who takes an oath to uphold
the Constitution, as Article VI provides every public official must, is
obligated to enforce this very provision.
The
Baude-Paulsen article has already inspired a national debate over its
correctness and implications for the former president. The former federal judge
and Stanford law professor Michael McConnell cautions that “we are talking
about empowering partisan politicians such as state Secretaries of State to
disqualify their political opponents from the ballot … If abused, this is
profoundly anti-democratic.” He also believes, as we do, that insurrection and
rebellion are “demanding terms, connoting only the most serious of uprisings
against the government,” and that Section 3 “should not be defined down to
include mere riots or civil disturbances.” McConnell worries that broad
definitions of insurrection and rebellion, with the “lack of concern about
enforcement procedure … could empower partisans to seek disqualification every
time a politician supports or speaks in support of the objectives of a
political riot.”
We share
these concerns, and we concur that the answer to them lies in the wisdom of
judicial decisions as to what constitutes “insurrection,” “rebellion,” or “aid
or comfort to the enemies” of the Constitution under Section 3.
As a
practical matter, the processes of adversary hearing and appeal will be invoked
almost immediately upon the execution and enforcement of Section 3 by a
responsible election officer—or, for that matter, upon the failure to enforce
Section 3 as required. When a secretary of state or other state official
charged with the responsibility of approving the placement of a candidate’s
name on an official ballot either disqualifies Trump from appearing on a ballot
or declares him eligible, that determination will assuredly be challenged in
court by someone with the standing to do so, whether another candidate or an
eligible voter in the relevant jurisdiction. Given the urgent importance of the
question, such a case will inevitably land before the Supreme Court, where it
will in turn test the judiciary’s ability to disentangle constitutional
interpretation from political temptation. (Additionally, with or without court
action, the second sentence of Section 3 contains a protection against abuse of
this extraordinary power by these elections officers: Congress’s ability to
remove an egregious disqualification by a supermajority of each House.)
The entire
process, with all its sometimes frail but thus far essentially effective
constitutional guardrails, will frame the effort to determine whether the
threshold of “insurrection” or “rebellion” was reached and which officials,
executive or legislative, were responsible for the January 6 insurrection and
the broader efforts to reverse the election’s results.
The process
that will play out over the coming year could give rise to momentary social
unrest and even violence. But so could the failure to engage in this
constitutionally mandated process. For our part, we would pray for neither
unrest nor violence from the American people during a process of faithful
application and enforcement of their Constitution.
If donald
trump were to be reelected, how could any citizen trust that he would uphold
the oath of office he would take upon his inauguration? As recently as last
December, the former president posted on Truth Social his persistent view that
the last presidential election was a “Massive Fraud,” one that “allows for the
termination of all rules, regulations, and articles, even those found in the
Constitution.”
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No person
who sought to overthrow our Constitution and thereafter declared that it should
be “terminated” and that he be immediately returned to the presidency can in
good faith take the oath that Article II, Section 1 demands of any
president-elect “before he enter on the Execution of his Office.”
We will not
attempt to express this constitutional injunction better than did George
Washington himself in his “Farewell Address” to the nation, in 1796:
The basis
of our political systems is the right of the people to make and to alter their
Constitutions of Government. But the Constitution which at any time exists,
till changed by an explicit and authentic act of the whole people, is sacredly
obligatory upon all. The very idea of the power and the right of the people to
establish Government presupposes the duty of every individual to obey the
established Government.
All
obstructions to the execution of the Laws, all combinations and associations,
under whatever plausible character, with the real design to direct, control,
counteract, or awe the regular deliberation and action of the constituted
authorities, are destructive of this fundamental principle, and of fatal
tendency …
However
combinations or associations of the above description may now and then answer
popular ends, they are likely, in the course of time and things, to become
potent engines, by which cunning, ambitious, and unprincipled men will be
enabled to subvert the power of the people, and to usurp for themselves the
reins of government; destroying afterwards the very engines which have lifted
them to unjust dominion.
Our first
president may well have been our most prescient. His fears about “cunning,
ambitious, and unprincipled men” have, over the centuries, proved all too well
founded. But his even stronger hopes for the republic were not misplaced. Still
today, the Constitution, through its Reconstruction Amendments, contains a
safeguard that it originally lacked—a safeguard against the undermining of our
constitutional democracy and the rule of law at the hands of those whose lust
for power knows no bounds.
The men who
framed and ratified the Fourteenth Amendment entrusted to us, “the People of
the United States,” the means to vigilantly protect against those who would
make a mockery of American democracy, the Constitution, the rule of law—and of
America itself. It fell to the generations that followed to enforce our
hallowed Constitution and ensure that our Union endures. Today, that
responsibility falls to us.
J. Michael
Luttig is a former federal judge on the U.S. Court of Appeals for the Fourth
Circuit.
Laurence H.
Tribe is a University professor of constitutional law emeritus at Harvard Law
School.
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