Is Donald Trump Disqualified from the Presidency? (Matthew J. Franck, 1/11/24, Public Discourse)


I doubt that any academic article on the law has moved so rapidly from its circulation among scholars to the adjudication of the merits of its argument as “The Sweep and Force of Section Three,” by William Baude and Michael Stokes Paulsen. Initially posted to the Social Science Research Network in mid-August 2023—with publication still forthcoming in the pages of the University of Pennsylvania Law Review—Baude and Paulsen’s 126-page case for Donald Trump’s disqualification from the presidency has been downloaded more than 100,000 times and figures prominently in the reasoning of the Colorado supreme court’s decision of December 19 that Trump’s name cannot appear on the state’s primary election ballot. (It is not cited in the December 28 ruling by Maine’s secretary of state to the same effect, but one might say that Baude and Paulsen’s fingerprints are visible.) Other scholars reached the same conclusion both before and since their article’s appearance—and still others vehemently disagree with their conclusion. Some states have considered the question and permitted Trump to remain on primary ballots. The question is now headed to the U.S. Supreme Court.

The “Section Three” of Baude and Paulsen’s title is the third section of the Fourteenth Amendment, crafted by the Thirty-ninth Congress after the Civil War and ratified in 1868:

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 case against Trump, then, is that, having sworn the oath of office as president on January 20, 2017, he then on January 6, 2021 “engaged in insurrection or rebellion” against the constitutional order that was the subject of that oath. Thus, he is now ineligible for any office, state or federal, in the United States, or for service in Congress or any state legislature or as a presidential elector.