Former President Donald Trump’s momentum is unquestionable. Even facing a potential fourth criminal indictment in Georgia, Trump remains the GOP front-runner. A conviction in any one of those cases would not necessarily bar him from continuing to run for office, or even from being sworn in should he win. But now two prominent conservative legal scholars have released a draft of a pending law review article arguing that Trump is constitutionally ineligible from reclaiming the White House. In doing so, they provide a necessary bulwark against Trump’s ongoing threat to American democracy.
The argument comes courtesy of University of Chicago law professor William Baude and Michael Stokes Paulsen, a professor at the University of St. Thomas School of Law. In the draft posted on SSRN, which is scheduled to be published next year in the University of Pennsylvania Law Review, they argue that Trump is barred from becoming president under Section 3 of the 14th Amendment. That clause, in summary, says that no person who previously swore to support the Constitution but then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” can be allowed to hold any federal or state office.
Baude and Paulsen’s specific legal pedigree makes their analysis stand out.
It’s not exactly a new argument. A recent report from Citizens for Responsibility and Ethics in Washington titled “Disqualified” used similar logic last month. Both analyses cite the recent case of Cuoy Griffin, a former New Mexico county commissioner who was removed from office last year under the provisions of Section 3. Both reject the notion that Trump’s First Amendment right to free speech supersedes the provisions laid out in the 14th Amendment. And they both draw heavily on the House Jan. 6 committee’s final report. That report, they say, proves Trump mobilized and motivated the mob that attacked the Capitol on Jan. 6, 2021, and thereby “engaged in” an insurrection against the Constitution through his actions and inactions.
But Baude and Paulsen’s specific legal pedigree makes their analysis stand out. Like the conservative majority on the Supreme Court, both scholars are originalists, who believe that the Constitution needs to be read and interpreted with its original meaning in mind, as well as textualists, who believe judges should primarily come to decisions based on the plain text of the law as written. Baude argued in The New York Times in 2020 that conservatives — including the justices on the court — need to stick with these guiding principles. Meanwhile, Paulsen and Baude are both members of the highly influential — and many would argue harmful — Federalist Society.
That background comes through early and often in their analysis, which rejects the idea that the context surrounding the clause’s drafting — the Reconstruction-era desire to exclude former Confederates from public office — should cause the actual words to be softened or muddled. That kind of plain text reading is a framework many progressive legal scholars and jurists disagree with. Here, though, it’s wielded in a way that emphasizes that Section 3 as written remains a viable part of the Constitution’s text. Baude and Paulsen also stress that because of how broad the text of the language is, it can — and should — be applied even beyond the relatively narrow application that the so-called Radical Republican drafters had in mind back in the late 1860s: “Its rule of disqualification is general, not limited to the Civil War era.”
That point is important when you consider the remaining issues that Baude and Paulsen grapple with. They argue that not only does Section 3 override previous (and arguably contradictory) clauses of the Constitution, it is also “legally self-executing,” meaning there’s no need for Congress or the courts to take any further action. “Section Three does not call for treason trials or the impeachment of secessionists,” they write. “It directly imposes an across-the-board disqualification and involves Congress only if Congress wishes to end it.”
Moreover, that disqualification must then be enforced at every level, they argue, including among federal and state officials and in the courts as well. For presidential candidates, “state election officials and state election law will frequently judge that candidate’s ballot eligibility, applying Section Three as described above, and subject to the usual avenues of judicial review.” The houses of Congress can, and should, vote to exclude members-elect who are disqualified under Section 3. And when state courts determine whether someone may be disqualified under the provision as viewed under their state’s law, as in the recent case of Republican Rep. Marjorie Taylor Greene of Georgia, their decisions should reflect the supremacy of the Constitution over their own laws regarding elections and their administration.
Dozens upon dozens of state, county and local election officials are now charged with deciding whether to uphold and apply all parts of the Constitution when asked to place Donald J. Trump’s name on the ballot.
Unlike Trump’s legal eagles, Baude and Paulsen don’t try to claim that Congress or the vice president have the power to reject electoral votes cast for a disqualified candidate. But they do note that the language of Section 3 of the 20th Amendment states that if a disqualified candidate receives the most electoral votes, “then the Vice President elect shall act as President until a President shall have qualified.” They also address, and forcefully reject, an early argument against their view of Section 3 as being self-executing from then-Chief Justice Salmon Chase.
All of this builds to their conclusion that Section 3 as written “is quite sweeping, using overlapping terms to cover several different characterizations of major collective resistance to the authority of government under the Constitution.” Based on the evidence that we’ve seen from the Jan. 6 committee to this month’s indictment from special counsel Jack Smith to everything we’ve seen over the past three years would indicate that Trump’s actions fall under those broad headers. And, as the authors argue, taking Section 3 “seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election by engaging in or giving aid or comfort to acts of ‘insurrection or rebellion’ against the lawful constitutional order.”
What Baude and Paulsen have crafted is deeply reasoned and well-argued and, crucially for its role in any future challenge to Trump's candidacy, it is not coming at the matter from a liberal viewpoint. It also shifts some of the burden away from the courts and justice system, undermining the notion that only a criminal conviction can hold Trump truly accountable. As my colleague Zeeshan Aleem has argued, we’ve spent years waiting for prosecutors to either cast him out of office or stop his return to power. This is unnecessary under the legal framing Baude and Paulsen lay out. Instead, they argue and I agree, the dozens upon dozens of state, county and local election officials are now charged with deciding whether to uphold and apply all parts of the Constitution when asked to place Donald J. Trump’s name on the ballot.
