Judges have a complicated relationship with legal scholars. Law-review articles often make their way into court rulings, even in decisions of the Supreme Court. Justices Clarence Thomas and Neil Gorsuch tend to cite them the most, according to an analysis in June by Supreme Court stats guru Adam Feldman, while Justices Amy Coney Barrett and Ketanji Brown Jackson cite law-review articles the least.
Despite that reliance on one another’s work, the justices and other judges also have mixed feelings about the state of modern legal scholarship. “There is a great disconnect between the academy and the [legal] profession,” Chief Justice John Roberts told a judicial conference in 2011. “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something.” (Kant’s influence upon it, one legal scholar later found, was nonexistent.)
I rarely write about new law-review articles myself because even when they are interesting or insightful, they are almost never newsworthy on their own. A new paper on Section Three of the Fourteenth Amendment is a rare exception. Written by law professors William Baude and Michael Stokes Paulsen, it argues that the moribund Reconstruction-era provision that disqualifies participants in “insurrection or rebellion” from public office is still valid—and that it applies to former President Donald Trump and his allies.
“Despite its long slumber, Section Three of the Fourteenth Amendment is alive and in force,” the authors wrote. “It remains fully legally operative. It is constitutionally self-executing—that is, its command is automatically effective, directly enacted by the Constitution itself. And it is sweeping: It sweeps over earlier and inconsistent constitutional provisions. It sweeps in a broad range of conduct attacking the authority of the United States. And it sweeps in a broad category of former oath-swearing officeholders turned insurrectionists or aiders and comforters of insurrection or rebellion.”
The conclusion is notable not only for the strength of its arguments, which we’ll get to shortly, but also because of who made them. A great many legal scholars can be described as liberals or at least fall generally on the liberal side of the traditional political spectrum. Baude and Paulsen do not. Both are dedicated originalists, the school of constitutional interpretation most often associated with the conservative legal movement. Baude is regularly cited by the court’s conservative justices, including in last term’s major gun rights case. Paulsen once described Planned Parenthood v. Casey, which upheld Roe in 1993, as “the worst constitutional decision of the United States Supreme Court of all time.”
Their 126-page article lays out in exacting detail how Section Three—also sometimes called the Disqualification Clause—has been misunderstood by judges and lawyers alike since its enactment. That includes judges who recently ruled on cases involving January 6 sympathizers and concluded that Section Three was now a dead letter. Most importantly, they conclude that Section Three can be enforced by anyone who has the ability to judge the qualifications of candidates—including the many state and local officials who will be overseeing next year’s presidential election.
What is Section Three? In 1868, Radical Republicans in Congress ratified the Fourteenth Amendment as part of their ongoing effort to secure Black civil rights in the South. The amendment established that all formerly enslaved Americans who were born in the United States are citizens of the United States, overturning Dred Scott v. Sandford. It also forbids state and federal officials from denying any citizen the equal protection of the laws, and it gives Congress the power to deny congressional representation to any state that denies suffrage to its male residents.
In addition to those important measures, the Fourteenth Amendment also disqualified a wide range of public officials who had sworn to uphold the Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” from holding any public office thereafter. It grants Congress the ability to reverse that disqualification by a two-thirds vote—but unless Congress does so, it is permanent.
“To be sure, Section Three clearly bears the hallmarks of its historical context,” the professors wrote. “It is, for one thing, a radical rule. The sheer sweep of the disqualification from offices that it imposed on former Southern officeholders-turned-rebels was dramatic. Its operation was hugely disruptive of antebellum patterns of elite political leadership, apparently indifferent to inconvenience, and seemingly rather punitive in its consequences. Section Three is harsh. It is categorical. It is insistent. It seems to have been deliberately designed to turn the prior Southern political order upside down.”
Its impact was ultimately blunted by the Amnesty Act of 1872, through which Congress removed the disqualification from all but the highest-ranking members of the rebel leadership, and for many others in another act in 1898. Aside from an isolated effort to disqualify a socialist member of Congress during World War I, Section Three went unused and ignored. This was hardly the provision’s fault: Aside from the Civil War, there was no serious attempt to rebel against the federal government until January 6, 2021.
Interest in Section Three resurged after former President Donald Trump and his allies sought to overturn the 2020 election. Trumpworld’s plots culminated in an attack on the Capitol by a violent mob that Trump had summoned to Washington during the electoral vote count. Once inside the Capitol, Trump took no steps to restore order or aid the lawmakers under siege. In public remarks and private conversations, he even welcomed and justified the assault.
Baude and Paulsen conclude that the events of January 6 clearly count as an “insurrection or rebellion,” more likely the former of the two, under Section Three. They recount Trump’s actions at great length before concluding that he actively supported the attack by either tacit approval or deliberate inaction. “Taking these events as a whole, and judging them under the standard of Section Three, it is unquestionably fair to say that Trump ‘engaged in’ the January 6 insurrection through both his actions and his inaction,” they wrote. “Officials—administrators, courts, legislators—whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office.”
If some of this sounds familiar, that’s because Baude and Paulsen are not the first legal thinkers to apply Section Three to January 6. Last spring, a group of voters in North Carolina sought to disqualify then-Representative Madison Cawthorn from running in that year’s presidential election. Cawthorn sued the state board of elections to stop them. The case against Cawthorn, however, was comparatively weak: It largely hinged on his vote to reject the electoral count in certain states before and after the mob arrived. While those votes were anti-democratic and unjustifiable, I argued that an otherwise lawful legislative vote on its own did not rise to the level that Section Three demands without something more.
Nevertheless, that legal foray still offered a chance for courts to sketch out the contours of Section Three in today’s life. During the Cawthorn litigation, a federal district court judge concluded that Congress had effectively nullified Section Three in 1872. Not so, Baude and Paulsen argue. They note that Congress had no prospective power to immunize anyone from Section Three’s grasp, and that the 1872 law did not seek to do it in any event. “The power to remove an extant legal disability is not a power to rescind the legal rule that creates that disability,” they argue. “Thus, not only has Congress never purported to sunset Section Three, it lacks the power to do so by Section Three’s own terms.”
A three-judge panel in the Fourth Circuit Court of Appeals ultimately rejected the judge’s interpretation of the 1872 law—though it declined to either disqualify Cawthorn himself or delve into Section Three in greater detail. (Cawthorn was later defeated in a GOP primary, which made the entire matter moot.) But the issue will arise again as the 2024 presidential election creeps closer. And it will only take a single state or local election official’s invocation of Section Three to make it a live controversy for the courts to resolve.
To that end, Baude and Paulsen stress that Section Three is still the law of the land. They dispel counterarguments made by other legal scholars that the provision is a dead letter, or that it no longer applies outside of its historical context. “While evidence of intention, usage, purpose, and political context can assist in ascertaining the meaning of the enactment, it is that objective meaning that constitutes the law, not the ostensible purposes or motivations that supposedly lay behind it. This is ‘originalism,’ our system’s basic method for interpreting the Constitution and its amendments.”
Most importantly, they make a compelling case for its urgency. “Section Three remains a valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution,” the authors argued. “It falls to us to fulfill our duties to it. These include the duties of legislative bodies, state and federal election officials, executive officers, and perhaps others to take up the Constitution, including Section Three of the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies.”
I could not possibly summarize their 126-page article in all of its dimensions in this column, nor will I try. But their work stands as an important nudge for state and local election officials as they get ready to administer the 2024 elections, especially when it comes to deciding who can and can’t be on the ballot. It is also a valuable resource for federal judges or Supreme Court justices if they get called upon to consider the issue over the next 16 months.
That Baude and Paulsen are not Biden-loving partisans, and that they framed their reasoning in genuinely originalist terms that might resonate with the Supreme Court’s conservative majority, makes their conclusions all the more notable. If nothing else, from the justices’ perspective, it will be far more useful than any meditations on evidentiary approaches in eighteenth-century Bulgaria.