Seth Barrett Tillman and I wrote a new draft article, titled Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen.
Here is the abstract:
Does the full "sweep and force" of Section 3 of the Fourteenth Amendment disqualify Donald Trump from the presidency? In a new article, William Baude and Michael Stokes Paulsen argue that the answer is yes because "essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . ." This sweeping conclusion is not accurate. Establishing the original public meaning of Section 3 is difficult because there is originalist and textualist evidence pointing in different directions. Our research is built on more than a decade of scholarship in areas that are, regrettably, neglected in modern courts and scholarship, but would have been well understood in the 1860s.
Our Article proceeds in five parts. Part I begins with a threshold question: Is Section 3 of the Fourteenth Amendment self-executing? Baude and Paulsen say the answer is yes, pointing to other provisions of the Constitution as models. Yet, the answer is not so clear. Constitutional provisions are not automatically self-executing, nor is there any presumption of self-execution for such provisions. We will illustrate our position with discussions of the Supreme Court's appellate jurisdiction, Article I qualifications, and more. Section 1 of the Fourteenth Amendment, which includes the Due Process and Equal Protection Clauses, can only be wielded as a sword supporting affirmative relief with federal enforcement legislation, such as Section 1983. But, even absent enforcement legislation, Section 1 of the Fourteenth Amendment can be wielded as a shield as a set of defenses. Section 1 is self-executing in the latter regard, but not the former. If Section 1 is a guide, then Section 3 cannot be used as a sword to disqualify Trump, absent federal enforcement legislation. Trump has not been disqualified pursuant to any federal enforcement legislation. If Section 3 requires federal enforcement legislation, then States cannot unilaterally remove Trump from the ballot.
Part II provides a careful study of Griffin's Case, a federal circuit court case decided by Chief Justice Salmon P. Chase in 1869. Chase stated expressly that Section 3 can only be enforced by Congress through federal legislation. Yet, Baude and Paulsen tar-and-feather Griffin's Case, and their article reads like an effort to discredit Chase. But their criticisms miss the mark. They fault Chase for not adhering to doctrines developed decades later, and they condemn Chase for breaching invented ethical standards. All things considered, Griffin's Case lies in the heartland of judicial thinking and scholarship. Baude and Paulsen misread Griffin's Case, misunderstood Chase, and misconstrued the holding. Chase's opinion was, and remains, reasonably probative evidence of the original public meaning of Section 3, and whether it is or is not self-executing.
Part III turns to another case that Chief Justice Chase presided over. This case also implicated Section 3: the treason indictment against Jefferson Davis. A version of the case, reported nearly a decade after it was decided, includes a sentence which suggests that Chase viewed Section 3 as self-executing. If so, the Case of Jefferson Davis (1868) would seem to be in tension with Griffin's Case (1869). However, this sentence was added to the report by a former confederate general who had apparently plotted to kidnap Abraham Lincoln. Plus, the general was subsequently the lawyer for the respondent, another former confederate, in Griffin's Case. The reporter's connection to the self-execution issue is some cause for concern. A contemporaneous report, published in 1869, does not include that sentence. Even taken on these terms, the two Chase opinions can be reconciled. Griffin was an applicant in a collateral challenge; he sought to use Section 3 as a sword, that is, offensively as a cause of action supporting affirmative relief, but he could not do so without enforcement legislation. By contrast, Davis sought to use Section 3 as a shield–as a defense in his criminal prosecution, and he could do so without enforcement legislation. Even under modern doctrine, Griffin's Case is not in tension with the Case of Jefferson Davis.
Part IV focuses on the conduct that can trigger a disqualification. The offense element of Section 3 has two prongs: (i) engaging in insurrection or rebellion against the United States, and (ii) giving aid or comfort to the enemies thereof. These elements are textually distinct, and they reflect longstanding aspects of domestic and international law. Yet, Baude and Paulsen conflate "engaged" in insurrection, a direct and substantive criminal law offense, with giving "aid or comfort" to enemies, which permits liability based on indirect and inchoate wrongs. And in the process, they constructed a new offense that does not appear in the text of Section 3: giving aid or comfort to insurrection. The text of Section 3's "engage" prong does not extend to wrongs and crimes that are inchoate or indirect. Nor does the "engage" prong extend to inaction—for example, failing to take action with regard to an insurrection or rebellion.
Part V considers another threshold question: was Trump ever subject to Section 3? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office on January 20, 2017. Section 3 of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an "Officer[] of the United States." In 2021 we published an article concluding "that the President is not a Section 3 'officer of the United States.'" In their article, Baude and Paulsen summarily dismiss our position. But Baude and Paulsen disregard substantial evidence about the meaning of the phrase "Officers of the United States" in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic. Instead of parsing the Constitution of 1788 and early debates, Baude and Paulsen focus on original intentions and consequentialism. These sorts of arguments are weak evidence of original public meaning and do not pass originalist muster. More importantly, Baude and Paulsen offer no complete or comprehensive theory to explain what other positions are included and excluded by the phrase "Officer of the United States." Without ever explaining what Section 3's "officer of the United States"-language means, they only seek to establish that the President falls in that category. In short, Baude and Paulsen punched a textualist ticket good for one ride on the Trump train.
The theoretical defects and other errors in Baude and Paulsen's article are not insubstantial, and they span multiple independent issues. And we see no sound basis for their article's startling conclusion: "In the end, essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . ." We suggest that scholars, litigants, elections administrators, and judges allow Baude and Paulsen's article to percolate in the literature before placing too great a reliance on its novel claims.
Comments are welcome.
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