Yesterday the Colorado supreme court ruled by a vote of 4 to 3 (in Anderson v. Griswold) that section 3 of the Fourteenth Amendment disqualifies Donald Trump from holding the office of president. The majority ruling draws heavily on a recent law-review article by law professors Will Baude and Mike Paulsen, “The Sweep and Force of Section Three.”
I offer here some very tentative thoughts. Let me begin by quoting 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.
For sake of analysis, it’s useful to break section 3 into three parts:
1. Who is subject to section 3’s bar? Anyone “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” committed disqualifying conduct.
2. What past conduct is disqualifying? Having “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.”
3. Which offices does section 3 bar a disqualified person from holding? “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.”
Baude and Paulsen argue in detail that section 3 “covers a broad range of former offices, including the Presidency,” that it “covers a broad range of conduct against the authority of the constitutional order,” and that its disqualification bar applies to “an extraordinarily broad swath of public offices,” including the presidency.
On question 1, law professors Josh Blackman and Seth Barrett Tillman argue (in part V here) that a president is not “an officer of the United States” subject to section 3’s bar. Former Attorney General Michael Mukasey argues likewise in this Wall Street Journal op-ed.
On question 2, law professor Michael McConnell warns that terms like insurrection and rebellion “should not be defined down to include mere riots and civil disturbances.” In order to avoid “empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot,” he advises that terms in section 3 should be given “the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent.” (Blackman and Tillman also argue against the breadth of the Baude/Paulsen reading.)
Without offering any thoughts on questions 1 and 2, I would like to highlight an important possible answer to question 3. Here I draw on a very brief paper by New York lawyer David E. Weisberg.
Let’s start with the basic fact that section 3 does not state that “No person shall be President or Vice-President, or 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.” The italicized words are completely missing. The list of what Baude and Paulsen call “disqualified-from” positions proceeds roughly in descending order, and even includes “elector of President and Vice-President,” but it does not start with the two top positions in the executive branch. To be sure, it’s possible to read the phrase “any office, civil or military, under the United States” as a catch-all to include them. But is that really the best, most natural reading of section 3?
As Weisberg points out, there was ample reason for the drafters of section 3 to have deliberately excluded “President” and “Vice President” from the disqualified-from positions:
[T]he specifically barred federal offices all entail elections in individual States simply because there was a concern among legislators drafting and approving Section 3 that unreconstructed rebel voters might constitute majorities in individual States that had formerly been in the Confederacy. But, in contrast, it was virtually a mathematical certainty that the national electorate would not be so constituted—that is, the national electorate could never have a majority of unreconstructed rebel voters.
In short, “there would have been no reason to deny voters an entirely free choice for president and vice president.” Indeed, by barring a disqualified individual from serving as “elector of President and Vice-President,” the provision provides a further guarantee against election of an “unreconstructed rebel” as president or vice president.
Baude and Paulsen (and the Colorado supreme court) address this argument. They quote a brief colloquy between two senators in which one senator asks why section 3 does not bar a disqualified person from being president or vice president and the other senator seems to satisfy him by pointing out the supposed catch-all phrase. I am inclined to share Weisberg’s concern that this colloquy does not provide any real insight into, and certainly does not trump (so to speak) the original public meaning of section 3.
(For what it’s worth, I very much hope that Donald Trump is not on the presidential ballot next November.)