The Constitution Prohibits Trump From Ever Being President Again

The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in The Sweep and Force of Section Three, available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history and American history itself.  

Written with precision and thoroughness, the article makes the compelling case that the relevance of Section 3 did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision; that the provision was not and could not have been repealed by the Amnesty Act of 1872 or by subsequent legislative enactments; and that Section 3 has not been relegated by any judicial precedent to a mere source of potential legislative authority, but continues to this day by its own force to automatically render ineligible for future public office all former office holders who then participate in insurrection or rebellion, as Baude and Paulsen put it.  

Among the profound conclusions that follow are that all officials who ever swore to support the Constitution as every officer, state or federal, in every branch of government, must and who thereafter either engaged in insurrection or rebellion against the Constitution or gave aid and comfort to the enemies of that Constitution (and not just of the United States as a sovereign nation) are automatically disqualified from holding future office and must therefore be barred from election to any office.

Regardless of partisan leaning or training in the law, all U.S. citizens should read and consider these two simple sentences from 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.

The Fourteenth Amendment was promulgated and ratified in the context of postbellum America when, even after losing the Civil War, southern states were sending men to Congress who had held prominent roles in the Confederacy or otherwise supported acts of rebellion or insurrection against the United States.

The two of us have long believed, and Baude and Paulsen have now convincingly demonstrated, that notwithstanding its specific historical origin, Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified as does every

via www.msn.com

I’m just a simple corporate law professor, but I don’t see how Section 3 applies without some authoritative determination that DT did in fact engage in insurrection or rebellion. I mean, maybe he did, and maybe he didn’t.

In other news, I think highly of Mike Luttig, who interviewed me for Davis Polk back in the day. And Mike Paulsen was in my class at The Law School That Shall Not Be Named. So there’s that.