[The only question is whether American citizens today can uphold
that commitment.]
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THE CONSTITUTION PROHIBITS TRUMP FROM EVER BEING PRESIDENT AGAIN  
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J. Michael Luttig and Laurence H. Tribe
August 19, 2023
The Atlantic
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_ The only question is whether American citizens today can uphold
that commitment. _

, Illustration by Jared Bartman / The Atlantic. Sources: Chip
Somodevilla / Getty; U.S. National Archives and Records
Administration.

 

As students of the United States Constitution for many decades—one
of us as a U.S. Court of Appeals judge, the other as a professor of
constitutional law, and both as constitutional advocates, scholars,
and practitioners—we long ago came to the conclusion that the
Fourteenth Amendment, the amendment ratified in 1868 that represents
our nation’s second founding and a new birth of freedom, contains
within it a protection against the dissolution of the republic by a
treasonous president.

This protection, embodied in the amendment’s often-overlooked
Section 3, automatically excludes from future office and position of
power in the United States government—and also from any equivalent
office and position of power in the sovereign states and their
subdivisions—any person who has taken an oath to support and defend
our Constitution and thereafter rebels against that sacred charter,
either through overt insurrection or by giving aid or comfort to the
Constitution’s enemies.

The historically unprecedented federal and state indictments of former
President Donald Trump have prompted many to ask whether his
conviction pursuant to any or all of these indictments would be either
necessary or sufficient to deny him the office of the presidency in
2024.

Having thought long and deeply about the text, history, and purpose of
the Fourteenth Amendment’s disqualification clause for much of our
professional careers, both of us concluded some years ago that, in
fact, a conviction would be beside the point. The disqualification
clause operates independently of any such criminal proceedings and,
indeed, also independently of impeachment proceedings and of
congressional legislation. The clause was designed to operate directly
and immediately upon those who betray their oaths to the Constitution,
whether by taking up arms to overturn our government or by waging war
on our government by attempting to overturn a presidential election
through a bloodless coup.

The former president’s efforts to overturn the 2020 presidential
election, and the resulting attack on the U.S. Capitol, place him
squarely within the ambit of the disqualification clause, and he is
therefore ineligible to serve as president ever again. The most
pressing constitutional question facing our country at this moment,
then, is whether we will abide by this clear command of the Fourteenth
Amendment’s disqualification clause.

We were immensely gratified to see that a richly researched article
soon to be published in an academic journal has recently come to the
same conclusion that we had and is attracting well-deserved attention
outside a small circle of scholars—including Jeffrey Sonnenfeld and
Anjani Jain of the Yale School of Management, whose encouragement
inspired us to write this piece. The evidence laid out by the legal
scholars William Baude and Michael Stokes Paulsen in “The Sweep and
Force of Section Three,” available
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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 other provision, clause, and word
of the Constitution that has not been repealed or revised by
amendment.

Baude and Paulsen also conclude that Section 3 requires no
legislation, criminal conviction, or other judicial action in order to
effectuate its command. That is, Section 3 is “self-executing.”
(Other scholars have relied on Chief Justice Salmon P. Chase’s
poorly reasoned opinion in an 1869 case called _In Re Griffin_ to
support the contrary view. Baude and Paulsen decisively
dismantle _Griffin_ as a precedent.)

They conclude further that disqualification pursuant to Section 3 is
not a punishment or a deprivation of any “liberty” or “right”
inasmuch as one who fails to satisfy the Constitution’s
qualifications does not have a constitutional “right” or
“entitlement” to serve in a public office, much less the
presidency. (For that reason, they argue that the section, although it
does not entirely override preexisting limits on governmental power,
such as the First Amendment’s ban on abridgments of the freedom of
speech, powerfully affects their application.) Finally, the authors
conclude that Section 3 is “expansive and encompassing” in what it
regards as “insurrection or rebellion” against the constitutional
order and “aid and comfort to the enemies” of the United States.

Baude and Paulsen are two of the most prominent conservative
constitutional scholars in America, and both are affiliated with the
Federalist Society, making it more difficult for them to be dismissed
as political partisans. Thus it is all the more significant and
sobering that they do not hesitate to draw from their long study of
the Fourteenth Amendment’s text and history the shattering
conclusion that the attempted overturning of the 2020 presidential
election and the attack on the Capitol, intended to prevent the joint
session from counting the electoral votes for the presidency, together
can be fairly characterized as an “insurrection” or
“rebellion.” They write:

The bottom line is that Donald Trump both “engaged in”
“insurrection or rebellion” and gave “aid or comfort” to
others engaging in such conduct, within the original meaning of those
terms as employed in Section Three of the Fourteenth Amendment. If the
public record is accurate, the case is not even close. He is no longer
eligible to the office of Presidency, or any other state or federal
office covered by the Constitution.

At the time of the January 6 attack, most Democrats and key
Republicans described it as an insurrection for which Trump bore
responsibility. We believe that any disinterested observer who
witnessed that bloody assault on the temple of our democracy, and
anyone who learns about the many failed schemes to bloodlessly
overturn the election before that, would have to come to the same
conclusion. The only intellectually honest way to disagree is not to
deny that the event is what the Constitution refers to as
“insurrection” or “rebellion,” but to deny that the
insurrection or rebellion matters. Such is to treat the Constitution
of the United States as unworthy of preservation and protection.

Baude and Paulsen embrace the “idea that men and women who swore an
oath to support the Constitution as government officials, but who
betrayed that oath by engaging in or abetting acts of insurrection or
rebellion against the United States, should be disqualified from
important positions of government power in the future (unless forgiven
by supermajorities of both houses of Congress).” To them, as to us,
this will forever “remain a valid, valuable,” and “vital
precept” for America.

Section 3’s disqualification clause has by no means outlived its
contemplated necessity, nor will it ever, as the post–Civil War
Framers presciently foresaw. To the contrary, this provision of our
Constitution continues to protect the republic from those bent on its
dissolution. Every official who takes an oath to uphold the
Constitution, as Article VI provides every public official must, is
obligated to enforce this very provision.

The Baude-Paulsen article has already inspired a national debate over
its correctness and implications for the former president. The former
federal judge and Stanford law professor Michael McConnell cautions
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“we are talking about empowering partisan politicians such as state
Secretaries of State to disqualify their political opponents from the
ballot … If abused, this is profoundly anti-democratic.” He also
believes, as we do, that _insurrection_ and _rebellion_ are
“demanding terms, connoting only the most serious of uprisings
against the government,” and that Section 3 “should not be defined
down to include mere riots or civil disturbances.” McConnell worries
that broad definitions of _insurrection_ and _rebellion_, with the
“lack of concern about enforcement procedure … could empower
partisans to seek disqualification every time a politician supports or
speaks in support of the objectives of a political riot.”

We share these concerns, and we concur that the answer to them lies in
the wisdom of judicial decisions as to what constitutes
“insurrection,” “rebellion,” or “aid or comfort to the
enemies” of the Constitution under Section 3.

As a practical matter, the processes of adversary hearing and appeal
will be invoked almost immediately upon the execution and enforcement
of Section 3 by a responsible election officer—or, for that matter,
upon the failure to enforce Section 3 as required. When a secretary of
state or other state official charged with the responsibility of
approving the placement of a candidate’s name on an official ballot
either disqualifies Trump from appearing on a ballot or declares him
eligible, that determination will assuredly be challenged in court by
someone with the standing to do so, whether another candidate or an
eligible voter in the relevant jurisdiction. Given the urgent
importance of the question, such a case will inevitably land before
the Supreme Court, where it will in turn test the judiciary’s
ability to disentangle constitutional interpretation from political
temptation. (Additionally, with or without court action, the second
sentence of Section 3 contains a protection against abuse of this
extraordinary power by these elections officers: Congress’s ability
to remove an egregious disqualification by a supermajority of each
House.)

The entire process, with all its sometimes frail but thus far
essentially effective constitutional guardrails, will frame the effort
to determine whether the threshold of “insurrection” or
“rebellion” was reached and which officials, executive or
legislative, were responsible for the January 6 insurrection and the
broader efforts to reverse the election’s results.

The process that will play out over the coming year could give rise to
momentary social unrest and even violence. But so could the failure to
engage in this constitutionally mandated process. For our part, we
would pray for neither unrest nor violence from the American people
during a process of faithful application and enforcement of their
Constitution.

If donald trump were to be reelected, how could any citizen trust
that he would uphold the oath of office he would take upon his
inauguration? As recently as last December, the former
president posted
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Truth Social his persistent view that the last presidential election
was a “Massive Fraud,” one that “allows for the termination of
all rules, regulations, and articles, even those found in the
Constitution.”

No person who sought to overthrow our Constitution and thereafter
declared that it should be “terminated” and that he be immediately
returned to the presidency can in good faith take the oath that
Article II, Section 1 demands of any president-elect “before he
enter on the Execution of his Office.”

We will not attempt to express this constitutional injunction better
than did George Washington himself in his “Farewell Address
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to the nation, in 1796:

The basis of our political systems is the right of the people to make
and to alter their Constitutions of Government. But the Constitution
which at any time exists, till changed by an explicit and authentic
act of the whole people, is sacredly obligatory upon all. The very
idea of the power and the right of the people to establish Government
presupposes the duty of every individual to obey the established
Government.

All obstructions to the execution of the Laws, all combinations and
associations, under whatever plausible character, with the real design
to direct, control, counteract, or awe the regular deliberation and
action of the constituted authorities, are destructive of this
fundamental principle, and of fatal tendency …

However combinations or associations of the above description may now
and then answer popular ends, they are likely, in the course of time
and things, to become potent engines, by which cunning, ambitious, and
unprincipled men will be enabled to subvert the power of the people,
and to usurp for themselves the reins of government; destroying
afterwards the very engines which have lifted them to unjust dominion.

Our first president may well have been our most prescient. His fears
about “cunning, ambitious, and unprincipled men” have, over the
centuries, proved all too well founded. But his even stronger hopes
for the republic were not misplaced. Still today, the Constitution,
through its Reconstruction Amendments, contains a safeguard that it
originally lacked—a safeguard against the undermining of our
constitutional democracy and the rule of law at the hands of those
whose lust for power knows no bounds.

The men who framed and ratified the Fourteenth Amendment entrusted to
us, “the People of the United States,” the means to vigilantly
protect against those who would make a mockery of American democracy,
the Constitution, the rule of law—and of America itself. It fell to
the generations that followed to enforce our hallowed Constitution and
ensure that our Union endures. Today, that responsibility falls to us.

_J. MICHAEL LUTTIG
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federal judge on the U.S. Court of Appeals for the Fourth Circuit._

_LAURENCE H. TRIBE
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Loeb University Professor of Constitutional Law Emeritus at Harvard
University._

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