On August 14, 2023 an article forthcoming from the University of Pennsylvania Law Review by William Baude of the University of Chicago Law School and Michael S. Paulsen of the University of St. Thomas School of Law became available as a preprint. The article argues that the third section of the Fourteenth Amendment is still in effect and automatically disqualifies those who engaged in insurrection or rebellion.
The events surrounding the 2020 presidential election have sparked intense debates about the limits of executive power and the consequences of attempting to overturn a democratic election. The actions of Trump and others in contesting the election results have raised questions about their eligibility to hold public office in the future.
The third section of the amendment states that no person shall hold office if they have engaged in insurrection or rebellion against the United States, or have given aid or comfort to its enemies.
Baude and Paulsen argue that the actions taken by Trump and his supporters in contesting the election results can be considered as engaging in insurrection or rebellion. They contend that attempting to overturn a legitimate election through unconstitutional means is a direct attack on the democratic process and the stability of the nation.
This interpretation is significant because Baude and Paulsen are associated with the legal doctrine of originalism, which emphasizes understanding the Constitution as the framers intended.
The Fourteenth Amendment was written by moderate Republicans after the Civil War to establish federal government supremacy and ensure equality before the law. The article’s authors claim that their interpretation has broader implications beyond Trump’s disqualification. Other legal scholars have supported their argument and emphasized the importance of upholding the Constitution.
By holding accountable those who engaged in insurrection or rebellion, the amendment reinforces the fundamental values of democracy and the rule of law.
While some may argue that disqualification under the Fourteenth Amendment would be a drastic measure, Baude and Paulsen maintain that it is a necessary step to preserve the integrity of the Constitution and prevent future attempts to undermine the democratic process. They emphasize that the disqualification clause was intentionally included in the amendment to ensure that those who engage in rebellion against the United States are held accountable and barred from holding public office.
They argue that the Fourteenth Amendment’s disqualification clause serves as a safeguard against those who seek to undermine the democratic process and the will of the people.