By Sharon Morioka
Michigan Law
At U-M’s annual Constitution Day commemoration, conservative law professor Michael Stokes Paulsen outlined the argument that Donald Trump is ineligible to run for president in 2024, based on provisions in Section 3 of the 14th Amendment to the Constitution.
Paulsen, Distinguished University Chair and law professor at the University of St. Thomas School of Law, spoke on September 18 at the U-M Law School. A scholar of constitutional interpretation, he is the co-author, with Professor William Baude of the University of Chicago, of “The Sweep and Force of Section Three” in the University of Pennsylvania Law Review.
In their article, the two legal scholars state that Section 3—which forbids former office holders from holding office again if they have participated in insurrection or rebellion—applies to the attempted overthrow of the 2020 presidential election results.
“We think that there are basically two avenues for thinking about this,” Paulsen told the U-M audience. “One is engaging or giving aid or comfort to the insurrection of January 6 itself and the surrounding context. And then there's the broader effort to overthrow the result of a presidential election.”
The authors concluded that Trump engaged in an insurrection by “knowingly providing active, meaningful, and voluntary support, assistance, and encouragement to an attempt to prevent Congress and the vice president from certifying results of the election.”
Secondly, Paulsen added, the larger overall effort to overthrow lawful constitutional election results to install the election loser as the next president qualifies as an attempted coup d’etat against the American constitutional government.
The paper has been the subject of intense national interest, even outside the legal world and even before its August 14 publication date. Earlier this month, a group of voters in Minnesota sued to prevent Trump from appearing on the ballot; other states anticipate similar legal challenges on the horizon.
As of September 22, there have been more than 100,000 downloads of Paulsen and Baude’s paper. The Constitution Day speech, however, is one of the few times Paulsen has spoken publicly about it.
In their study, the authors put forth four propositions.
1. Section 3 is an enforceable part of the constitution.
Section 3 was adopted during Reconstruction, when many Southern states were sending former Confederate leaders to serve in the US government. Congress drafted Section 3 to disqualify anyone who had taken an oath to support the Constitution but had engaged in an insurrection or rebellion.
Paulsen said some people interpret Section 3 to be limited to the circumstances of the Civil War and Reconstruction. But he and his co-author, Baude, disagree.
“It is not limited to the historical circumstances, to the specific impetus that led Congress to propose an amendment for people to ratify,” Paulsen said. “In fact, earlier drafts of what became Section 3 would have limited its prohibition to the late rebellion—the recent unpleasantness of the Civil War. But in changing it, they changed it to a general prospective rule of law.”
2. Section 3 is “self-executing,” meaning that it is legally automatic.
Paulsen said that Section 3 does not require implementing legislation by Congress or prior criminal prosecutions or convictions for the constitutional rule to be in effect.
“And this we conclude based on a straightforward reading of the language of Section 3 and the context in which it was adopted,” he said. “It is a language of automatic legal effect. It is not a grant of power to Congress or someone else to enact a disqualification.”
This language ”No person shall” in Section 3 is essentially identical to other constitutional qualification provisions. For example, Article II states that “No Person except a natural born Citizen … shall be eligible to the Office of President,” and the 22nd Amendment states that “No person shall be elected to the office of the President more than twice.” Neither requires Congress to pass a statute to give them legal effect.
Additionally, state and federal officials should carry out the duties affected by Section 3, Paulsen explained.
“If you are a state secretary of state, and your constitutional responsibilities under state law include determining whether someone who applies to be on the ballot for election in that state is eligible or ineligible, you should apply Section 3 as one of the eligibility requirements.”
3. To the extent of any conflict with prior constitutional rules, Section 3 supersedes or qualifies them.
This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment, Paulsen said.
“There have been numerous cases of the Supreme Court saying the First Amendment does not protect conspiracy, solicitation, incitement, subject to some limitations, and material support of criminal activities,” Paulsen said. “If you hand someone, a bank teller, a note that says, ‘Your money or your life. Turn this over,’ you can't then say, ‘Oh, I was just engaging in freedom of speech.’”
A basic exception to the First Amendment, he added, is the fact that using words to commit legal wrongs does not immunize someone against the consequences of committing those wrongs.
4. Section 3’s substantive disqualification is sweeping in its terms.
Both Paulsen and Baude are constitutional originalists, “so we think that the meaning of a constitutional provision is determined by the original, objective public meaning words and phrases would have had at the time.”
To understand that meaning, they parsed the language of Section 3, including “insurrection or rebellion,” “engaged in,” “aid or comfort,” and “enemies thereof.” Their sources included contemporaneous dictionary definitions; other parts of the Constitution itself; and records of contemporaneous communications by President Lincoln, acts of legislation, and the Supreme Court decision in The Prize Cases.
Following this examination, they concluded that Section 3 applies to the attempted overthrow of the 2020 election results.
“We have a number of pages telling interesting stories about early contemporaneous interpretation,” Paulsen noted. “But here's the punchline: Almost all of the historical evidence points to an extremely broad reading of Section 3’s prohibition and what conduct could be said to violate it.
“So January 6 is an insurrection in which President Trump, we think, quite plainly engaged in prohibited conduct that disqualifies him from being in office again.”
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