Former President Donald Trump was booked then released from a Georgia jail this week. It was his fourth arrest, and second related to his efforts to overturn the 2020 presidential election.
University of St. Thomas constitutional law professor Michael Stokes Paulsen says a jury needn’t find Trump guilty of the charges to bar him from serving a second term; the U.S. Constitution already does.
Paulsen and University of Chicago professor William Baude say they spent a year researching whether Section 3 of the Fourteenth Amendment applies to Trump. It reads:
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.
Paulsen and Baude are active in the conservative Federalist Society and originalists, meaning they interpret the Constitution as it is written. And that perspective has led them to the conclusion that the text does, indeed, disqualify Trump from holding office.
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They lay out their argument in this month’s issue of the University of Pennsylvania Law Review.
Paulsen joined All Things Considered this week to talk about his findings and who would be responsible for enforcing this interpretation of the Constitution.
Read a transcript of the conversation below or click play on the audio player above to hear it. Both have been lightly edited for clarity and length.
What's the constitutional argument here, as you see it, that Trump can't run for president again?
The long short of it is this provision called Section 3 of the Fourteenth Amendment, which disqualifies from future federal or state office — across a broad swath of public offices — persons who previously held an office requiring an oath to the Constitution, but who then subsequently engaged in insurrection or rebellion against the same, or gave aid and comfort to the enemies thereof.
Now, this is a provision that was originally written at the end of the Civil War and incorporated into the Fourteenth Amendment as part of Reconstruction. And the idea was to keep former Confederate officers and persons who fought in the Confederate army who had previously sworn an oath to the Union but then engage in rebellion, from coming right back into office.
So the nub of our argument is that this provision is not limited to the Civil War situation. It is still in effect, it is legally automatic and entirely separate from criminal prosecutions.
So what is the argument on the other side?
I think the most obvious is people look at it and their first reaction is, ‘Oh, that was a Civil War thing.’
But we spend about 20 pages explaining that the Constitution is a written text. It's not limited to the historical circumstances that gave rise to its adoption. And it continues in effect, as long as the rules apply.
The First Amendment is an old provision. The Constitution, itself, is old. And so I think it is, to some extent, counterintuitive for people to think that this could apply to modern circumstances. But there it is in black and white and its terms, if they apply, apply today the same as they wouldn't 150 years ago.
Trump has not been convicted. Does that make a difference?
The criminal prosecution system is entirely separate from the constitutional disqualification.
The Constitution contains a number of qualifications or limitations on who can hold office for the President: you have to have been a natural born citizen, you can't have been born abroad, you must be at least 35 years of age, you can't have served two terms. Our argument is that Section 3 is written exactly the same way.
Now, the way that section three gets implemented, will be entirely different from criminal prosecution. If someone is running for an office for which they're disqualified, a variety of state and local election officials have to make a determination of whether they can be put on the ballot the first place. You can expect that whatever a state secretary of state determines in terms of ballot eligibility, it'll be contested by one side or the other and eventually wind up in court.
If he is convicted in either case, does that make this more likely to happen?
It's likely that the criminal cases might be stretched out until it's virtually too late to consider these constitutional arguments. The constitutional argument needn’t wait any outcome in a particular criminal trial.
If he is the party's nominee and actually wins the election, wouldn't it cause a huge constitutional crisis, if then he were found ineligible to serve at that point?
Absolutely. In fact, I think a number of political columnists have made the point that this issue should be resolved sooner rather than later.
You yourself are involved in the Federalist Society. I'm wondering, what do you hear about these arguments? And why haven't they gotten more traction nationally and in the Republican Party?
In early 2022, my co-author and I thought we should look at these arguments and take them seriously. And we are legal conservatives. In constitutional jargon, we are originalists. And by that we mean we adhere to the original meaning of the text of the Constitution as it would have been understood at the time of adoption. And so we just decided to explore these issues, and actually do the work. And really, somewhat to our surprise, it has gotten a lot of traction and attention just in the past two weeks.
In a way, we've obtained our objective of getting people to think about this seriously, really, for the first time and to realize that there's a rigorous, important constitutional argument that applies to a variety of circumstances, including this one.