Constitutional Dread, Meet Fourteenth Amendment, Section Three: A Postscript* to How Leaders Come and Go
*The text of this Postscript stops without incorporating material after the February 8, 2024, oral arguments before the Supreme Court regarding Section Three of the Fourteenth Amendment. As a Postscript, it is “footnote light” compared to the traditional law review and to achieve timely publication in this online Forum, some footnotes may be completed post publication.
Abstract: In my previous Article on this Forum,[1] I analyzed how the United States has failed to remove a President through constitutionally provided, formal methods. Instead, American decision makers opt to use improvisational methods to evade the scars of formal removal: the result of what I call “Constitutional Dread.” Have all past Presidents really remained within our threshold of presidential decency? Scholars argue and congresspeople often vote that some Presidents’ actions warranted removal. Nevertheless, the United States has yet to declare a President unfit for office. While the immediate results of dread—improvisation and evasion—may prove practical, as evident in Nixon’s resignation, my previous Article questions what may be the long-term effects of such dread-filled tactics. At least, there is evidence it perpetuates the cycle of dread towards formal removal.
While I was finishing my last Article, scholars and court filings began to argue that the rarely used Fourteenth Amendment, Section Three, by its explicit language would bar Former President Donald Trump from being placed on a presidential ballot. Sounds like formal application of a constitutional method to remove a President from office. Faster than scholars could theorize, leaders and judges have unsurprisingly found ways to evade application of the Section. Sounds like dread.
BREAKING NEWS: The Colorado Supreme Court held, as I was working to complete this account of the hysterics that come with possible use of the apparent formal command of Amendment Fourteen, Section Three, that, indeed, Trump is an insurrectionist and the disqualification language of the Amendment also, indeed they said, applies to the President as an officer of the United States. All seven of justices agreed Trump is an insurrectionist and three dissents said the Colorado Supreme Court lacked the authority to rule him off the Republican primary ballot in Colorado, even though he indeed, yes, is ineligible. What I had written had already set out hair-on-fire warnings that no matter what the Amendment means, even if it means Trump is ineligible and even if Trump is the worst scoundrel known to the current human race, applying the Amendment to keep him out of the presidency would mean the end of the United States as we know it. The highly regarded scholar Lawrence Lessig has weighed in with such a combined claim of unfitness and eligibility, with warnings of hair conflagrations along with legal support of a claim Section Three excludes the President from its terms. Lessig provides the perfect combination of denunciation of Trump as monstrous, agreement he is an insurrectionist, a legal claim he is not covered by Section 3, and warnings about national political chaos unchained if Section is used to disqualify him. Given such readily available compendiums of legal argument and institutional dread, I feel able to leave it to the reader to listen to the din of warnings and hear me out, briefly we hope, on the response that originalists have said for years: we must apply the text as it reads no matter the consequences (think Second Amendment and periodic mass slaughter). It became known during the composition of this Postscript that the Supreme Court will review the Colorado decision, from the Lie Down in Your Originalist Bed message to the Justices, Apply the Constitution the way you said you do! to, No Supreme Court, Our Hair Is Burning and We Can’t Take It!
As I write this Postscript, we are thus watching the fate of Section Three in real time. The SCOTUS stakes are high. In my first piece (Leaders), after discussing fear, dread, and failure of the formal process of removing a leader from office, I looked closely at how nations with some democratic ethos have improvised an informal process: the forced resignation of Nixon, the regicide of Charles I, and the ouster of Mussolini by a secretive plot with the King of Italy to revive a Parliamentary process deformed by Fascism. In this piece, I will show similarities in the dread we face at removing a candidate for office from electoral competition to the dread we face at removing an elected leader. But there is one key difference between these situations: if the formal process (Section Three) fails, there are no likely improvisations; a rump Congress will not convict the alleged insurrectionist of treason, a King Biden will not order the military removal of Il Duce from Mar-a-Lago, and a Donald Trump will not be shamed by a formal process nearing a vote of expulsion into leaving the presidential race. And most significantly, we know a President Trump will never resign if re-elected. Ever.
That brings us squarely back to the constitutionally provided formal rule. What can we learn from dread-induced fear of the formal rule? What hair-on-fire arguments are being made by those who command a public forum: who fear the formal rule will prevail and by those who fear it will fail? Why is it likely that — yet again — the formal rule will fail? And finally, what scars might this leave behind?
INTRODUCTION
As How Leaders Come and Go (Leaders) was on the verge of completion, professors William Baude and Michael Stokes Paulsen created a stir with a forthcoming article in the Pennsylvania Law Review.[2] Their thesis, by now widely known, is that the post-Civil War Fourteenth Amendment, Section Three, on the basis of original clear meaning, renders ex-President Trump ineligible to serve as President or to “hold any office, civil or military, under the United States, or under any State.”[3] Furthermore, the authors argue state officials are obligated to keep him off the ballot. In their view of the matter, Trump has violated his oath of office. Hence, under the terms of the Amendment, as one who has violated his oath of office, Donald Trump cannot again serve in public office. So goes their argument.[4]
For this Postscript, the sudden appearance of law professor ingenuity (it does exist!)—legal scholars reading the Constitution can help midwife a big idea—poses a test of institutional and cultural resilience. In plain terms, the test is whether the effort to bring back to life a long dormant/neglected formal constitutional provision that has the effect of “removing” a former President from all possibility of serving in his former office is a good idea, or a proposal to bring about a national nervous breakdown.[5] Notably, “talking heads” and news scribblers generally agree that the former President the professors tell us is under constitutional disability is in line for his party’s nomination and has a realistic possibility of prevailing in the coming 2024 Presidential election.[6] So their claim is not a law exam issue spotter by a professor reaching for a novel brain teaser or a law review hypothetical with no real-world significance. It is a live test of the thesis of Leaders.[7] And of whether oaths matter for a President, and for those whose own oaths bind them to enforce the Constitution of this nation.
I. Amendment Fourteen, Section Three - Perfect Constitutional Formality?
The text of the Amendment is straightforward. It was written without procedural guidelines to apply without elaboration, given the common knowledge concerning those to whom it applied: former Confederates whose participation in the Civil War—the rebellion—was a violation of a former oath to the United States of America. The necessary argument for the Baude and Paulsen thesis is that “we” all possess similar common knowledge that the former President took an oath of office and then violated it by engaging in insurrectionary activity.[8] I will note here that the activity specifically targeted at the time—the risk that those who engaged in Civil War in defense of slavery might, if in offices with power, continue to target the Black population to prevent their participation in a multi-racial democracy—is strongly echoed by the insurrectionist 2020 efforts aimed at discrediting the votes of urban areas with significant numbers of Black voters.[9]
The abstract provided by Baude and Paulsen sets forth their arguments—of which there are four—with great clarity that cannot be improved. The assertions provide complete coverage of the legal interpretation required to demonstrate that the Amendment fully disqualifies Trump from office: it is in effect that it applies on its terms to his conduct—all while in office—and it supersedes (cancels) any constitutional defense he might raise.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies 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. Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as "aid or comfort." It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.[10]
Their argument is one of perfect formality, and, for that matter, the text of the Amendment is a formal declaration of a hard rule. As originalists, Baude and Paulsen go full bore on formalist claims: the text governs, it is plain, and it imposes a duty on all officials, state or federal, who judge the qualifications of a candidate for office. The Paulsenian duty of all such officials is to exclude Donald Trump from any official ballot in the states for President, including primary ballots.[11] Paulsen’s absolutism on the meaning of text and the nature of constitutional duty on the part of office holders is as total as any idea of constitutional formality capable of articulation. As Professor Paulsen has argued about the impeachment provisions of the Constitution regarding the inescapable duty of the House to impeach, and the Senate to convict for “high crimes and misdemeanors,”[12] Baude and Paulsen here argue that the absolute, un-evadable duty rests upon “every official, state or federal, who judges qualifications.” The locution bears repeating at the beginning and the end of this statement of the thesis. Importantly, the argument precludes pragmatic responses based upon anxiety about the political reception to an entire obedience of “every official, state or federal,” to the command of the Constitution. The only concession to ambiguity that might permit a conclusion that the former President is eligible under the Constitution is the meaning of the operative terms:
Section 3 Disqualification from Holding Office
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.[13]
I will return to Baude and Paulsen’s analysis of the operative terms in Section IV.
II. Dread, Panic, and Runaway Fear - A State Supreme Court Upholds Formality and Frightens Horses, Republicans and Even Some Democrats
Notably, as set forth in my wordy abstract, and to my anguish as I was writing this piece as follow-on to my article, a legal, political, and cultural eruption occurred in Colorado, with the terrible effects on equine equanimity and human harmony. The explosion came courtesy of a court, not in the mountainous setting from a newly discovered volcano in the Centennial state. Yet the holding of the Colorado Supreme Court is volcanic. My just published work examining empirical patterns of leader removal that often rely on tactics not prescribed in a formal governing plan and naming related evidence of anxiety and dread regarding official use of formal processes to remove a leader of any entity, institution or state, came to vivid life before our eyes. Accompanying demagoguery, simple hysterics, and bad arguments against the use of removal process authorized in law sprung upon the American presidential season in an otherwise placid holiday season.
The emerging test of my hypothesis seems to demonstrate in full the anxiety and dread about a formal process, or what I have named “Constitutional Dread” in the United States setting. The dread of formal process in this instance amply demonstrates half of my thesis but not the second part about tactics that take the place of formal rules. There is no obvious improvised solution. Here, by hypothesis and even by concession given by the many who are fearful of using the formal disqualifier, a leader appears subject to formal disqualification, and hence expulsion from occupying high office, but the possible deployment of the prescribed formal process raises a considerable fright with dire warnings of resulting chaos and even violence. The voices that call upon the voter as the substitute for the formal process concedes the failure both of process and ingenuity. Elections have winners and losers. The winner assumes office, even if ineligible. Some voices counseling voter input in part on the claim that the Amendment only bars service, argue that a formal solution would still remain available for a formal process to fully engage and remove the conceded-to-be-ineligible winner. Okay, let’s say it’s Trump. Both ideas—that Congress would act with fortitude and Trump would depart obediently—could be thought laughable. “An ounce of prevention is worth a pound of cure” becomes, “If we put it off, then we will be ready to do it when all we would have to do is remove a sitting President outside of the normal process of impeachment, which we could never do in all our national history. That way we will handle it without all that chaos and violence!” The claim is that suddenly the courage to apply a formal rule to expel a President will appear by magic, when the President is at the height of newly assumed and sharpened presidential powers. Yes.
Timing of this uproar is not on my side, vindicated though I be. My solution is to try to abbreviate my examples here from the past, minimize citations from the current eruption, and get on with demonstrating that my thesis is rock solid about a deeply embedded dread of an officially deployed process. A deep instinct, explained at length in Leaders, quakes at assignment of authorship to the officials who effectuate rules providing for defenestration of a top leader, in particular the U.S. President—and now as I write, the former President who is a candidate for return to a high office.
III. Dread-Inspired Arguments
We find ourselves confronting a constitutional formal process, in our national face, with live cultural ammunition in the hands of state officials, judges and members of Congress — all under oath to uphold the Constitution — as well as by law professors and scholars, well respected essayists, and everyone else, including cable news programs, social media, and the alleged insurrectionist himself. Did I say the use of formal process to expel a leader induces deep dread and is hard to do? I did. Will we be seeing some indication I am onto something? I think so. We are now within earshot of an explosion, anger, and some hope for the constitution to be actually applied on its apparent terms. I will not attempt to reproduce the explosion, lacking as I do a soundtrack. Instead, I will try to organize the “hair-on-fire” arguments against the formal rule, focusing on those who should know better.
A. Evasive Arguments in Theory – Voters and Judges
A standard argument, often used for impeachment, is “let the people (voters, many like to say) decide.”[14] I hinted above that an election installing an ineligible person as President is not really “deciding” the constitutional rule. Or as presidential candidate Nikki Haley has pronounced: “We don’t need to have judges making these decisions, we need voters to make these decisions.”[15] It is not clear entirely what is meant by “these decisions.” In a later pronouncement, candidate Haley opined: “And the idea that we go and say, just because these liberal justices don’t like him, they want to take him off the ballot — that’s not democracy, that’s not who we are. That’s not what we need to do.”[16] Not to be sarcastic, but that is a well-worn banality, here with particularized and well-worn animus toward judges, for arguing against allowing the officials assigned by a constitutional provision to follow a formal process designed to remove from direct popular input by vote and to require responsible officials to “do their duty” (also available as a platitude, banality, or, perhaps, cliché).[17] Clichés and banalities work and are often the friend of the lazy thinker, as well as the politician. They may hide a real idea, but don’t count on it, and don’t assume the idea it is hiding is the one presumably being telegraphed.
Further, Haley’s banality has the fatal weakness of actually committing the logical fallacy of “begging the question,” a term that in popular usage has lost its meaning in logic. In logic, the error of “begging the question” presumes the answer to a question that it cannot demonstrate without providing an argument.[18] Among the problems with a flat statement, “Let the voters decide, not the judges” is the reality, many increasingly see as unfortunate today, that the mechanism of popular vote is not the deciding input into a presidential election.[19] In the case of candidate Trump, he lost the popular vote in 2016 by 3,000,000 votes and in 2020 by more than 7,000,000.[20] Candidate Trump eked out a win in the electoral college in 2016 and in 2020 lost by a relatively small number of voters only in the sense that if the popular votes in just a few states had been different by a small amount, he could have won the electoral college despite a large loss in the choice made by “the voters.”[21] Thus, the candidate to whom candidate Haley refers is understood by at least one court and one state administrative body as well as many other legal commentators to be an insurrectionist and subject to constitutional disqualification.[22] Further, the candidate at issue has a record of falling well short twice of winning “the voters,” but capturing an electoral college win once and then suffering a loss in the electoral college. It is worth noting that the candidate in question never accepts a loss in which the voters reject him, and many of the same voices insisting that the voters must decide objected to counting the electoral votes from states that candidate lost but not those he won. The same House members who voted not to count electoral voters where their candidate for President lost had no problem counting the votes for their party, and for themselves, in the same states they argued did not run a legitimate election.[23] Can Nikki Haley the candidate be serious? Does she believe that the slogan of letting the voters decide meets the constitutional moment?
Let me hasten to add that I do not purport to provide a legal exegesis of the issue of Trump’s eligibility but only to examine the phenomenon of arguments against the application of formal rules to exclude a leader from office—here by relatively untested ex-ante rules excluding a former office holder from contention to reclaim an office, here, the presidency. If the arguments against applying the rules in any possible reading are not legal, what are they? At a minimum, they are a national disposition—a habit. Arguments against applying the rule, even if it applies, are sometimes opportunistic, but they hold wide cultural sway. Foot-stamping arguments against the rule—full stop, no way, no how—always can be cultural tender, whether properly seen as legal tender or not, and whether their expression takes a logical form or not. Justice Marshall’s pronouncement that “it is emphatically the province and duty of the judicial department to say what the law is” has held up well as cultural and legal tender excusing other officials from a response to constitutional meaning.[24] Professor William Wiecek has suggested, slyly, that Justice Marshall committed a logical fallacy, that of begging the question, or more simply put, circular reasoning. Wiecek has characterized Marshall’s use of duty in Marbury as “an instance of his ability to use a seemingly harmless truism to clinch an argument.”[25] The harmless truism is a help to those who wish to disclaim—not claim—duty.
In addition to “let-the-voters-decide’s” unfortunate status as a logical fallacy, we must further ask, “Why should judges not apply a constitutional provision that is legal in nature and therefore—possible banality alert!—they actually have a duty to apply the Constitution as written.”[26] Note that anyone speaking such a “chestnut(?)” imposing duty as a legal or moral command to another person, including an official, must pull a grave, concerned face. Interestingly, though, many of the grave faces in public commentary are being pulled by numerous suggestions and hopes that the justices on the Court find any plausible “off-ramps.”[27] The term, “off-ramp” sounds quite a lot like a ramp to avoid a plain meaning of the Fourteenth Amendment provision disqualifying an insurrectionist who remains popular from the high executive office of the presidency. As such, it both vindicates my thesis—Constitutional Dread—and poses a test for which the Supreme Court will supply the answer. That is, is the dread I describe that blocks the application of formal constitutional provisions for a forced exit of a top executive, here the President of the United States, the barrier I claim it be? We are in the midst of learning how great the dread can be. Note here, to be discussed further below, that Judge Luttig, while speaking legal analysis and taking the time to build a legal edifice in a sequence of logical claims, always looks grave, but is worth listening to.[28]
Last, on this point, if someone says, “Let the people decide,” if that person is an originalist, one should note that in that group of thinkers, “the People” are the 1989 “founders” and the ratifying voters, and next the current voters, and by the way, when pressed, they include the Reconstruction Era founders and voters, who enacted the Fourteenth Amendment.[29] Justice Gorsuch often emphasizes a hierarchy of the sources of the people’s will when explaining why he defers to the expression of the people’s will. His statements consistently create a hierarchy of “the people,” starting with the founders and only then moving to the voters of the current day, whom he urges to be active and to amend the Constitution if they do not like something in it that the judges are obligated to enforce as the existing authoritative statement of the people’s will.[30]
Hence, for the nation to be governed by “We the People” as to the disqualification clause, somebody must apply the Amendment in its “clear” meaning. Maybe judges? So as to “Let the People decide,” it cannot mean the current-day voters, because, manifestly and further, in the clear logic of Justice Gorsuch, it follows that, a presidential election is not an appropriate method of amending the Constitution.[31] In a possibly related theme, former Trump Attorney General Bill Barr referred to “this kind of action of stretching the law, taking these hyper-aggressive positions to try to knock Trump out of the race.”[32] Barr’s general idea was that formal action seeking to apply the Constitution to bar Trump would backfire and thus help Trump win the election—the return of the idea of practicality and pragmatism described in Leaders.[33] Barr’s “legal” claim boiled down to the idea it would take months to have sufficient fact finding to conclude Trump engaged in an insurrection, and he related that to “due process,” a questionable concept in the matter of a civil disability imposed by constitutional mandate.[34] On its way to causing an explosion of widespread Constitutional Dread, the Colorado Supreme Court also extensively explained that Section Three is self-executing, meaning there is no process stated in the Amendment that precludes a state court’s recognition that by its terms, the election code of Colorado makes inclusion of the candidate on their ballot a “wrongful act” by the Secretary of State.[35] Here, we can conclude that when Justice Gorsuch says, “Let the People decide,” it is not entirely question begging, since we already know the structure of his argument that leads us back to the People’s decision—the text written by the Founders and adopted by the People. When a politician says, “Let the People decide,” we are much more at sea.
B. Evasive Arguments in Practice - Michigan’s Secretary of State Balks
By Baude and Paulsen’s reasoning, state officials must obey their oath of office by preventing Trump’s inclusion on any ballot for President, including primary ballots. Notably, on September 13, 2023, Michigan Secretary of State Jocelyn Benson announced in an opinion piece that it is for the courts, not for election officials, to rule a candidate ineligible for the ballot on the basis of the provisions of the Fourteenth Amendment.[36] Benson’s piece is a master work of omission and illusion. She sets the stage with the Op Ed’s title (“It’s Not Up to Secretaries of State Like Me to Keep Trump Off the Ballot”), never explaining that there are very few Secretaries “like her,” and that Michigan’s election system is “one of the. most decentralized election systems in the nation.”[37] Instead, she argues that election officials generally have limited authority to rule a candidate off the ballot, a generality that was flatly rejected by the Colorado Court.[38] She adds to the illusion that she would be usurping her authority by suggesting that there is room for argument and counter argument on the words of the Amendment without quoting the language in question, a peculiar omission for a law professor and former Dean to make in piece written for the general reader. This textual feint allows her to present the controversy as if both sides had equal weight by minimizing the strong arguments that rest squarely on the plain language of the Amendment.[39]
Benson makes various arguments suggesting that there is room for argument and counter argument on the words of the Amendment and on the facts concerning Trump’s conduct. She argues that election officials generally have limited authority to rule a candidate off the ballot. She does not address whether an election must place a candidate for President on a ballot who is under the constitutionally required age of 35. Perhaps in that case, she might say there is not room for a counter argument, but she further argues that she can only act based on state law enumerating reasons for exclusion. The age requirement is not in her list, meaning she appears to be arguing it would be her duty to place a legally underage presidential candidate on the ballot.[40] Indeed, the argument by eminent constitutional scholars has been, in effect, that the exclusion for insurrectionary activity is as plain and self-executing in import as is the minimal age requirement of thirty-five.[41]
While Benson can rest her argument on a claim that state law relieves her of any obligation to follow constitutional mandates, the notion that a state election official is innocent of any obligation pursuant to the United States Constitution adopts the resort of political actors to evasion. She claims that her manifest duty is obedience to a formal state rule understood to deprive her office of a federal constitutional duty. She is surely calling on the deeply embedded lesson of Marbury v. Madison, which declared in 1803, “It is emphatically the province and duty of the judicial department to say what the law is.”[42] In Marbury, the Court was confronted with a law by Congress conferring jurisdiction on the Supreme Court to do an act not included in its original jurisdiction. The meaning of the Marbury opinion was that, when confronted with a law that directly ordered it to do an act not authorized to it in the Constitution, the Court itself necessarily held the ultimate say over the meaning of the constitutional provisions creating it and assigning it jurisdiction. The Court’s claim of ultimate authority could not be a suggestion that actors below the Court were free of the direct effect on them of constitutional commands. If such a rule were to be generally applicable, the very chaos feared by those arguing against applying the disqualifying Amendment against Trump would ensue and even become common. Officials at all levels would feel free to read local statutory provisions, when incomplete in specifying all features of their obligations as an officer of the state, to relieve them of the overriding constitutional rules set forth in the Constitution and ultimately interpreted by the Court.
Yet surely statutes written by state legislatures can be assumed to be intended to be administered subject to clear constitutional commands, unless the statute plainly orders state officials to act in violation of constitutional commands. Any other (cynical) understanding would create a race to the Court, all too often, to stop officials, such as election officials, from acting in direct conflict with established constitutional precepts. The clear understanding, not often required to be specified, is that state officials swear an oath to the United States Constitution. Michigan law[43] provides as follows as to the Secretary of State:
All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of .......... according to the best of my ability. No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust.[44]
Secretary of State Benson’s argument is one of role division. Nonetheless, Benson’s argument has received some support, of sorts, from the Minnesota example, where state law assigns the Secretary of State an explicit formal administrative role.[45] Yet the argument is arguably extreme in its implications, which are that oaths are too malleable to be trusted to all officials who take them.[46] It also suggests that state law creates a command of oath-taking obedience to the U.S. Constitution by an official while at the same time overruling her obedience to its clear mandates. What would be served by a Secretary of State’s inclusion, by command of a state statute, of an under-age candidate on a ballot?
Her better argument must be that Judge Luttig and Professor Tribe are wrong about the plain, original meaning of Amendment Fourteen, Section Three,[47] not that she is exempt from a constitutional obligation to obey the Constitution of the United States, particularly where state law contains no clear provision stating that she lacks the authority or the obligation to obey the United States Constitution, to the best of her ability. The statute requiring she place names on ballots can be read as a command circumscribed by constitutional ground rules for the office to which she has pledged fealty. In plain language, she must obey her oath to the Constitution of the United States. Where eminent constitutional scholars have made persuasive arguments about the clear meaning, an argument that ‘only the Supreme Court’ knows the answer to a question it has not addressed is evasion of duty.[48] Her only entirely valid argument as a constitutional oath taker is that Luttig and Tribe are wrong and that the Fourteenth Amendment, Section Three, would be defunct as obsolete or that the facts do not support the conclusion that Trump engaged in the conduct by which the Fourteenth Amendment renders him ineligible to the presidency.
I must note here that she has the available point that she has no mechanism for fact-finding. But her broader argument about her role overstates, in my view, the entire lack of an obligation to do more than disclaim it as a mandate. As a political office holder with possible ambition to advance to higher office, it is likely she does not wish to engage in contentious arguments with eminent constitutional experts about what the Amendment means. Disclaiming authority is the easier path for an election official. Nonetheless, her oath demands that she discharge her constitutional duty, guided by the best available input from experts who interpret the meaning of Section Three and its application to Trump’s conduct. Her argument evades the question, yet she is an officer who swore a duty to the U.S. Constitution. As such, she should act on the basis of a clear statement of her reading of the constitutional command to which she is subject. Mere rejection of any duty in light of the constitutional text does not suffice to demonstrate an obedience to constitutional command or a serious conduct for election integrity as imagined by Amendment Fourteen, Section Three.
Constitutional Dread leads to make-weight arguments to avoid difficult moments imposed by constitutional formality.[49] As discussed above, recurring argument in connection with impeachment has been, “Let the people decide.”[50] Yet that argument is an argument to remove the impeachment clause from the Constitution. It has even been made within memory by members of Congress who embrace originalism and absolute fidelity to constitutional text.[51] In a close issue of presidential conduct, where reasonable minds might differ, the impulse to leave the problem to an election has merit. But insofar as it argues that elections are the answer to the commission of proven “high crimes and misdemeanors,” or insurrection by a former office holder intent on a return to office which he (by hypothesis) dishonored his oath, it is a rejection of constitutional formality—to press the point, a rejection of constitutional government. The Benson argument is a rejection of constitutional text as binding on her office, not a claim that the question is too difficult to determine, though she does raise the issue of possible disagreement about Trump’s conduct. Would Benson, the former law school dean, argue in Court he did or did not engage in disqualifying conduct? Is her judgment on the matter in entire equipoise? Does she truly have no well-considered view of the plain words of the Amendment, or of Trump’s conduct?
C. Circular Reasoning - Arguing For Democracy by Arguing Against A Constitutional Protection of Democracy
The lapse of former Governor Haley into logical fallacy and simplistic slogan is an example of a horse-wrangler using tools at hand to soothe the horses, as well as her opponent’s followers. I will turn briefly to more abstract claims having to do with a preference for what at a higher level of analysis is an argument for a general preference in the United States to allow democratic process to resolve contested issues. Such arguments suggest that, where the law is arguably not entirely clear, judges lean in the direction of popular choice. In the specific controversy at hand, the argument might be that having the courts remove a candidate from the ballot is “anti-democratic” on its face and so the basis for doing it must be clear beyond rational debate.
In a context unrelated to the current crisis/controversy, Professor Richard Hasen, a leading election law expert, coined the term “democracy canon.”[52] Hasen identifies the democracy canon as a state court “canon of construction” favoring voters and states that it “appears to have no independent vitality in federal courts.”[53] Further, he describes it as having application in “three contexts: vote counting cases, voter eligibility cases, and candidate party/competitiveness cases.”[54] Only the third has any relevance at all to the application of a constitutional amendment imposing disqualification on a person who has taken an oath to support the U.S. Constitution and subsequently engaged in insurrection or rebellion against it or given aid and comfort to its enemies.[55] In addition, the relevance is attenuated given the gravity of the issue embedded in an amendment passed out of concern in the nineteenth century to bar former confederates who rebelled in part on the basis of a race agenda, one that they could be expected to embrace even after defeat to reduce former slaves to servitude and prevent their exercising their rights of citizenship and voting.[56] It is clear that much of the efforts of the former President and his followers in 2020 was to question and potentially disallow vote counts from substantially Black urban areas. Despite hyperbole arguing that the 2020 election was “stolen” and thus equating the attempt to de-certify electoral votes in states with urban populations with the protection of democracy and “freedom,”[57] and the disqualification of a President who sought to stop the certification of such votes anti-democratic, the claim is weak tea at best, and beyond any credibility at worst. Query: Is it beyond consideration that an insurrectionist would never abandon democracy-attacking efforts to overturn a free and fair election, if he loses? Is permitting a second round of insurrection protective of democracy? Why not implement a constitutional safeguard designed after the Civil War as a pro-democracy ground rule to protect public offices from being filled with persons not loyal to the Constitution as shown by taking an oath to it and then acting to tear it down? Why not protect the highest office of all from being occupied by an insurrectionist?
Notably, I leave open the possibility that Trump is not properly an insurrectionist, but on the facts at hand, if it is determined in a proper forum that he is, democratic ground rules are not his friend. First, the coded racial attack on the validity of votes from heavily minority cities belies a claim that the possible disqualification from serving a second term of a President who sought to block valid votes from certification is a loss to democracy. Second, as Judge Luttig explains in his lucid manner, even as he has taken to tweeting in his efforts to educate nonlawyers about the Constitution, “The Fourteenth Amendment itself, in Section 3, answers the question whether disqualification is ‘anti-democratic,’ declaring that it is not. Rather, it is the conduct that gives rise to disqualification that is anti-democratic, per the command of the Constitution.”[58] The gravamen of Section Three is pro-democracy—a shield of protection. Indeed, the only obviously anti-democratic amendment in the Constitution is Amendment Twenty-Two, which limits the President to two terms, thus withdrawing from the voters the right to choose a President whom they regard as worthy of more than two terms. If an ex ante ban on a President’s further service—for no alleged fault—on the ability of the voters to consider him for an additional term is within the norms of a strong national commitment to voter input, let alone deference to a leader’s dignity, surely voters have no greater claim on voting for someone, if he is found by civil process in courts with jurisdiction, to be ineligible for having committed insurrection. Each of these (the 14th and the 22nd) may, on its face, sound anti-democratic. But each was proposed and ratified by a consensus (with dissent, of course) of “the People” as a shield for democracy.[59]
The principle seems unobjectionable and does not require that in this Essay I opine on the correction resolution. My purpose, as I like to emphasize, is to consider the continuity in many contexts, and especially in the top executive office of the United States, for resistance that tends to be supported by make-weight arguments that hold sway against the forced exit of a leader by formal means. Along these lines, an intuitive argument is that Trump cannot be barred for having committed insurrection because he has not been convicted of the crime, or, some folks pronounce, he has not been convicted of a crime. That impulse to demand a crime shows up in impeachment proceedings and can be persuasive to average voters and has some (outlier) support from scholarship.[60] In the matter of the disability clause, the manifestly civil nature of a constitutional provision prescribing a new eligibility criterion of election to a federal office (here we assume the presidency is an office) is fairly straightforward. As the Colorado court explained, the state courts routinely hear and decide election law cases in civil proceedings.[61]
That leaves us to ask whether Baude and Paulsen, and to be fair Representative Jamie Raskin, have made a proposal to obey a long-standing formal rule in the Constitution, or instead to engage in legalism that can be fairly called dangerous improvisation that has no special force. Further, might we credit claims both that it is unlikely to prevail as a formal means of creating a forced exit of a political figure from contention for election and possible occupancy of the presidency, and that it will bring political and cultural disaster upon the nation merely from the effort to apply an amendment from the Second Founding—already heavily dis-honored in the breach.[62]
If the latter, it is an instance of entire incapacity. If the formal analysis of the meaning and application of the constitutional disability is correct but impractical under any scenario, the habit of anxiety prevails over constitutional authority and, if someone convicted of a felony against the United States (attempted coup) can serve as President, anxiety even defeats self-help. It even could, if possible, cancel public discussion of a constitutional provision directed at a protection of democratic process from an anti-democratic threat. The only available “self-help” is an electoral rescue generally viewed as uncertain.[63] Constitutional Dread becomes the last word. Indeed, dread becomes an unwritten second constitutional convention bringing into being paralysis of action ratified by a silence that fear and dread command, thereby blocking formal written commands proposed and ratified through open processes of deliberation and persuasion. Is the effort to apply the formal constitutional rule to facts that it seems to fit, in a concession even by many opposing its use, in a felicitous phrase describing President-elect Lincoln’s long train trip to assume office in the teeth of threats and other hardship, “an act of defiance to those who would hold democracy hostage to the threat of violence?”[64]
This Postscript is about how to think about the essence of what the proposal is within the analytic framework of my previous Article. It is not an effort to deeply explain and analyze the legal claims and arguments and counter arguments. Rather, some aspects of those claims and counterclaims call for description and critique to assess how they illustrate and arguably sharpen and confirm features of the analysis laid out above and in Leaders. In an admittedly long Postscript addressing unfolding events, a full consideration of all the discussion in an Article of 126 pages is not appropriate. Rather, focus on the popular response to the idea is a fit for the analytic method assessing “anxiety” about formal process and resort to improvisation in connection with How Leaders Come and Go. Where popular arguments are manifestly weak but touch on and come within shouting distance of a legal claim, some legal analysis is in order. I will try to be brief in such critique of popularized quasi-legal arguments. Throughout, it is good to bear in mind that in making a renewed assessment of dread, panic, and runaway fear, I do not intend to critique legal arguments about the meaning of the disqualifying Amendment. Rather, I wish to respond to arguments that, by hypothesis, accept the meaning as disqualifying the former President from occupying any office while at the same time arguing not to apply it. In assessing the matter, I on occasion will discuss some aspect of the former President’s conduct that appears to support concern about a total refusal to apply the Amendment to such conduct. Some of the conduct in question is undisputed as fact and does not require a legal characterization.
Within the framework, it is worthwhile to give a brief indication of the arguments made by Baude and Paulsen about the nineteenth century Supreme Court case of Griffin,[65] because they deeply echo points made above about the anxiety—even dread—of fully implementing formal constitutional rules that remove or bar high officials (and some low) from office. In Griffin, the Supreme Court Chief Justice expressed open dread of enforcing a formal provision and talked about chaos.[66] Parts of the response by Baude and Paulsen appear below, as well as analysis by the Colorado Supreme Court concerning Dread.
D. Outsiders’ Arguments - Essayists Nichols and Frum respond to a conservative judge and liberal scholar
What then of arguments by a conservative, originalist respected former federal Judge Michael Luttig, that bluntly say the meaning of the Amendment is clear, and the facts are as well? What of his and Tribe’s strong claim that the Amendment is still applicable and by its clear terms Donald Trump is ineligible to serve as President and hence should not be included on any ballots sponsored by state process for nomination or election to the presidency? Is Benson alone in arguing for the wisdom of improvisational rejection of the formal constitutional rule, at least for one role that might apply it?[67] Do any public voices go so far as to argue that the constitutional meaning is clear but must not be made effective?
There is such a frank appeal to rejection of the applicable formal rule, and it was published by the forum that published J. Michael Luttig and Laurence H. Tribe, The Constitution Prohibits Trump from Ever Being President Again: The only question is whether American citizens today can uphold that commitment. Within a couple of weeks of the publication of the Luttig/Tribe explication of the constitutional prohibition on Trump’s ever being President again, Tom Nichols appeared in the Atlantic explaining the Luttig/Tribe reasoning and stating: “I am convinced by this reasoning. Case closed. Take Trump’s name off the ballots.”[68]
Then Nichols pivots. He turns for aid to another Atlantic publication, this one by his friend David Frum, author of a prompt response debunking Luttig/Tribe as a “cheat code” promulgated by “eminent jurists” who, in his opening, he tells us are promising that the Fourteenth Amendment will “save us from Donald Trump.”[69] Before he concedes the power of their argument only to reject it as “fantasy,” he calls their project “misguided and dangerous.” He then brings forth the argument made against formal rules, like impeachment, against a leader’s hold on office, that raise anxiety in those who must give them effect: “Opponents of Trump must dig deep and beat him at the polls one more time. There is no cheat code to win this game.”[70]
Notably, the last sentence treats the constitutional prohibition of the service in office of an oath-breaking insurrectionist as “a cheat code” and the process of achieving constitutional protection from an insurrectionist as a “game.” We thus see the thesis in my previous Article engaged in full by Nichols. The constitutional excavation undertaken by “eminent jurists” brings to the fore dread of constitutional formality, suddenly matched, with great emotional intensity, at the front end—disqualification from attaining office—to longstanding fear of disqualification at the back end—impeachment and removal from office. The same distaste for removing an oath-breaker from office returns with perhaps greater force in a fierce distaste for preventing an oath-breaker from further eligibility for election to office and resulting occupancy of office. The work of Baude and Paulsen supplies the exclamation point for the themes explored heretofore in Leaders.
The theme is fear. Is it right? If so, does that mean formal rules are generally malleable when the consequences seem worrisome? Could that be a general precept about constitutional interpretation?[71] Is the fear of formal process removing or rendering a President, after service, a diagnosis demanding constitutional surgery that removes certain provisions from the Constitution after sufficient unease and outcry bring to consensus their status as “fantasy” and as likely productive of “rage and chaos?”[72]
Does the fear argument contain a level of comfort with the possible result that the election would bring back to office what Frum in passing refers to as “an insurrectionist president?” Notably, Frum also lists as imaginary horribles an outcome in which either courts or public officials, in fraught procedural postures, reach decisions that destroy their legitimacy with sizeable portions of the citizenry. Other imaginary horribles Frum brings forth, perhaps not so imaginary, are the responses of “Republicans hunting for Democrats to disqualify.”[73]
In effect, Frum argues that no public authority—not state officials, not the Supreme Court—commands the needed authority to rule on the matter, whatever the decision. Sadly, recent concern has already arisen about the authority of the current Court to command obedience.[74] He also argues that the political culture, on which we must depend for rescue in an election, is so degraded that constitutional law “is an unfeasible, unhelpful fantasy.” Unfortunately, however, litigation is occurring, and decisions will follow.[75] Is not Frum basically arguing that only plebiscite, even as he acknowledges the challenges created by the electoral college to capture the people’s voice, can be legitimate? He does not use the term, but he ends with a strong claim against law—in his terms, legal process. “Legal process can prosecute and punish crimes. It cannot save a nation from itself. That duty falls instead on each of us.”[76]
Frum thus makes a straightforward claim for the cancellation of formal constitutional legal process—the command of the Constitution, which does not fully specify but logically requires an official process effectuating the command. Can this be correct? What does duty mean for the entire voting population? Who is “us?” What might “we” say of calling the deployment of a constitutional provision on its plain terms to disqualify “an insurrectionist president” from office “an unfeasibly, unhelpful fantasy?” What should “we” make of Frum’s treatment of Republican primary voters as not seeming “to be in a cooperative mood,” to “spare the country the ordeal of renominating an insurrectionist president?”[77] Is the implementation of a formal constitutional rule by officials charged with a constitutional oath “cheating,” but the unwillingness of primary voters to spare the country “the ordeal” of renominating an insurrectionist President fair play? Is this playing of the “fairness card” not the loss of constitutional nerve? If so, what are the implications for constitutional government?
Frum’s piece is well argued, but as masterly rhetoric, not as legal logic or even constitutional theory, or jurisprudence. What of common sense for a republic, if we can keep it? Indeed, his arguments suggest an ending point for legal process, legal reasoning, and even constitutional government.[78] He makes the bluntest possible appeal to fear of formal constitutional rules. Perhaps he is right. If he is, have we as a nation finally bowed—formally—to the rule of improvisation (with no path for its genius at all in the case) and evasion, with hopes for delay and luck as the ultimate answer to faithless leaders? BULLETIN: As of the date of his latest pronouncement, Frum is wavering. In a new piece on December 29, 2023, also in The Atlantic, Frum admits as to the moment of high constitutional drama: “We all have our own opinions. (Mine was originally negative,[79] but I am becoming disqualification-curious.)”[80] Any Frum followers on the Supreme Court? Worried but then curious?
E. Getting Real - David French Combines Law and Sanity
David French is a conservative political commentator with a religious background that has led him to an involvement in litigation that seeks to advance ideas about the religious liberty, generally on behalf of Christian groups. His affiliations have been with Christian institutions, such as his alma mater Lipscomb University, and specifically Christian organizations that litigate for Christian issues framed as religious liberty. As a writer for the New York Times, he provided a biography explaining his background as a conservative Christian as well as his commitments to reasoned argument that avoids mere polemics. He explains both that he is a religious conservative—an evangelical—who is grounded in religious commitments that he maintains and his equally significant devotion to the tolerance and civility of a secular legal order. He holds a law degree from Harvard Law School, which one might suggest has guided his efforts to reconcile his own religious commitments with a strong concern to advocate for and translate the rule of law to the general reader.
I’m an evangelical conservative who believes strongly in a classical liberal, pluralistic vision of American democracy, in which people with deep religious, cultural, and moral differences can live and work together and enjoy equal legal protection and shared cultural tolerance. In both my personal and professional life I strive to live up to the high ideals of Micah 6:8 — to act justly, to love kindness, and to walk humbly before God.
I live in Tennessee.[81]
French has contributed significant essays that merge his commitments and skills, and moral seriousness, to explain in clear words why arguments against following the (seemingly) clear language of Amendment Fourteen, Section Three are deeply mistaken. Using his training in legal argument, he goes through “the text and history” of the Amendment to assert that the “plain language of the Amendment should disqualify Trump.” Once he has drawn on his lawyerly skills, he moves to the widespread commentary typified by Nichols and Frum the first time he opined to provide a degree of common sense about the dread of “consequences” were the Amendment to be honored in the practice and not merely of its formal but moribund or deceased presence in a constitution committed to the protection of democracy. By a lawyerly exegesis of framer intent supported by the agreement of the body ratifying the Amendment (“the People”), French confirms the determination when the Amendment was enacted, on the part of the Congress and the People, to protect the renewed American democratic experiment from individuals who were disloyal to the Constitution, shows by their own disloyal conduct. They would be identified by a simple test: had they “previously taken an oath of office . . . to support the Constitution of the United States” and “have engaged in insurrection or rebellion against” the Constitution. Moreover, if I may add simple logic, the expectation was that without the protection of the Amendment, the electoral process did not provide the needed protection for American democracy. The clear thesis is that, in extreme circumstances, voters can be wrong.
Next, French works on the problem to which I have given the label “Constitutional Dread.” In essay called Disqualify Trump (or Else), French begins, as my whole body of work fundamentally addresses, by noting that “there’s been an enormous amount of commentary noting that the decision [of the Colorado Supreme Court] is potentially dangerous and destabilizing [and] . . . could lead to further alienation, more anger and potentially even violence.”[82]
French concedes, as one must, that applying the Amendment to send Trump to the locker room for good “would send shock waves through the American body politic.” Having conceded the obvious, he quickly moves to what he may have thought still more obvious. “Why, [he asks,] would anyone believe that it’s inherently less destabilizing if Trump runs?”[83] Here let me insert my own voice. The nation has endured shock waves since the first electrical moment when it became clear that, for the first time in American history, a President was refusing to agree to the peaceful transfer of power to the winner of the presidential election.[84] Trump’s machinations, putting aside the eruption of January 6th that evidence strongly suggests he stage managed and viewed with pleasure, Judge Luttig has explained that the key violation of the Constitution concerned the vesting clause of the Constitution. Others note that failing to “take care” during the attack on the Capitol was a version of “giving aid and comfort” to enemies of the Constitution. Was telling the rioters after they stood down that they were “very special” people and “we love you” aid and comfort? What of suggestions that those imprisoned are hostages as well hints of pardons to come? What might the framers of the Amendment say?
French then moves to two different scripts if Trump manages to remain on ballots in a third run for the presidency. Script one; he loses. What do we get? “[H]e’ll challenge the results, conspire to overturn the election and incite political violence.” French states in a second piece, more vividly, in describing Trump’s behavior about the 2020 election: “He sent a single message, loudly and clearly, to his opponents. He will not admit defeat. Victory is the only election outcome he recognizes.”[85]
In his pleas for sanity, French confirms the wisdom of the framers of the Amendment. They had, he tells us, “fresh experiences with the potential popularity of violent demagogues and knew the bloody consequences of giving them access to power.” Providing a tutorial on legal sanity, French combines a history lesson with common sense and a moral explanation of the stakes involved in maintaining courage and the very determination that the Amendment sought to instill into a constitutional order that had learned that democracy was at risk without a new discipline on the raw power of effective demagoguery. Further, French reminds the reader, and the American keepers of a republic—if we can keep it—of the original national sin of race-based economic and political power, reinforced by engrained habits of prejudice. Here French exposes, effectively, the emptiness of such slogans as, “Let the voters decide,” or in Frum’s first reaction, calling the Amendment, if deployed against a real live candidate, a “cheat code to win this game.”[86] One recoils, perhaps, at seeing the issue presented by an actual use of an amendment inserted after the Civil War to protect democracy, as simply a tactic in a “game.” Yet I would concede that such rhetoric handsomely supports my thesis set out in How Leaders Come and Go about the deep resistance to availing a nation or even organization of formal protections that are designed as credible, embedded, and authorized means to reinforce constitutional governance, with a nod of some sort to human decency.
Let me quickly lay out some details of the French-supplied clarity about law, history, moral commitment, courage, and common sense. As I have laid out in Leaders and in this essay, those are often, perhaps typically, in short supply.
The law that French explains is relatively basic. The plain language strongly suggests the Amendment applies to the presidency and covers the conduct in office of Donald Trump. Since I am not doing a legal analysis as my primary purpose here, I will rest on the descriptions in the preceding paragraphs. Next, French uses history for two purposes. One is legal in nature, in the that it concerns what he calls the original wisdom of the authors of Section Three. “They had fresh experience with the potential popularity of popular demagogues and knew the bloody consequences of giving them access to power.”[87] French does not do a deep dive into the debates that created the text of the Amendment, but he uses history in a broad sense to argue for the firm conviction of the congressional framers of the Amendment and to explain in vivid terms the source of the conviction. The other use French makes of history is to explain the deadly and morally odious consequences of a failure by the Reconstruction Era Congress to “maintain the courage of its convictions,” as enacted into constitutional law. French tells us, “Four short years after the amendment was ratified, Congress buckled.” Specifically, he cites the Amnesty Act of 1872,[88] which allowed “former Confederates to run for public office” and led to consequences he characterizes by quoting Professor Gerard N. Magliocca as a “harbinger of Reconstruction’s doom.”
Before I provide more on French’s use of history to explain odious consequences of a loss of courage and conviction, let me quickly address a probable rejoinder to the claim Congress was wiser four years after it acted on its knowledge, from direct experience, of the dangers Hamilton had feared in 1789, and therefore, in 1868, wrote the protection of Section Three into law. In effect, those prophesying doom if the nation bows in 2024 to the command of those framers and ratifiers will argue it took only four years for the authors of the command to recognize their error and relieve their era’s demagogues of the disability. My rejoinder is, “You always say that.”
“You,” meaning those who suffer Constitutional Dread, always find ways (using evasion and delay) around applying what, in the cool moment of designing for a constitutional order, constitutional enactors, collectively “the People,” find needful and critical to the viability of the overall plan for democracy (in Franklin’s words, a republic), underpinned by a commitment to the rule of law. The key in the Reconstruction Era was the failure of Congress’s conviction in four short years about the intolerable danger of the former Confederates. There was a wish to return to the normal world of American politics, in which regions made nice and evaded deep differences that were thought explosive and too tough to handle.[89] In Leaders I discuss the long evasion of the politically fraught sectional division. It was an evasion that never had an answer through voting on sectional divisions blurred by politicians as a means of gaining and keep a modus vivendi. The result was a catastrophic war that followed a long siege endured by the African minority in a nation that was “half slave and half free.”[90]
Evasion worked until it failed. Evasion and wishful thinking a second time around sought a restoration of a lost modus vivendi with a region not reconciled to constitutional supremacy in matters of race. I suggest that the wish was in vain, and much closer to incantation than to the counsel of experience above.
In one part of the essay, French calls the-Amnesty-Awarding-Congress naïve. The term is charitable. The etymology of the word naïve is complicated. It can be a pose. Affecting not to recognize a harsh fact is an escape from taking actions commensurate with this threat it presents. Not to bother candidate Haley overly much, her statements about race in the United States has had at least some of that quality.[91] If there is no race problem, we can dismiss ideas to solve it.
My term about leader problems, that is, improvisation, does not appear to offer a solution to distaste for Section Three as a constitutional command. My thesis has been about the observable propensity to avoid a formal rule but still to achieve the end of leader removal with no detectable official authorship, by the Constitution itself and, most dreadfully, by those obliged to implement its formal guards: impeachment and, in 2024, disqualification. Here, the improvisation sought is an explicit willingness to simply ignore the rule. “Let the voters decide,” is not improvisation to expel a bad leader. It is an evasion that does not point to an improvised force exit. It contemplates as an acceptable outcome the hypothetically traitorous leader’s return to office. Here, the concession is, for the most extreme statements, no plan for ouster. It is a hope lacking substance. Note again, that when I make the argument in these terms, I am referring to voices that agree that the Amendment’s meaning is clear and disqualifying but that it must not be applied. Does Haley mean that? Or does she claim that voters have the capacity to judge whether they should be voting for an accused insurrectionist? Does Haley Mean a national election, and hence the electoral college, constitutes a jury? If she imagines the voters as Congress, must an insurrectionist obtain a supermajority from the voters assembled as a Congress in voting booths across the land? In my thesis about improvisation, the tactic of improvisation is to achieve the solution that the formal process expects to take place—leader exit. Here, the improvisation is merely to avoid the formal process by making up, inventing, or arranging offhand excuses and rationalizations for—doing nothing, i.e., evasion with no end in sight.
Note that the prosecutions of Trump (ninety-one felony charges filed in three cases), unlike those of governors or, in a key example in Leaders, Vice-President Agnew, are not to remove him from an office. They are, in their way, ordinary prosecutions for alleged criminal conduct. Sadly, in this moment of Constitutional Dread, improvisation consists of weak arguments for the protection of a leader for whom a formal process could be fatal to further ambition. Such ambition in the figure of a demagogue, as the 1789 Founding generation used the term, was a danger well understood from their study of the ancient Greeks and Romans.
Let us now take a quick look at French’s blending of history, moral commitment, courage, and common sense. I have already touched on his historical account of the bad consequence of avoiding a perceived bad consequence. Let me briefly describe French’s account of the long-term very bad consequences of the 1872 wish to escape the “fatigue” of the overhanging regional hostility from the Civil War—a result, as noted above, of evasion of the politics between North and South as the path to Civil War became the clearest available end to the conflict for which evasion was no answer.
What David French makes frightfully clear is that “fear and fatigue”[92] are the second life of wishful thinking about ways out of enforcing a constitutional protection meant for the very problem of fear and fatigue. French explains that both the then President, General Grant, and the Congressional leaders were concerned that “Section 3 could inflame conflict ‘by giving white Southerners an excuse to aid the Ku Klux Klan.’” To cut straight to how a temporary expedient that seems safer than applying the constitutional protections then recently enacted works in practice, French explains what we all should know. Our shared but wishfully ignored history is that, “when Congress gave the keys to the state kingdoms back to Confederates, they created the closest thing they could to a renewed version of the Confederacy.” The catastrophe continued to play out for at least 100 years, and depending on how one counts time in a catastrophe for the victims of state-backed violence and suppression of their fair chance in life, more than 100 years. Temporary relief from fear worked for some but not for those left behind by a wish that was comforting at the time to those who indulged it.
French’s use of history is a critical reminder that the stakes at the time of the ill-fated 1872 invitation into governing power of the former Confederates is similarly high in today’s indulgence in dreams of evasion. The invasion of the Capitol on January 6, 2021, carried into the halls of the site of national governing authority the battle flag of the Confederacy and, with it, a considerable quantity of racial insults directed at persons charged with defending the building as well as the American government. David French brings home in a compact review of law, history, and the repetitions that haunt the problem we collectively endure of pleas that those with authority to apply the disqualification for insurrection after oath somehow find an “off-ramp” from a responsibility for which the 1872 off-ramp gave the nation a legacy in which “generations of Americans lived and died in a virtual apartheid substate.”
That my thesis about Constitutional Dread, and the overall propensity across time and context (don’t forget Nixon!), to avoid using formal rules to expel a leader, is in vivid real time enactment might give me some small satisfaction as a toiling academic. But the current enactment of Dread is much scarier than anything those searching for an off-ramp might say. The current enactment directs us away from such governing genius as formality or improvisation may provide to rid a nation of a leader (arguably!) demonstrated to be incompetent or dangerous or vile to a plan for permanent surrender to the fates of an electoral process under attack by the very leader to whom a formal disqualification may well apply. If the disqualification does not apply to the alleged insurrectionist/coup leader, and in good faith, the highest court determines it does not, so be it. But to argue that it does apply but it must not be applied is a form of surrender from which recovery may well be long and hard.
IV. Returning to Section 3 – Baude, Paulson, and Maggliocca
This postscript is a grim punctuation of the analysis set forth in Leaders and is not an appropriate forum for extensive analysis of the Amendment, Baude and Paulsen’s Article, or originalism as constitutional analysis. Nonetheless, it is worth briefly noting the nineteenth century Supreme Court precedent Baude and Paulsen argue was incorrectly decided, and to note and emphasize brief aspects of these pesky professors’ overall “political” claim.
Their claim is based heavily on originalism—an approach to constitutional interpretation that has arisen from political campaigns emanating from the Republican Party and the Federalist Society. In effect, their formalist argument has gained its jurisprudential force as a result of politics.[93] The originalist argument, as laid out above, is that by the clear terms of the Amendment and by the historical context, the simple, unavoidable meaning is that Trump is ineligible to serve a term as President. Their claim is thus deeply formal.
Further, the nature of the disqualification by constitutional mandate is political only conceptually. It is a charge that addresses fundamental political rules of eligibility to hold a constitutionally created public office. Presumably the target’s only constitutionally valid relief from their claim is deeply formal: either prevail in litigation that would ensue on the grounds that he or she did not engage in the proscribed behavior or press the claim that the President is not an officer within the meaning of Section. Prevailing on those points is formal but the reasoning arguably thin–even tortured. The real “off-ramp” that is political and formally authorized in the Fourteenth Amendment but not an argument for avoiding consequences out Constitutional Dread is the suggestion that Congress must act, because it is a political body. But the argument is flawed if it means only Congress can disqualify Trump. As explained lucidly by Professor Gerard N. Magliocca, that political exit door is the relief allowed by Section Three, i.e., to attain removal of the disability by a vote of two-thirds of each House.[94] In the nature of the formal argument, Trump (hypothetically) is already barred from office by the manifest meaning of the constitutional provision. But the only process specified in the text of the Amendment that is akin to the impeachment clause is a mirror image of the supermajority required for conviction and removal from office. Instead, for an insurrectionist barred by Section Three to recover eligibility, both houses must relieve the target of the disability. Thus, the call upon Congress is not without all merit, but it does not work as a block against the application of the Amendment by others who have a claim to a duty to enforce it. Congress has no role to block the path for Trump, but only one to lift any block imposed by the text of the Constitution.
Otherwise, there is no process manifestly associated with the provision. Further, as Professor Magliocca explains, the award to Congress of authority, not to impose disability, but rather of permission to engage in the deliberative act of removing the disability, “implicitly bars the court from giving an insurrectionist an exemption for pragmatic reasons.”[95] Note also the illogic of reading into Section Three an assignment to Congress of both the function of imposing, presumably by majority vote, and of removing it only by supermajority. To suggest that silence by Congress is equivalent to saying no one with formally authorized political authority has imposed the disability is to repeal the supermajority required by Congress to remove the disability. Otherwise stated, such a reading is an absurdist path out of Constitutional Dread.
That brings us to the question explored in this Postscript: what is it? Is the rediscovery of the formal disabling rule in the context of the issue of Trump cheeky professional improvisation or are the responses—just ignore it because it creates mass rage and chaos—improvisation? Can pressing forward with a neglected provision of the Constitution be considered improvisation, even cheating? Is understanding and paying attention to a formal provision of the Constitution improvisation? Is improvising formality by reading the Constitution a bad idea? Did the Framers of the Amendment entrust “improvisational formality” to subsequent generations meaning the lack of well-marked roadmap to say to us, today, “We believe in you. We trust our democracy to all of you”? Did they sense that formality alone is both too important and difficult to risk assigning a unitary allocation to one set of hopefully faithful guardians and conservators? Does the mass alarm and argumentation bring about what the framers wanted future generations to experience—to think and talk and scream and face their fears? Might they have agnostically created a distributed process, thus licensing a democratic symphony of dutiful citizens and oath-bound federal and state officials, acting separately but gathering in chorus to force the process that would lead to a democratic outcome brought to fruition by good fortune and good faith within the body of the whole democracy? The chorus from administrative bodies, as well as from historians and former officials, has been gathering, and is impressive. The lack of a map to a process plausibly suggests an intent to give the keys of the constitutional guardhouse to the future genius of a citizenry committed to the mission implicitly assigning to citizens something more than in elections.
This is as good a place as any to insert the role federalism plays in orchestrating such a chorus of citizens located in offices bound to constitutional oaths of fealty to the Constitution. The Constitution assigns the administration of elections to the states.[96] The “talking heads” have fairly consistent cried out that this must not be. No, the Supreme Court must impose a national answer because the chaos of some states including Trump on their ballot and others not. Yet there is a strong argument that the Constitution, in the combination of the federalist elections clause in Article I and the self-executing disqualifying clause of 14,3, precisely calls for this very federalist electoral chorus. It may be nerve-racking, but the Supreme Court originalists favor application of the text, full stop, no matter handwringing about what ensues in the world. Here, what ensues might well be a chorus perhaps envisioned by the 1868 framers. Now let me say what is wrong with that. The problem is that the purpose of 14,3 is to assert national power over the threat posed by insurrectionists and states that might still harbor, support, and empower them. This is my argument on the fly and not one that I shall develop here in depth. It is true that Colorado has some basis in the structure of the constitutional design for elections to control their ballot and exclude an insurrectionist, but the problem of any suggestion that states have carte blanche to include insurrectionists on their ballot is that it is contrary to the whole gravamen, purpose, and constitutional hope of the amendment. The animating idea is to keep insurrectionist sentiment in states that harbor it from placing traitorous oath-breakers in power. Professor Amar’s “fifty-state solution is a faint-hearted version of “Let the People decide.” There is more I might say here, but I do try to be brief. Let me add, briefly, that the chorus the framers may have imagined is of a people acting collectively with a degree of fidelity and courage, and that such a chorus would prevail over bad faith in the long run—perhaps the very long run. One chorus they did not have in mind was one joined by unrepentant insurrectionists.
In answering the query, “What kind of government have you given us,” Franklin’s response, “A republic if you can keep it,” suggests just such a distribution of empowerment that exceeds an expectation of passive participation by all but those in Congress or the Supreme Court.[97] To the extent, Colorado might well be properly part of the chorus, but one that would establish for the nation a courageous understanding of the moment of Constitutional Dread we now face. The fear that failure to confine an active guardian role to one body given a formal role, spelled out as an unmistakable command buttressed by comforting locutions about power and authority, suggests a lack of faith in the wide distribution of good faith in politics. Such claims are at large in a fragmented information environment in this moment of national drama, with a commentary on the program “The View” warning of a weaponization of the provision by Trump in power, who would, in effect, control ballot access and be enabled by “Secretaries of State, or . . . judges that he appointed who are loyal to him.”[98] Were the framers of the Second Constitution naively hopeful about the capacity of the nation at large to keep their democracy? Did they watch The View? Were they overly confident that loyalists would retain the power to use the amendment as needed and not have it turned against them?
Baude and Paulsen make some acknowledgment of practicalities in connection with a process to disqualify Trump but they fundamentally do not back down from their claim that "state election officials" are bound by Section Three to exclude from a ballot for election or reelection a person who had engaged in an insurrectionary action after taking the constitutional oath of office while President. Their concession to practicality or pragmatism is openness concerning the pathway to engage the question. Simple logic tells them and us that an election official must either deny such a person—Trump, in this election cycle—a position on a primary or general election ballot or include him. Either suffices. The concession to pragmatism merely acknowledges that in either scenario, constitutional litigation around the clear meaning of an extant formal rule of disability—of Donald Trump—will go forward.[99]
In conceiving the pragmatic aspect of possible procedural variations, however, Baude and Paulsen do not concede that there is a choice in terms of obedience to the formal provisions of Amendment Fourteen, Section Three. They never back away from the claim that the meaning is plain, that it is self-executing in the sense that there need be no congressional finding or criminal conviction. In their concession to the practical path likely necessitated by litigation, they acknowledge the reality is that one cannot count on all officials to follow the plain meaning of the Constitution. In conceding the imperfection of the human agents required to acknowledge the effect on Trump’s candidacy of the self-executing disqualification—comparable to the minimum age requirement—they do no more than I have done in my Article, which is to say that officials charged with a duty of formal action care, and often will, seek and rest upon the arguments exempting them from fully implementing the formal rule.[100] Also, even as Baude and Paulsen argue that Griffin, the precedent from the nineteenth century disallowing a literal application of the exclusion, is poorly reasoned[101] and hence bad precedent, as formalists they concede that the Supreme Court has the final say.[102] Despite their requirement as law professors to speak of the Court respectfully, their entire argument means that the Court would be wrong if it rules that Trump is eligible to the presidency.
They specifically argue that the first crack taken by the Court at construing the clause is simply wrong. For a full explication of their rejection of its merits, see Section II Part C of their article.[103] In their reasoning about flaws in the opinion, two of their many points are salient. First, Chief Justice Chase relied heavily on “the argument from inconvenience” as a means, not of resolving a close question in favor of a less “calamitous” result, but as an argument to override a plain meaning.[104] Second, Chase relied on several “make-weight” arguments,[105] a maneuver indicative of poor reasoning driven, perhaps, by an attachment to a preferred result. One might conclude that the Court’s unwillingness to affirm the meaning of the Amendment arose from deep anxiety about the formal disqualification of numerous politically powerful, ex-Confederate and still dangerously unvanquished political leaders in a nation still torn by bloodshed and attempting to move toward reconciliation between Northern and Southern whites.[106] That is to say, the Court expressed the same anxiety about meeting a duty to apply formal rules disqualifying powerful political leaders that other political officials also expressed then, and do now. One might even suggest that a fear of violence by the same oath breakers to which the Amendment applied drove the result. If so, do we have a similar moment at hand?[107] The Court and the Congress reflect a general cultural indisposition in favor of improvisation—as a hope of later unspecified rescue or preference for an immediate tactic such as forced resignation or jawboning to prevent a disqualified candidate from persisting in a campaign. The hope is to blur the official record in favor of an outcome without a clear author. Here, the prospects of later rescue depend mostly on the vagaries of opinion in “swing states” that are unpredictable and not likely to mirror the national vote percentage.
V. Are Invocations of Duty Any Help?
The presence of duty rhetoric in arguments about formal processes for forced leader exits calls for a brief discussion. As noted, invocations of duty can be little more than bromides that assume the answer to a substantive question and thus often rank as a logical fallacy—circular arguments or, more technically, begging the question (by answering it without making an argument).[108] Can duty as a guide to a choice, a choice said to be mandated by the idea of obligation impounded in the invocation of duty, be a real claim on a right answer? Let us think about simple ways duty can provide an answer. The first obvious one is that some jobs have functions that can be specified as the main reason for the job to be filled by anyone. A professor has a duty to meet classes, and to teach a body of material described in the course announcement. Any state-level Secretary of State has a duty to oversee the mechanical processes of elections in the state for which he or she fills the office responsible for elections. That statement means that core functions necessary for running elections—providing ballots by printing them or making them available in other authorized fashions, hiring and supervising—must be discharged. The simple meaning of a job, almost any job, is to do relatively mechanical tasks. For some jobs, unions or other protections exist to specify the tasks sufficiently to provide protection from arbitrary discipline for not doing it, but doing it is basic.
After the basics, though, what can duty tell us? Is an abstract invocation of a Secretary of State’s duty to remove a candidate’s name from a ballot on the basis of the candidate’s ineligibility to hold an office clear and obligatory on that official? Is it a duty? The answer is that many issues are impounded in that question. One step, taken by Secretary Benson, is to say state law does not assign “the function” to her. Simply put, she says, it is not my job. A popular version of that argument is, “It is above my pay grade.” As citizens, how might we phrase that? Does the claim that state law exonerates Benson of a duty to the constitutional provision work? I must acknowledge that is contested. When, as a public official, is one permitted to disclaim responsibility to be dutiful to a provision of the Constitution? One simple answer is when an official or a body, such as a legislature, provides a law explicitly contrary to a well-known definitive guidance from the Supreme Court about the meaning of a provision. We know that states in recent years have passed laws at odds with existing constitutional precedent. Examples include abortion and immigration.[109] In each recent instance, the state legislature calculated that a change in the membership of the Supreme Could would enable a currently unconstitutional provision to pass muster under the shift in the Court. Does that provide any insight? The enactment by the legislature of such a currently unconstitutional law involves a prediction: “‘We’ now have the votes”—on the Supreme Court. The safeguard against constitutional chaos is the ability of those affected by law contrary to governing jurisprudence to seek relief. If relief from the new law fails, the prediction looks sound.
At a minimum this practice of legislatures suggests that various roles retain the option of construing constitutional meaning, even against current definitive statements of the meaning. It is certainly possible to argue that, by comparison, a Secretary of State does have, at least the option, of making a good faith determination of a candidate’s eligibility to be placed on a ballot, the preparation of which is subject to her supervision. If she has the option, what then might we say of her duty? We could say she prefers not to take into her role to supervise elections a concern for constitutionality. We could also say that there is some wisdom in role division that helps maintain stability in administration of functions, including immigration[110] and women’s access to health care. On the other hand, we could say that the genius of our democracy is the distribution of vigilance and initiative to all of us, in all of our roles. Legislatures take initiative to enact a view of law and to advanced possible movement in the “right” direction.
What does Benson believe? As a citizen? As a public official with a law degree and good knowledge of constitutional law and interpretation? Let me note here that the courts in Michigan have avoided answering the question, one on grounds that it is a political question and the other on grounds it is premature. Yet Benson argued it is for the courts to decide. Who has the ball? Does anyone have a duty? Will we hear the Supreme Court try to avoid the question by saying it is for Congress? If there is duty to the meaning of Amendment Fourteen, Section Three, in whom does it reside?
When do we know that an invocation of duty is “real” if it either justifies an individual’s actions, or it purports to prescribe a substantive answer to one whose job is to decide (if we agree the job requires a decision)? When is it a real guide to someone’s role obligation and not just rhetoric that proves nothing and is only empty argument? Don’t forget logical fallacies! In this essay, I cannot give a definitive answer, but I can suggest ways to think about it. Bearing in mind that citizen is a role, here is an invocation from history that we can reject. In a variety of writings, John Wilkes Booth invoked his love for the South, and his duty in that connection. A letter lends credence to his having viewed the assassination of Lincoln as his duty.[111] The mere invocation of duty by an individual for an action well outside the normal role of a citizen not holding an office lacks force even with an emotional claim of solidarity with many others who share something well outside the law. The feeling of moral justification for an act of murder may work with one’s compatriots and perhaps in an ultimate accounting outside human dominion, but it lacks legal standing, and, within a generally shared sense of political morality, it lacks all standing for justification to anyone but oneself. Even then one can query what part of the invocation arises from a deep well of duty as a common force binding others or from mere self-aggrandizement and perhaps narcissism.
As to individual—an official—invoking a duty to justify and take various actions as an officer sworn to a constitutional oath, I am impressed by the repeated references in a book written by former Congressperson Liz Cheney about her actions and commitments throughout the events involving efforts by former President Trump to remain in office after the election had been legally determined was a loss for his candidacy and a win for candidate, now President, Joseph R. Biden. Often in the book she refers to duty and to her oath to the Constitution often in the book. In many of the instances in which she relied on duty as her guide, she was acting consistent with long shared understandings of the processes and roles involved in presidential elections and the consequent transfer of power from a defeated President to an incoming President.[112] Moreover, Cheney addresses a role that defines the parameters under which she exercised her duty. Congress, and hence each member, has one role assignment in the Constitution that is much like the highly specific task of a job, one with no discretion at all: “As the Constitution requires, Congress’s role in this [the ceremonial opening and counting of the electoral votes, which was to occur on January 6, 2021] is ministerial only: Congress counts the certified electoral votes.”[113] The specification of the role of Congress is beyond reasonable debate: it has no wiggle room for partisan preferences sold as duty.
Throughout her book, Cheney recounts reactions from colleagues to her adherence to constitutional duty as a betrayal, one comparing her to a girlfriend who rooted for the other side.[114] What else besides a clear text defining a ceremonial duty lacking in any discretion at all, might buttress a claim of an un-evadable duty? Some form of wide consensus backed by long practice and shared understanding has real weight. Liz Cheney organized such a statement by former high officials of several administrations as a public invocation of duty embraced and obeyed over time as an inherited undisputed core guide to an office: that of United States Secretary of Defense. Here is an excerpt of a letter released on January 3, 2021 and signed by ten former Secretaries of Defense:
As former secretaries of defense, we hold a common view of the solemn obligations of the US armed forces and the Defense Department. Each of us swore an oath to support and defend the constitution against all enemies, foreign and domestic. We did not swear it to an individual or a party.[115]
This statement can be thought a quintessential demonstration of the meaning of oath, or duty, that carries weight, a sober meaning, and an anchor to a constitution for a democracy. The signers were of different parties and views on issues that divide the parties. But the agreement was rock solid about the oath to the Constitution grounding the military in refusing any request to intervene in or interfere with “American elections and the peaceful transfer of power.”[116]
The sincerity of the invocation, the weightiness of the consensus and tradition, and the fit of the substance with the constitutional document and the historical evocation of “an unbroken record of . . . transitions [of power] since 1789, including in times of partisan strife, war, epidemics, and economic depression” is as close as proof can come to absolute in a document asserting and explaining a duty that is more than ministerial yet is not in truth discretionary. Continuity is the key factor in anchoring credible invocations of duty. It is more than a personal claim of an obligation. But those who invoke and keep such a claim to duty rely on virtues personal to the one bound by the duty. Character signals what is real in a fraught moment.
What of Liz Cheney’s own reliance, as in the title to her book, Oath and Honor? Is it merely self-serving, or something more? As an emotional matter, her quotation of her father’s words to her provide solid grounding–familial continuity bonding her to both her oath and a family conviction, dating back to her great grandfather’s Civil War service for the North.[117] Though not entire proof of substance, his words, “Defend the republic, daughter” are powerful evidence of fealty to the rule of law within a tradition and a long consensus. Her reply is also solid grounding for respect for her conduct during the crisis leading to January 6, 2020. “I will, Dad. Always.”[118] The emotional commitment, and the underlying substance of the ten Defense Secretary’s letters, provide proof of the duty to which Representative Cheney was in good faith obedient and considerable indication of character in a time of high political risk, and ultimately, even personal risk. If we credit Cheney’s having followed a duty in which she had grounded her career in good faith, and we credit the substance of the duty as demonstrated by the letter of the former Secretaries of Defense, how might we find similar reasons to credit personal claims to have acted from duty?
My claim here is that it is not simple, and that invocations of duty can be, and often are, little more than self-serving, or deeply mistaken.[119] It is well beyond the scope of this Article to fully explore that riddle: when can a claim to act from duty provide justification in a constitution made for a democracy and be accepted as having substance worth crediting and to be in good faith? When can it persuade either that an action taken was the necessary choice, and or that in a proposed choice—as posed by Amendment Fourteen, Section Three—constitutional duty overrides arguments of fear, or Constitutional Dread in search of an “off-ramp?”
Conservative scholar, H. Jefferson Powell has attempted to capture the test for judges, and hence for the justices of the Supreme Court facing decision amidst calls for them to find an elusive “off-ramp.” Speculation abounds about the motive of the Justices, much having to do with the low ebb at which the Court finds itself in public opinion.[120] In Powell’s words, personal character is critical to deciding how a good judge decides contested matters and dispenses justice. The features that matter for a good judge are virtues of insight, discrimination, judgment, integrity, and so on.[121] None of these are subject to a mechanical application, but with seriousness of purpose, they can be recognizable. I do not purport to provide a deep philosophical treatment of the defining attributes of duty, and I note that the Roman political philosopher Cicero disclaimed the ability to transfer to others the key to “become good calculators of our duties,” and left the matter to “experience and practice.”[122] He provided suggestions for assessing a performance of duty by another. “When, however, it is a matter of praising, it is deeds done with the great spirit, courageously, outstandingly, which seem for some reason to rest from us fulsome praise.”[123] The conversation Liz Cheney reports with her father (yes, Dick Cheney) on January 6, 2020, about danger she faced if she proceeded with remarks she planned to make during the ceremonial counting by the Vice President of the electoral votes reported by the states suggests a deed done with “great spirit and courage.”
While I was sitting at Ryan's desk, my dad called me.
“Are you listening to Trump?” he asked. Trump was speaking at a rally on the Ellipse, but I hadn't been listening.
“He just told the crowd they should ‘get rid of the Liz Cheneys of the world.’ he has created a serious threat to your security.”
I stepped into a cloakroom phone booth for privacy and slid the door shut. “You're in danger,” my dad said. “You need to be aware of that as you think about whether to go forward with your remarks.”
My Dad’s voice was steady – and deadly serious. I knew he was angry and worried as a father, and I knew that his heart was breaking for our country. The president of the United States was attempting to utilize an angry crowd as a weapon to threaten Congress, to prevent us from carrying out our constitutional duty.
My father knew immediately and unequivocally that Trump's speech was likely to cause violence. And now Trump had targeted me directly.
I listened to what my dad was saying, But I think we both knew what the answer had to be. There was no world in which I would let Donald Trump threaten or bully me into abandoning my duty.
“I can't stay silent out of fear, dad.”
“Okay.” he said “I understand. But please call me as soon as [your] speech is done. . . .
The next time I talk to my father, I was being rushed from the house chamber as the violent mob mobilized by Trump stormed through the capitol. [124]
VI. We Are at the Point of Formal Failure – What Now?
As we see, bare invocations of duty prove nothing. Context, substance, and character enter the picture. Assessing any given assertion of duty for persuasives or emptiness of rhetoric, either to impose a choice on another person or to justify one’s own choice, requires moral reasoning suited to the citizen’s part in a democracy guided by a set of constitutional precepts. Claims that a role precludes exercise of certain duties could be correct, or they could be a means of evading a job to enforce a formal rule that may place the person disclaiming a duty in the role at some kind of risk, personal or political. It could be correct, as was the decision by Vice-President Pence that his role as Vice-President did not permit him to do anything more than helping to count and report to Congress the certified electoral votes delivered for a ceremonial last confirmation of the 2020 election. Another example of an official predicating action on his moral and personal commitment to his oath, while under pressure from someone (then President Trump) to whom others yielded is Republican Rep. Russell “Rusty” Bowers, speaker of the Arizona House of Representatives in 2020. Bowers received a phone call from the then President pressuring him to take certain actions that had no basis in Arizona law and for which Trump could offer no predicate in evidence of electoral fraud in Arizona—or in the federalism by which states are responsible, and by implication Speaker Bowers, for administering elections.[125] Quoting himself, Bowers reported his response to Trump:
I said, “Look, you are asking me to do something that is counter to my oath, when I swore to the Constitution to uphold it. And I also swore to the Constitution and the laws of the state of Arizona, and this is totally foreign as an idea or a theory to me. You are asking me to do something against my oath and I will not break my oath,” Bowers testified.[126]
As to the Supreme Court, which—BULLETIN—has now granted certiorari to the Colorado decision barring Trump from the Republican ballot, the meaning of duty among the justices ranges widely. In a draft on Judicial Duty, I have identified the following meanings of the invocations of duty at the Supreme Court: integrity of self; self-renunciation; the Court’s institutional role; the individual oath as an obligation “to voice disagreement”; the exercise of judgment as the core task of the justice, especially to protect rights; the Marbury claim of the oath itself as authority; and an oath to God as eternally binding. Let me comment here that an oath to God can be a reason to abide by an oath to a constitution such as the American Constitution but it does not supply the content. The content is in the Constitution.[127]
Compare these examples of officials feeling bound by an oath to take an action fraught with risk to families, political careers, friendships, and personal safety with arguably cynical calculations of political convenience and practicality. Former Representative Cheney reports in her book that then Majority Leader Mitch McConnell decided, after signaling a commitment to impeachment and conviction, not to vote to convict in the second impeachment trial on the basis of calculations allowing for an “off-ramp” from duty.[128] Cheney reports that McConnell erred in such calculations because they were predicated on his belief that Trump would fade away. In other words, he saw his vote not to convict as practical and hence did a behind-the-scenes personal version of the politicians’ visit to Nixon, advising him to resign and thus avoid (for Nixon but for Congress as well) the onerous burden of proceeding with the formal constitutional task of impeachment and trial. It was “more practical” for him to resign rather than for Congress to proceed with the work of making a formal record and convicting him.[129] Here, McConnell in effect thought it practical—for his political purposes—to let Trump fade into history. But we now know that Trump did not and that again voices speak again of off-ramps from executing a formal constitutional method for leader expulsion—by way of prospective constitutional ineligibility and in the hopes of some rescue in an indefinite future.
We see, then, that impeachment and even adherence to duty under pressure is political, but in a high sense of judgment for the nation. The term “political” has a constitutionally dignified meaning as well as one in low calculation and mistaken practicality. The Constitution asks that officials in the House and Senate discharge constitutionally serious judgment about the nature of a President’s misdeeds. They are asked to apply the formal constitutional process to imprint in a historic act the deep meaning of a President’s obligations within our constitutional framework and to preserve the meaning of the formal process set out by the founders for maintaining a republican form of government. The judgment to be made may be political but it is high politics, not the low politics of personal calculations about convenience. In any light you put it, the hope that a leader whom one judges guilty of conduct deemed a constitutional violation will fade away and thereby relieve those responsible for constitutional government is not pragmatic or practical. Rather it is preference for political advantage and personal comfort over genuine stewardship of the constitutional order. The vain wish for peace and stability over the long run of national life turns out to be impractical.
I will not expand on the other invocations by Justices in Court opinions here but will note that the Marbury claim serves to anchor the Supreme Court as the primary authority on constitutional text and that textualism, as embraced by several of the current Justices, insists on absolute fealty to the text (with some originalism thrown in when the text is ambiguous). Nothing in the samples I earlier collected in Supreme Court opinions exactly captures that claim, though there may well be such locutions not in my database. Is the text of Amendment Fourteen, Section Three ambiguous? How might the claim that the oath requires a Justice to follow the text of the Constitution control, or not, the upcoming decision by the Court in this fraught controversy? Or not? Time will tell.
What might we conclude from this most recent culturally powerful rush away from the full implications of formal process designed to render top leaders vulnerable to removal and/or disqualification from an office? Mine is that formal process offers protection and precedent, but the reality of political psychology may be the final author of the working rule: the near impossibility, in the very moments of its importance, of drawing upon the constitutional authors’ intent to protect the nation from leader disaster. That is to say, the empirical reality may be that at the very moment when the meaning of a constitutional failsafe—break the glass because the Constitution orders it—is clear, its necessity is also clear to those determined to heed rules for constitutional governance, but also to those many who wish to disobey the rule. The latter sentiment with force, argues there is no unterrifying choice available from formal constitutional processes designed to protect democracy. The choice may not be available because the will to use it ends at the exact moment it is written and adopted as basic law. Will is easy to conjure when nothing is at immediate stake. Paralysis rules in the moment of crisis. And that failure of will poses as prudence.
If so, improvisation, the common fall back, has no place to go. We have seen that improvisation can achieve the one part of a result much desired by the authors of formal process—the leader exits, as with Nixon, but without the conformation of constitutional order formal process is designed to achieve. Today, neither formal process nor “practical” substitutes present themselves. Are we at a moment when nothing avails? The outcome evasion will give us may not be long in coming.
Let’s all hope for the best!
Written by Mae Kuykendall, Professor of Law, Emeritum, Michigan State University College of Law. For this piece I am particularly grateful to MSU Law Review editor Gabriel Wrobel, who quickly edited my drafts as I wrote this “real time” postscript against the self-imposed deadline of the Supreme Court oral arguments for Trump v. Anderson. Without his encouragement, support and meticulous editing, this piece would still be aborning. Any gaps or errors are my responsibility and mine alone. I am also grateful to Professor Hildur Hanna, librarian of constant patience, for her help with the deadline, particularly her positive suggestions such as “this part will work better in your next piece.” Finally, my continued gratitude to all of the scholars I’ve cited in this piece. You have enriched my own work with your depth, knowledge and differing perspectives and views. Thank you.
[1] Mae Kuykendall, How Leaders Come and Go, Mich. St. L. Rev. Forum (Nov. 27, 2023), https://www.michiganstatelawreview.org/forum20232024/howleaderscomeandgo (hereinafter Leaders).
[2] William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751.
[3] U.S. Const amend. 14, § 3.
[4] To be fair, they were not the first of contemporary scholars to create a stir about the meaning of Amendment Fourteen, Section 3, but they were the first to specifically explore the application of the prohibition to one Donald J. Trump. For earlier recent explorations, see Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87 (2021). It is also worth noting that Representative Jamie Raskin is a constitutional scholar who raised the issue of Trump’s problem with eligibility under 14, 3 during the time of the January 6th congressional hearings. FINAL REPORT, Select Committee to Investigate the January 6th Attack on the United States Capitol, H.R. Rep. No. 117–663, at 690 (2022), https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf.
[5] See generally Leaders, supra note 1 (noting the “institutional dread” that often results in the flouting of formal rules when they appear to call for removing leaders from power).
[6] James Oliphant, Yes, Trump could win the 2024 election: Here Are Four Reasons Why, Reuters (Dec. 13, 2023), https://www.reuters.com/world/us/yes-trump-can-win-2024-election-here-are-four-reasons-why-2023-12-12/.
[7] Leaders, supra note 1.
[8] Baude & Paulsen, supra note 4, at *121.
[9] Sherrilyn Ifill, Why are U.S. courts afraid of the 14th Amendment? Because it’s radical, Wash. Post (Nov. 24, 2023), https://www.washingtonpost.com/opinions/2023/11/24/us-courts-fear-14th-amendment-radical/ (explaining the basis of Section Three in concern to protect Black citizens from the persisting belief they were meant to be dominated by Whites).
[10] Id.
[11] See Leaders, supra note 1 at Part I, Section A, Subsection 1. See also Michael Stokes Paulsen, The Constitutional and Moral Imperative of Immediate Impeachment, Bulwark (Jan. 8, 2021), https://www.thebulwark.com/the-constitutional-and-moral-imperative-of-immediate-impeachment/. For a discussion of the slipperiness of duty locutions as an argument about other people’s interpretive strategies and obligations, see infra Part V.
[12] Id.
[13] U.S. Const, amend. XIV, § 3.
[14] See Leaders, supra note 1; Alexander on Impeachment: “Let the People Decide”, Senate Comm. on Health, Educ., Lab. and Pension (Feb, 5. 2020), https://www.help.senate.gov/chair/newsroom/press/alexander-on-impeachment-let-the-people-decide.
[15] Stephen Gruber-Miller, 'I will beat him fair and square,' Nikki Haley says after Colorado court disqualifies Trump, Des Moines Reg., (Dec. 19, 2023), https://www.desmoinesregister.com/story/news/elections/presidential/caucus/2023/12/19/nikki-haley-says-voters-should-decide-on-trump-after-colorado-supreme-court-blocks-him-from-ballot/71978047007/.
[16] Miranda Nazarro, Haley blasts Colorado ruling on Trump: ‘That’s not a democracy’, Hill (Dec. 20, 2023) https://thehill.com/homenews/campaign/4370587-haley-blasts-colorado-ruling-trump/.
[17] See infra Part V (recounting examples of duty as arising in courage and character).
[18] Circular argument, Britannica, https://www.britannica.com/topic/circular-argument. (“The idea of a circular argument first appeared in Aristotle’s Metaphysics (350 bce) as τὸ ἐξ ἀρχῆς αἰτεῖν (to ex arches aitein). The Greek phrase means ‘an assumption at the outset.’ Its Latin equivalent, petitio principii, used in formal applications of logic, is a direct translation of the original Greek—petitio meaning ‘assumption’ and principii meaning ‘from the beginning.’ In informal contexts, the phrase begging the question (to take for granted without providing reasoning) is often used for circular arguments. However, in colloquial English, the phrase is often used incorrectly to mean ‘raising the question.’”)
[19] For a discussion of all the ways in which the Constitution does not make “the voters” writ large the deciding input, see Nick Akerman, It’s Not Up to The Voters to Decide If Trump Can Run For President, Independent (Jan. 2, 2024), https://www.independent.co.uk/voices/trump-14-amendment-supreme-court-b2472298.html.
[20] In 2016, Candidate Clinton won 65,853,514 (48.18%) and Candidate Trump won 62,984,828 (46.09%), Federal Elections 2016: Election Results for the U.S. President, FEC (2016), https://www.fec.gov/resources/cms-content/documents/federalelections2016.pdf (giving a difference with subtraction of 2,868,686); In 2020, Candidate Biden won 81,283,501( 51.31%) votes and Candidate Trump won 74,223,975 (46.85%) votes. Federal Elections 2020: Election Results for the U.S. President, FEC, https://www.fec.gov/resources/cms-content/documents/federalelections2020.pdf (giving a difference with subtraction of 7,059,526). Notably, even in 2016, candidate Trump prevailed in the electoral college, a headline nonetheless refers to a popular vote “swamping of the candidate.” Gregory Krieg, It’s official: Clinton swamps Trump in popular vote, CNN (Dec. 22, 2016), https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html (stating that, “The Democrat outpaced President-elect Donald Trump by almost 2.9 million votes, with 65,844,954 (48.2%) to his 62,979,879 (46.1%), according to revised and certified final election results from all 50 states and the District of Columbia”).
[21] Ian Simpson, How Close Was Trump to Winning the Election?, Electoral Reform Soc’y (Jan. 5, 2021), https://www.electoral-reform.org.uk/how-close-was-trump-to-winning-the-election/. Biden’s margin of victory over Trump in the nationwide popular vote was 4.4% (51.3% vs 46.9%). However, his margin of victory in the ‘tipping point state’, Wisconsin, the state that put Biden across the line in the Electoral College race, was a much narrower 0.6% (49.4% vs 48.8%). Biden did manage to increase his Electoral College victory by winning a further two states by narrower margins, Arizona by 0.3% (49.4% vs 49.1%) and Georgia by 0.2% (49.5% vs 49.3%).
[22] Maureen Groppe, Donald Trump can stay on 2024 Illinois ballot despite push to disqualify him, state officials rule, US News & World Rep. (Jan. 30, 2024), https://www.usnews.com/news/politics/articles/2024-01-30/illinois-election-board-to-consider-whether-to-boot-trump-from-ballot-over-insurrection-amendment (Colorado and Main have disqualified Trump, but California, Minnesota, Michigan, and ultimately Illinois, opted not to disqualify). In a second article also published on Jan. 30, 2024 by US News & World Rep. on the same day (Trump Stays on Illinois' Ballot as the Election Board Says It Lacks Power to Remove Him Over Jan. 6), the Illinois decision was described in this way: “The Illinois board members ducked the issue by concluding that, under state law, all they can do is assess whether the basic paperwork candidates fill out is true. The only way to remove Trump would be by concluding he made a false statement when he swore under oath in that paperwork that he was eligible for the office he sought.”
[23] Congressmen Paul Gosar and Debbie Lesko (Arizona) both won their 2020 state elections but voted in support of the objection to the Arizona electoral college vote. 167 Cong. Rec. H93 (daily ed. Jan. 6, 2021). Congressmen John Joyce, Fred Keller, Mike Kelly, Daniel Meuser, Scott Perry, Guy Reschenthaler, Lloyd Smucker, and Glenn Thompson (Pennsylvania) all won their 2020 state elections, and they, too, voted in support of the objection to the Pennsylvania electoral college vote. 167 Cong. Rec. H112 (daily ed. Jan. 6, 2021). Only David Schweikert, who also won his 2020 Arizona state election, voted against the objection to the Arizona electoral college vote being submitted. 167 Cong. Rec. H93.
[24] Marbury v. Madison, 5 U.S. 137 (1808).
[25] William M. Wiecek, Liberty Under Law: The Supreme Court in American Life 39 (1988).
[26] See infra Part V, (discussing how to assess a claim to duty as a candidate in support of a non-action or non-action).
[27] These grave suggestions and related concerns propose that the justices either manipulate the text of the Amendment to find procedures not named in it, such as a requirement that Congress pass a statute setting out a procedure or that the text, which includes the terms “office” and “officer” in the operative language, is amenable to interpretation not to include the President. Nick Robertson, Ex-federal judge says Supreme Court has no ‘legitimate off-ramps’ to avoid Trump decision, Hill (Feb. 8, 2024), https://thehill.com/regulation/court-battles/4455753-judge-supreme-court-trump-insurrection/. There is a wedding of the “leave it to Congress” idea with the Supreme Court created “political question” doctrine. For a review of the doctrine, see The Political Question Doctrine: An Introduction, Cong. Rsch. Serv. (June 14, 2022) https://crsreports.congress.gov/product/pdf/LSB/LSB10756 (“The term political question is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice Marshall’s landmark opinion in Marbury v. Madison, is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time.”).
[28] See Luttig Tweet, infra note 58.
[29] Justice Gorsuch has often held forth on the importance of judges’ obeying the people. He always begins his recitation as to the authority of the people with the Founders as the first step for a judge who honors “the People.” See, e.g., Ariane de Vogue, ‘Do you really want me to rule the country?’: Neil Gorsuch on the Supreme Court’s right turn, CNN (Sept. 10, 2019), https://www.cnn.com/2019/09/10/politics/neil-gorsuch-precedent-north-korea-washington-nationals-trump/index.html “I say the country is owned by We The People. We wrote a Constitution, we put down what we wanted to put in it. We can amend it when we wish and it is not up to nine people to tell 330 million Americans how to live.” In a new book, Neil Gorsuch, A Republic, If You Can Keep It (2019), he puts it another way: Under originalism a judge can’t add or subtract rights willy-nilly. “If you want to change the Constitution, you can do it,” he says.
[30] Id.
[31] Anonymous retired law professor who prefers to remain anonymous. I will here indulge by mentioning that I have received more than one anguished phone call from an acquaintance saying to me, and seeking some sort of comfort from me, “Isn’t it ridiculous that they are saying let the voters decide about a constitutional issue? It is disturbing that they think let the voters decide if something as serious as whether someone who committed treason can run for President.” The retired anonymous professor said, “I can’t stand hearing people say, Let the voters decide.” Anonymous again. For conforming analysis, see Akerman, supra note 19(quoting former Watergate prosecutor Nick Akerman explaining that, "When it comes to electing the president, majority voter approval is not a fundamental precept in the Constitution. From its inception, the Constitution established specific non-negotiable qualifications for eligibility to serve as president”). Let me add that Article V does not contain a provision for amendment by plebiscite. Article V provides formal processes, none of which involve voting by the people.
[32] Nick Robertson, Barr says Colorado court’s Trump ruling ‘legally wrong,’ will ‘backfire’, Hill, (Dec. 20, 2023), https://thehill.com/regulation/court-battles/4370525-barr-colorado-court-trump-ruling-legally-wrong-will-backfire/.
[33] Leaders, supra note 1.
[34] Robertson, supra note 22. The Colorado Supreme Court, unlike Barr’s off-the-cuff “talking head” pronouncement, addressed how the state processes to protect election integrity necessarily required expedition and argued that the courts have the needed capacity to handle such litigation that arises for state adjudication. Further, the court explained that the form of the Fourteenth Amendment, Section Three, which does not specify a process, implicitly leaves the enforcement to the courts. Anderson v. Griswold, 2023 CO 63, ¶121. The court explains at length how the court below diligently and with competence managed the trial process and summarizes, as a general matter: “That the form of section 1-1-113 proceedings [under Colorado’s election code] reflects their function—to expeditiously resolve pre-election disputes over an election official’s wrongful act—does not mean these proceedings lack due process.” Id. at ¶81.
[35] Anderson, 2023 CO 63, ¶106.
[36] Jocelyn Benson, Opinion, It’s not up to Secretaries Like Me to Keep Trump Off the Ballot, Wash. Post (Sept. 13, 2023), https://www.washingtonpost.com/opinions/2023/09/13/secretaries-of-state-trump-disqualification/.
[37] Election Officials’ Manual, Mich. Bureau Of Elections, ch. 1 (Feb. 2019) https://www.michigan.gov/-/media/Project/Websites/sos/01mcalpine/I_Structure_of_MI_Elections_System.pdf?rev=8ade2e2574f140debc8c28af9ca878dc.
[38] The Colorado Court summarizes the differences between Colorado and Michigan laws in the final footnote: “We note that Colorado's Election Code differs from other states’ election laws. Michigan's election law, for example, does not include the term ‘qualified candidate,’ does not establish a role for Michigan courts in assessing the qualifications of a presidential primary candidate, and strictly limits the Michigan Secretary of State's responsibilities in the context of presidential primary elections. See Mich. Comp. Laws §§ 168.613, 168.620a (governing presidential primary elections in Michigan). The Michigan code also excludes presidential and vice presidential candidates from the requirement to submit the “affidavit of identity” that other candidates must submit to indicate that they ‘meet[ ] the constitutional and statutory qualifications for the office sought.’ . . . Given these statutory constraints, it is unsurprising that the Michigan Court of Appeals recently concluded that the Michigan Secretary of State had no discretion to refrain from placing President Trump on the presidential primary ballot once his party identified him as a candidate.” Anderson v. Griswold, 2023 CO 63, at n. 10, cert. granted sub nom. Trump v. Anderson, No. 23-719, 2024 WL 61814 (U.S. Jan. 5, 2024).
[39] E.g., “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.” J. Michael Luttig & Laurence H. Tribe, The Constitution Prohibits Trump from Ever Being President Again: The only question is whether American citizens today can uphold that commitment, Atlantic (Aug. 19, 2023), https://www.theatlantic.com/author/j-michael-luttig/.
[40] Michigan law is seemingly silent on this issue, too.
[41] “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.” J. Michael Luttig & Laurence H. Tribe, The Constitution Prohibits Trump from Ever Being President Again: The only question is whether American citizens today can uphold that commitment, Atlantic (Aug. 19, 2023), https://www.theatlantic.com/author/j-michael-luttig/.
[42] 5 U.S. 137 (1808).
[43] Mich. Comp. Laws 168.80 (1954) (requiring “[e]very person elected to the office of secretary of state or attorney general, before entering upon the duties of his office, shall take and subscribe to the oath as provided in section 1 of article 11 of the state constitution, and shall give bond in the amount and manner prescribed by law, and shall deposit said oath and bond with the secretary of state, except that any person elected to the office of secretary of state shall deposit said oath and bond with the attorney general”).
[44] MI Const. art. 11, § 1.
[45] Tom Crann & Megan Burks, Minn. Secretary of State says he does not have authority to remove Trump from ballot, but individuals can petition, MPRNews (Sep. 8, 2023), https://www.mprnews.org/story/2023/09/08/minn-secretary-of-state-says-he-does-not-have-authority-to-remove-trump-from-ballot (last visited Feb. 8, 2024). (“The problem is that the Office of Secretary of State in Minnesota is not the eligibility police. A lot of people are surprised to know that, but we are not in a position legally, we don't have the authority legally to make eligibility determinations of any kind, whether that's residents, whether that's age, or something else like this. Instead, there's a very definite, very clear procedure in Minnesota law for those who believe someone is ineligible to either be on the ballot or to serve in office.”
[46] See, e.g., Cheney, supra note 112; Cicero, supra note 122; Powell, supra note 121.
[47] Luttig & Tribe, supra note 39.
[48] Benson, supra note 36, does not argue that the question is closed by the Griffin decision, so she is not arguing that the Constitution does not bar Trump from office.
[49] See infra text at notes 55–58,
[50] See Nazarro, supra note 16.
[51] D. Hunter Schwartz, Why Sen. Mike Lee doesn’t believe the 14th Amendment disqualifies Trump, Deseret News (Aug. 30, 2023), https://www.deseret.com/2023/8/30/23850657/sen-mike-lee-14th-amendment-trump (Utah Senator Mike Lee commenting that applying the Fourteenth Amendment to Trump “is a novel legal theory that rests on a tortured reading of the Constitution. . . . To embrace it would dangerously undermine the First Amendment and — if true — disqualify a veritable flotilla of Democratic politicians from ever holding office again”). Senator Lee is so devoted to originalism, he swore “I will not vote for a single piece of legislation that I can’t reconcile with the text and the original understanding of the U.S. Constitution.” Joel Alicea, Forty Years of Originalism, Hoover Inst. (June 1, 2012), https://www.hoover.org/research/forty-years-originalism.
[52] Richard Hasen, The Democracy Canon, 62 Stanford L. Rev. 29 (2009), http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/03/Hasen.pdf.
[53] Id. at 71.
[54] Id. at 72.
[55] See U.S. Const. amend. 14, § 3.
[56] Jefferson Cowie, Freedom’s Dominion: A Saga of White Resistance to Federal Power (2023).
[57] Id. (explaining the white equating of freedom with the right to dominate nonwhite people and hence the link between racism and resistance of federal power, e.g., today the “deep state”). On the attempted effort to black final signed certification of votes from the urban area of Detroit, see Craig Mauger, Trump Recorded Pressuring Canvassers Not To Certify 2020 Vote, Det. News, (Dec. 22, 2023) https://www.detroitnews.com/story/news/politics/2023/12/21/donald-trump-recorded-pressuring-wayne-canvassers-not-to-certify-2020-vote-michigan/72004514007/ (describing a recorded phone call reviewed by the Detroit News in which Trump and the Republican National Committee Chairwoman pressured two members of the Board of Canvassers for the Detroit area (Wayne County) not to sign the certificates and offered to provide attorneys for them if they did not sign).
[58] Judge Michael Luttig @judgeluttig, X (Aug. 20, 2023), https://twitter.com/judgeluttig/status/1693436794522435770.
[59] Domenico Montonaro, Trump Can Only Serve Four More Years. The Reason Why Has A Long And Sordid History, NPR (Sept. 22, 2022), https://www.npr.org/2022/09/06/1120383809/22nd-amendment-explainer (providing a history of efforts to limit Presidential terms and the counter views, including of Presidents, that it would be unwise as well as undemocratic).
[60] An example of an argument in a scholarly law journal that a President (or other official) is not properly subject to impeachment and hence conviction except for the commission of a crime is available in Nikolas Bowie, High Crimes Without Law: Responding to Laurence Tribe & Joshua Matz, To End a Presidency, 132 Harv. L. Rev. Forum 59 (2018) (arguing that an impeachment proceeding is criminal in nature and thus would violate various principles in the Constitution, such as ex post facto laws and due process, if one were brought on a charge that is not a crime) Bowie concedes that his argument goes against the heavy consensus in scholarship that an impeachment proceeding does not require that a crime be charged).
[61] Anderson v. Griswold, 2023 CO 63, ¶46.
[62] Eric Foner, A Regional Reign of Terror, N.Y. Review of Books (April 6, 2023), https://www.nybooks.com/articles/2023/04/06/a-regional-reign-of-terror-jim-crow-by-hands-now-known/ (discussing, in the context of racial rules adopted in the Reconstruction Amendments, how the Supreme Court “rendered nearly toothless” those constitutional protections, with a citation to the book under review, Margaret A. Burnham, By Hands Unknown: Jim Crow’s Legal Executioners).
[63] See Frum, infra note 69. Note here that the financial elites, meeting in Davos, have reached a collective consensus that Trump will prevail in the 2024 election regain the office of President. Alex Sherman and MacKenzie Sagalos, U.S. Executive in Davos See A Trump Victory In 2024, And No Cause For Concern, CNBC (Jan. 18, 2024), https://www.cnbc.com/2024/01/18/davos-us-executives-see-a-trump-victory-in-2024.html?__source=sharebar&fbclid=IwAR2tSd-jRSUTklDAsqdirD7d4a-h8RwgHyImuH5QPt5jA0VemsHIzabFXhY.
[64] Ted Widmer, Lincoln on the Verge: Thirteen Days to Washington 105 (2020).
[65] Baude & Paulsen, supra note 6, at Sec. II, Part A (discussing In re Griffin, 11 F. Cas. 7 (C.C.D.Va. 1869) (No. 5,815) (Chase 364)).
[66] See infra notes 54–58 and accompanying text.
[67] See infra Part I Section C.
[68] Tom Nichols, The Only Way to Stop Trump, Atlantic (Sept. 12, 2023), https://www.theatlantic.com/newsletters/archive/2023/09/trump-2024-fourteenth-amendment-colorado-lawsuit/675297/.
[69] David Frum, The Fourteenth Amendment Fantasy, Atlantic (Aug. 19, 2023), https://www.theatlantic.com/ideas/archive/2023/08/trump-disqualified-president-14th-amendment/675163/.
[70] Id.
[71] Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934) (denying that a clear rate must be given when the consequences—widespread farm failure—are dire).
[72] Frum, supra note 69.
[73] Id.
[74] Garrett Epps, The Looming Supreme Court Nullification Crisis, Wash. Monthly (Aug. 14, 2023), https://washingtonmonthly.com/2023/08/14/the-looming-supreme-court-nullification-crisis/ (noting instances of defiance of Court rulings and arguing that both the left and the right may view the court as only political and hence not possessed of sufficient authority to achieve full compliance with its mandates).
[75] In light of the reality that filings have begun to occur and will continue, I will forego an effort to build a record here of such legal proceedings. Perhaps on a later date, the law review will provide a summary listing of the filings and eventual outcome.
[76] Frum, supra note 69. It may be worth noting that certain of those Frum calls “us” are public officials charged with a constitutional oath of office. For a more careful look at duty invocations for weight and credibility, see Part V.
[77] Frum, supra note 69.
[78] In Judge Luttig’s concession to the need for mass media appearances, he generously recognizes the natural response of the Americans, on first hearing, to the removal of a former President from eligibility for office, and hence for the voters to choose, is to feel shocked and to think it is “anti-democratic.” As a rock-ribbed, Constitution-believing originalist, Judge Luttig entertains the belief that sufficient explanation will clear away that natural first response by those not versed in constitutional commands. “JML: I have seen that criticism, if you will, of applying Section 3 to the former president. And it concerned me because it’s a legitimate question to be asked. But I’ve responded publicly to that concern by explaining that the disqualification that’s provided for under Section 3 is not itself anti-democratic at all. Rather, it’s the conduct that can result in disqualification.” Jordan Rubin, Judge Luttig explains why Donald Trump is disqualified from the presidency, MSNBC (Nov. 2, 2023), https://www.msnbc.com/deadline-white-house/deadline-legal-blog/trump-14th-amendment-judge-luttig-rcna123336.
[79] Here Frum embeds a reference to his earlier article, see Frum, supra note 69, calling the idea of applying Amendment Fourteen, Section Three to Trump a “fantasy” and debunking it as unfeasible as a mean of preventing Trump’s return to the Presidency. Frum admits to being wrong, given the holding of the Colorado Supreme Court adjudging Trump disqualified from the Colorado Republican primary ballot. See Anderson v. Griswold, 2023 CO 63.
[80] David Frum, Suddenly Trump Is Interested in Democracy, As Maine throws him off the ballot, the president who betrayed democracy is now pleading for its protections, Atlantic (Dec. 29, 2023), https://www.theatlantic.com/ideas/archive/2023/12/trump-maine-ballot/676987/?gift=qKvv0_v3V6z0W3y6kw8gAj4jQ2ag8PBNMQICA1APRJc&utm_source=email&utm_medium=social&utm_campaign=social (asking, “Will these [Colorado and Maine] state disqualifications survive Supreme Court review? Even if they are legal, are they prudentially wise ways to protect American democracy against Donald Trump?”). In the highlighted reference to Frum’s being disqualification-curious, he embeds a reference to a supervening article admitting he got it wrong as to what “any contemporary court: would be willing to do.” David Frum, The Colorado Supreme Court Just Gave Republicans A Chance To Save Themselves: They Should Take It, Atlantic (Dec. 19, 2023), https://www.theatlantic.com/ideas/archive/2023/12/colorado-court-decision-trump-14th-amendment/676905/ (exaggerating the gravamen of his argument, which mainly consisted of a list of likely horrible consequences of keeping Trump from competing, including the unwillingness of his supporters to accept the outcome).
[81] David French, N.Y. Times https://www.nytimes.com/by/david-french, (last visited Feb. 10, 2023).
[82] David French, Opinion, Disqualify Trump (or Else), N.Y. Times (Jan. 15, 2024), https://www.nytimes.com/live/2024/01/11/opinion/briefing#trump-disqualification-insurrection. French wrote more than one version, and this essay variously draws quotes from his series.
[83] Id.
[84] Harvard Law Professor Jeannie Suk Gersen provided early coverage of the emerging crisis of election denialism being brewed by Trump and allies. Jeannie Suk Gersen, How Far Could Republicans Take Trump’s Claims of Election Fraud?, New Yorker (Nov. 10, 2020), https://www.newyorker.com/news/our-columnists/how-far-could-republicans-take-trumps-claims-of-election-fraud (leading the article with, “Among the ‘firsts’ associated with the 2020 election, the most norm-shattering of all will be if the candidate who lost never concedes to the one who won.”).
[85] David French, History Argues for Disqualifying Trump, N.Y. Times (Jan. 18. 2024), https://www.nytimes.com/2024/01/18/opinion/trump-14th-amendment-history.html.
[86] Frum, supra note 69.
[87] French, supra note 82.
[88] The General Amnesty Act of 1872, ch. 193, 17 Stat. 142.
[89] David Blight and others have written about the desire among the ruling, white majority in the nation to reconcile and put the bitterness of the conflict behind them, tucked away in a rearrangement of cultural and political memory that left the former bondsmen out of the newly declared sectional amity. David Blight, Race and Reunion: The Civil War in American Memory 4 (2001).
[90] Abraham Lincoln, Speech at the Illinois Republican State Convention (June 16, 1858), https://www.nps.gov/liho/learn/historyculture/housedivided.htm.
[91] Sarah Fortinsky, Haley says US has ‘never been a racist country.’ Hill (Jan. 16, 2024).
[92] French, supra note 85.
[93] Edwin Meese, Attorney General under President Reagan and recipient of the Presidential Medal of Honor by President Trump, is famously political: a staunch Republican, a conservative evangelist, and a board member of the Federalist Society. When A.G. Meese laid out his legal philosophy in an address to the University of Richmond, he staked a disingenuously apolitical claim for originalism, as well as taking a swipe at those pesky professors, by observing, “as I read this mass of writings, [I] see increasing acknowledgement from across the political spectrum on the need for interpretation of the Constitution that conforms to the original meaning of our basic charter. There is, as well, a growing realization that judicially created rights and remedial decrees based on them, bereft as they are of the support or principles found in the Constitution itself, are not sturdy expressions of principle and will be subject to whatever ideological breezes blow through the legal community, be those breezes liberal or conservative.” Remarks of The Honorable Edwin Meese III, Attorney General of the United States, at The University of Richmond, 13 (Sep. 17, 1986) https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/09-17-1986.pdf.
[94] U.S. Const. amend. 14, § 3. That is the precise and well-made argument by Professor Gerard N. Magliocca in a recent opinion piece that is in heavy alignment with my thesis and my arguments. See Gerard N. Magliocca, What the Supreme Court Should Not Do in Trump’s Disqualification Case, N.Y. Times (Jan. 5, 2024), https://www.nytimes.com/2024/01/05/opinion/trump-supreme-court-colorado-ballot.html?searchResultPosition=1.
[95] Id. Professor Magliocca also explains early in the essay that “Section 3 of the 14th Amendment draws a sharp line between law and politics.” He describes the “legal command about who cannot hold office that focuses primarily on individual conduct and does not require congressional action.” He then notes that Section 3, by choice of framers, gave the power of waiver ONLY to Congress, which would act “in the interests of justice or for the common good.” He further explains that Congress is properly the body charged with making a political decision, because it is accountable for it. Id. Query: How might one think about “the interests in justice” as to candidate Trump? What of “the common good?”
[96] “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” U.S. Const Art. I, § 4, cl. 1. For an argument that the precisely correct constitutional decisions by the Supreme Court would be confirming the Colorado Supreme Court’s bar on Trump’s inclusion on the ballot, thereby leaving the matter to the 50 states. See Akhil Reed Amar, The Supreme Court Should Get Out of the Insurrection Business, N.Y. Times (Feb. 7, 2024), https://www.nytimes.com/2024/02/07/opinion/supreme-court-trump-section-3.html.
[97] Zara Anishanslin, What we get wrong about Ben Franklin's 'a republic, if you can keep it’, Wash. Post (Oct. 29, 2019) (tracing the history of the famous quote, and explaining that the noted "wrong" was the erasure of Elizabeth Willing Powell, who used her townhouse as a political salon during the Constitutional Convention).
[98] The View (@TheView), X, at 7:14 (Jan. 2, 2024 10:40AM), https://x.com/TheView/status/1742224265401811048?s=20. For a description of the fragmentation of “media” in the internet age, see Katherine Miller, Trump Cacophony Hits Differently This Time, N.Y. Times (Jan. 1, 2024), https://www.nytimes.com/2024/01/01/opinion/trump-reelection-nominee.html (explaining the acceleration of the fragmentation of news sources even since 2016, with fewer common shared outlets, presumably that might create a common understanding of political choices affected by legal rules).
[99] As noted, such litigation has begun.
[100] Leaders, supra note 1
[101] See Baude & Paulsen supra note 2, at Sec. II, Part C (discussing In re Griffin, 11 F. Cas. 7 (C.C.D.Va. 1869) (No. 5,815) (Chase 364)).
[102] Id. at *117.
[103] Id. starting at *35.
[104] Id. at *38–48.
[105] Id. at *37–43.
[106] The posture of the case involved an opportunity to sidestep a full reading of the Amendment, since it was an attempt by a person convicted in a court administered by a judge who had been a part of the Confederate rebellion. Id. at *36. The Court could well have argued that the acts of officials who were subject to disqualification were not thereby “repealed,” because the disqualification clause did not address the matter and the “inconvenience” of mass cancellation of official acts, especially those promulgated in courts, was not required by the Amendment, nor “convenient.” But they failed to draw the distinction. Id. at *37–40. As to the strong sentiment for reconciliation among white “brothers,” see Blight, supra note 89. In a review in the New York Review of Books, eminent race historian David Brion Davis reviewed Blight’s book and one other. See David Brion Davis, The Terrible Cost of Reconciliation, N.Y. Rev. of Books (July 18, 2002).
[107] Laura Barón-López & Tess Conciatori, Trump amplifies violent rhetoric against his perceived enemies as civil fraud trial begins, PBS News Hour (Oct. 4, 2023), https://www.pbs.org/newshour/show/trump-amplifies-violent-rhetoric-against-his-perceived-enemies-as-civil-fraud-trial-begins.
[108] Circular Reasoning, supra note 18.
[109] Mississippi led to Dobbs. Texas just passed an immigration that is unconstitutional under governing precedent.
[110] Andrew Stanton, Republicans Reject Supreme Court's Power at Texas Border, Newsweek (updated Jan. 27, 2024), https://www.newsweek.com/republicans-reject-supreme-courts-power-texas-border-1864421.
[111] Though first written in 1864, Booth’s letter was apparently signed and delivered for safekeeping during the lead up to his assassination of President Lincoln. The Murderer of Mr. Lincoln, N.Y. Times (Apr. 21. 1865), https://www.nytimes.com/1865/04/21/archives/the-murderer-of-mr-lincoln-extraordinary-letter-of-john-wilkes.html.
[112] Liz Cheney, Oath and Honor: A Memoir and A Warning (2023).
[113] Id. at 51. Cheney also emphasizes that “the oath [to the Constitution] must supersede any duty to represent their constituents.” Id., at 49. It clearly follows that self-serving claim that trying to prevent the counting of the ballots out of a “duty” to constituents upset about the loss of their candidate is, in a word, bogus. For this paper, the issue is who has a duty to enforce Amendment Fourteen, Section Three, and what arguments not to give it effect follow a genuine basis in constitutional duty? And how do we assess them as credible invocations of a duty in any given role, including as a citizen.
[114] Id.
[115] Id. at 56 (quoted in passages describing the work organizing the statement by these former officials of the defense department). Ashton Carter, et al., Opinion, All 10 living former defense secretaries: Involving the military in election disputes would cross into dangerous territory, Wash. Post (Jan. 3, 2021), https://www.washingtonpost.com/opinions/10-former-defense-secretaries-military-peaceful-transfer-of-power/2021/01/03/2a23d52e-4c4d-11eb-a9f4-0e668b9772ba_story.html.
[116] Cheney, supra note 112, at 56.
[117] Id. at 55–56.
[118] Id. at 57.
[119] See infra Part V.
[120] Katy Lin & Carroll Doherty, Favorable views of Supreme Court fall to historic low, Pew Rsch. (July 21, 2023), https://www.pewresearch.org/short-reads/2023/07/21/favorable-views-of-supreme-court-fall-to-historic-low/.
[121] H. Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008).
[122] Cicero, On Duties, Ed. by M.T. Griffin & E.M. Adkins 24-25 (1991)
[123] Id. at 25.
[124] Cheney, supra note 112, at 85–86.
[125] U.S. Const. art. I, § 4, cl. 1: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators. See ArtI.S4.C1.2 States and Elections Clause, Const. Annotated, https://constitution.congress.gov/browse/essay/artI-S4-C1-2/ALDE_00013577/ (last visited Jan. 21, 2024) (describing the “expansive” interpretation by the Supreme Court of the clause to lodge oversight of elections mechanics, including “procedures and safeguards” to the states). The Elections clause makes no mention at all of the President.
[126] Who is Rep. Rusty Bowers and why is he testifying before the Jan. 6 committee?, Politics. PBS News Hour, (June 21, 2022), https://www.pbs.org/newshour/politics/who-is-rep-rusty-bowers-and-why-is-he-testifying-before-the-jan-6-committee. The futility of using an oath to God to supply content for a ministerial task is evident in the experience of Kentucky Clerk of Court Kim Davis, who refused to issue same-sex marriage licenses on the basis of her religion. Christine Hauser, Kentucky Clerk Who Denied Same-Sex Marriage Licenses Must Pay $260,000 in Legal Feels, N.Y. Times (Jan 4, 2024).
[127] The oath to God may well supply for some people a bond with moral seriousness but it is not necessary for a constitutional system of government for oaths to bind those who take them to a good faith devotion to the content of the Constitution. Liz Cheney provides a good example of someone whose devotion is to the Constitution and whose moral seriousness about the oath is buttressed by having sworn it “under God.” See Cheney, supra at 112. (explaining in her statement released on January 6 before Congress convened that, “We have sworn an oath under God to defend the Constitution.”).
[128] Id. at 159.
[129] See Leaders, supra note 1, at Part I.
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“Mae Kuykendall, Constitutional Dread, Meet Fourteenth Amendement, Section Three, A Postscript to How Leaders Come and Go, MICH. ST. L. REV. FORUM (Nov. 27, 2023).”
Originally published on the Michigan State Law Review Online Forum