Within minutes after the Jan. 6, 2021 Capitol Hill riot began, the Democrats, the corporate media, and countless progressive law professors unanimously declared that it was an “insurrection.” Inevitably, they accused then-President Trump of inciting this purported uprising in order to overthrow the 2020 election. Most Americans, however, saw the mayhem merely as a protest that devolved into a riot. Then the other shoe dropped. The people promoting the “insurrection” narrative developed an intense interest in Section 3 of the 14th Amendment, which disqualifies anyone from holding public office at the federal or state level if they have “engaged in insurrection or rebellion against the United States.”
If the Democrats … are so sure Biden can easily defeat Donald Trump, why are they working so hard to … get him off the presidential ballot?
Not coincidentally, the Democratic majority in the House of Representatives used this as a pretext for impeaching then-President Trump for “incitement of insurrection.” The Senate acquitted him, of course, and speculation about the 14th Amendment died down. The consensus among constitutional scholars has long held that Section 3 was meant to apply only to Confederate officials who rebelled against the United States during the Civil War. Recently, however, a couple of never-Trump legal scholars, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, published an article claiming that Section 3 still disqualifies Trump from becoming President again:
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.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.
Fourth, 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.
Any claim that Baude and Paulson have to nonpartisanship is belied by the final sentence of the above. For them, it is self-evident that Trump is guilty of insurrection, despite his Senate acquittal and the failure of any court to convict him of the charge. They are clearly hoping to provide a constitutional fig leaf for far left activists who plan to sue any state that dares to include Trump on its 2024 presidential ballot. According to an AP report, groups such as “Citizens for Responsibility and Ethics in Washington” and “Free Speech for People” are already preparing to file court cases. The latter organization has warned election officials in all 50 states to expect lawsuits if Trump appears on their 2024 ballots. (RELATED: Will Trump Donors Keep Funding His Legal Battles?)
These groups intend to deprive millions of the right to vote for the presidential candidate of their choice. Fortunately, the courts have thus far taken a dim view of such litigation. Last Thursday, for example, a federal judge dismissed a Section 3 lawsuit filed by Florida attorney Lawrence Caplan challenging Trump’s right to appear on the Sunshine State’s 2024 ballot. Judge Robin L. Rosenberg, an Obama appointee, succinctly disposed of the case: “[A]n individual citizen does not have standing to challenge whether another individual is qualified to hold public office.” This is the fate most challenges will suffer according to Notre Dame Law Professor Derek Muller, who predicted the demise of Caplan’s case:
This case, like many of the others already pending and about to be filed, will surely fail. Already in Florida, one case has been tossed out and is on appeal before the 11th Circuit (Castro v. Trump), the grounds being lack of standing and ripeness issues. The paradigmatic “generalized grievance” is a voter who shares an injury with all other prospective voters — and there is no Article III jurisdiction over the case … Another (Stilley v. Trump) is pending in Arkansas. A congressional candidate in New Hampshire is considering a similar path.
Nonetheless, sooner or later, one or more of the attempts to remove Trump from a state ballot will succeed and it will create chaos for election officials and voters. The question would necessarily be resolved by the Supreme Court — which would come under intense pressure from the left to rule that Trump disqualified himself pursuant to his actions before and after the Jan. 6 Capitol riot. Last year’s antics surrounding the Dobbs decision will seem like a garden party compared to the violence that would follow a SCOTUS ruling that Trump cannot be disqualified pursuant to the “insurrection.” Inevitably, it would be compared to Bush v. Gore by the Democrats and the corporate media and all Hell will break lose.
If the Supremes cave to the left, on the other hand, Trump will merely be the first domino to fall in a long cascade of Republicans in Washington and the states to be disqualified from holding office pursuant to their “participation in the attempted overthrow of the 2020 presidential election.” Seem far-fetched? Go back and read what Baude and Paulson have to say about Section 3 as it relates to core constitutional principles: It “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.” Not even the Chief Justice is pusillanimous enough to sign off on such an abomination. (READ MORE: Why Trump Wasn’t Charged With Insurrection)
All of which raises the following question: If the Democrats, the corporate media and the academic left are so sure Biden can easily defeat Donald Trump, why are they working so hard to put him in the gray bar hotel or get him off the presidential ballot? As this is being written, RealClearPolitics shows Trump essentially tied with Biden in the 2024 polls, despite the best efforts of the Justice Department and local Democratic prosecutors to convict him of something — anything. In fact, three of the last six polls show Trump leading Biden. This suggests that professors Baude and Paulson have dusted off Section 3 of the 14th Amendment hoping to prevent the voters from being able cast a ballot for Trump at all.