Yale University’s historian and professor, Timothy Snyder, ended his article published last month with the words, “We Can have The Constitution or We Can Have Trump.”
His writing resurfaces the 14th Amendment’s Section 3, first made mention during Trump’s impeachment days. It reads,
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by vote of two-thirds of each House, remove such disability.
Snyder makes the argument that Donald Trump (absent a vote of two-thirds of both houses of Congress) “…is now ineligible for the office of the presidency”. Conservative former federal appeals judge J. Michael Luttig, liberal Harvard professor of constitutional law emeritus, Laurence Tribe, and Northwestern University’s Law School’s conservative professor and a founder of the Federalist Society, Steven Calabresi, have all, with conviction, concurred.
Snyder’s advocacy takes on added steam; witness his reference to two acknowledged and premier constitutional law scholars who are also members of the Federalist Society, William Baude and Michael Stokes Paulsen, writing an exhaustive law review tome for the University of Pennsylvania to be published next year, “The Sweep and Force of Section Three,” They conclude Section Three “…disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
Two days before the Snyder piece appeared, the New York Times’ Adam Liptak scribed what they wrote, “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6.” This topic was addressed, also last month, by the Washington Post’s election law writer, Ned Foley, and the LA Times’ David Lauter, in microcosm to other journalists and media outlets recently covering the topic.
Liptak penned, “A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy.” Such an observation is fool’s gold, for it improperly trivializes Section 3’s mandate by suggesting voters will be the only mechanism to assess his eligibility.
Unlike anyone wanting to be our president has to first be 35 years of age or older, a natural-born citizen, a U.S. resident for at least 14 years, and who has not broken their oath of office to support the Constitution’s sacred charter by engaging “…in insurrection or rebellion against the same or given aid or comfort to the enemies thereof”, it is only Section 3 of the 14th Amendment that assesses, with originalist’s authority, why Trump cannot have his name placed on any state ballot. Although there is no doubt Trump is knee-deep connected to the insurrection, equally true is that the wording of Section 3 fails to identify what steps are next taken.
For example, the facts tying Trump to the insurrection only become beyond a reasonable doubt when a jury tells us so. Do we then need Jack Smith’s or Fani Willis’ prosecutors to obtain a guilty verdict as a predicate to applying Section 3 to Trump? If so, do we need all appeals of that jury’s verdict exhausted? Or is it enough to only have one state’s highest election official make an independent determination that Trump’s involvement up to and on 1/6 makes him forever ineligible? Luttig and Tribe both believe, however, that Section 3 is self-executing.
This constitutional standard in recent times has been used in court three times, once involving former Rep. Madison Cawthorn (R-NC), another involving Marjorie Taylor Green (R-Ga.), and in a local court in New Mexico using the insurrection standard. No doubt there will be legal challenges brought by voter(s) or at least one state’s election official, typically a Secretary of State, based on Section 3, though Luttig and Tribe also tell us, again, Section 3 operates independently of criminal proceedings, even congressional legislation; even so, they admit the Supreme Court will have to be the final arbiter. One such case has, nonetheless, now just been filed in federal court in Florida.
Certainly, knowing the outcome of any of the criminal trials involving Trump before election day is critically important for judging Trump’s worthiness to ever hold office again. Concomitantly, with conservative scholars like Baume, Paulsen, and Calabresi, a jurist ala Judge Luttig, together with commentary by noted academics like Snyder and Tribe, and writers like Liptak, Foley, and Lauter, there exists reliably convincing authority to have Section 3 take on Trump.
After all, if it’s the Constitution versus Trump, there should be no question but that the former—rules of law provided by our founders in their founding piece of parchment—must prevail as a north star governing our democracy. Let’s hope so.
A graduate of Case Law School in Cleveland, Miles Zaremski is the longest-serving chair of the American Bar Assoc.’s Standing Committee on Medical Professional Liability and a past president of the international organization, The American College of Legal Medicine. He is also an author of many acknowledged and peer-reviewed publications, including several articles published by this site.