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.
We were immensely gratified to see that a richly researched article soon to be published in an academic journal has recently come to the same conclusion that we had and is attracting well-deserved attention outside a small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of Management, whose encouragement inspired us to write this piece. The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.
An insurrection in a colloquial or political sense is not the same as an insurrection in a constitutionally binding sense. The Congressional Research Service notes that the Insurrection Act describes a situation in which it is “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” That doesn’t seem to apply to the Jan. 6 violence, after which participants were vigorously prosecuted in federal court.Trump probably gave “aid or comfort” to the mob with his disgraceful delay in responding to the violence at the Capitol — but to be constitutionally disqualified, an official must give aid or comfort to “enemies” of the country. As the Congressional Research Service also notes, “history … suggests that an ‘enemy’ is one who owes allegiance to an opposing government and not merely a U.S. citizen opposing the U.S. government.”
IInsurrection is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. The term “insurrection” connotes something more than mere ordinary lawbreaking. It suggests an affirmative contest with, and active resistance to, the authority of the government. It is in that sense more than just organized resistance to the laws—more than just a protest, even one involving civil disobedience. Rather, it is organized resistance to the government. Insurrection is also more than mere “protest” in that it implies some element of forcible resistance. It is something more than a mere spontaneous, disorganized “riot.” Insurrection suggests at least some degree of coordinated, concerted action. The term also implies something more than acts of solitary individuals: to qualify as an insurrection the acts in question must involve some form of collective action, even if not an advance plan.
We believe that “enemies” as employed in Section Three, embraces enemies both foreign and domestic. That now-familiar phrase (“enemies foreign and domestic”) comes from the “Ironclad Oath,” written into law in 1862, in the midst of the Civil War, and it seems clear from the political context of Section Three, enacted in the wake of a domestic civil war, that domestic enemies are enemies. It is almost unthinkable that Confederate rebels would not have been thought “enemies” in the sense employed by the text. Given the history and context of Section Three “enemies” seems to include the domestic rebels and insurrectionists just described earlier in the sentence.