In dueling long essays in the invaluable online journal Public Discourse, two of my favorite legal scholars, Matthew Franck and Michael McConnell, present excellent competing accounts of the legal arguments over whether Donald Trump is disqualified from the presidency under section 3 of the 14th Amendment for having “engaged in insurrection.” Franck argues yes, McConnell no.
I present here a selective account of key arguments they make, but I encourage you to read the full essays. (In order to avoid clutter, I’ve eliminated some ellipses.)
Let’s start with Matt Franck:
Must Congress legislate some enforcement mechanism for disqualification under Section Three, without which it is effectively a dead letter?
No. By its terms, and like the terms of the first, second, and fourth sections of the Fourteenth Amendment, Section Three is “self-executing.” That means that its terms have their full force and effect in law without any need of “enabling” legislation on Congress’s part. So the Reconstruction Congress plainly understood it, as the members voted on a number of occasions to deny seats to putative members-elect who had been active supporters of the Confederacy after earlier taking an oath to the Constitution. In those cases, each house of Congress was itself the judge of what qualified a person for membership in the body, without any need of reference to a statute on the subject.
Chief Justice Salmon P. Chase, sitting as a circuit judge in Griffin’s Case in 1869, held that the ruling of a judge in a Virginia court could not be set aside owing to the judge’s Section Three disqualification for his office, because no congressional act could be cited on the subject. But as Baude and Paulsen show at length—and the Colorado court does as well—Chase’s opinion on this matter was fundamentally unsound. The most basic problem is that, by parity of reasoning, if Section Three requires an enforcement statute enacted under Section Five of the Fourteenth Amendment, then so do all the provisions of Section One—citizenship, privileges or immunities, due process, and equal protection of the laws—and that has never been the law.
If criminal conviction is unnecessary, and Section Three is self-executing without further legislation, then who is to execute its terms by determining that someone is disqualified?
Anyone in a responsible position for administering an election of qualified candidates must decide who is qualified to be on the ballot. And an insurrectionist who previously took an oath to the Constitution is disqualified—just as is anyone who fails to meet age, citizenship, or residence requirements. (Similar considerations of inclusion and exclusion would govern those who are responsible for the appointment of others to state or federal office.) This means that a state elections official, such as a secretary of state, or a state court with a case properly before it (which can depend in part on relevant state law), is called upon to be an “enforcer” of this constitutional requirement. The complaint that “random state judges” or “petty state election officials” are making a determination of Trump’s ineligibility for office has no merit. Every legislator and officer of government, state or federal, takes an oath to the U.S. Constitution, including to the terms of Section Three. Subject to review by any higher authorities or courts to which they must answer, those officers are doing their job by keeping an insurrectionist off the ballot in their jurisdiction.
[W]hat norms should govern the Court’s deliberations? Isn’t “judicial restraint” called for here?
[The] meaning [of section 3] is a kind of open question. It may be appropriate for the justices, as reviewers of others’ exercise of their constitutional responsibilities, to give the benefit of the doubt to the determinations of state election officials and state courts on Trump’s disqualification.
But not too much benefit of the doubt. Already there are conflicting determinations in different jurisdictions, and the Court ought to resolve such conflicts. This being a genuine case of first impression as well, concerning a putatively insurrectionist former president seeking to return to that office, one could argue that the presumption should run the other way—that the Court should presume Trump is qualified until it is shown that he is not.
Yet certainly no heavy presumption in the candidate’s favor is called for. This, I think, would misconceive the meaning of judicial restraint. For we would not entertain a heavy presumption in a candidate’s favor where other, simpler defects of qualification are concerned, of age, citizenship, residence, or the fact of having already served two terms as president. Moreover, since the disqualification owing to insurrection on the part of an oath-taking officer can be lifted by a vote of two-thirds of each house of Congress—a “re-qualification” that is not permissible where any other eligibility norms are concerned—the justices can be confident that the legislature can rectify a serious miscarriage of justice.
Hence, I would counsel that the justices proceed with very little, if any, presumption in favor of a candidate’s eligibility.
What was Donald Trump’s objective on, and in the days leading up to, January 6, 2021, and how did he pursue it?
It was clear by the end of the week in which the 2020 presidential election was held that Trump had been defeated by Joe Biden. As we now know, this was repeatedly made clear to Trump himself by many of those in his inner circle, including Attorney General William Barr. Trump nonetheless was determined to remain in office on the pretext of a “stolen” election. That is to say, he sought to displace—or overthrow—the lawfully constituted authority of the incoming president, and to seize power after losing the election. Such displacement or overthrow, a seizure of power in defiance of the law, had all the elements of “insurrection or rebellion” save, arguably, one: the employment of force or violence.
The omission was supplied on January 6, the day a joint session of Congress met to tally the electoral votes in the presidential election, when Trump spoke to a rally of his supporters at the Ellipse, instigating the violent mob invasion of the Capitol for the sake of preventing the official proceeding over which his own vice president, Mike Pence, presided. Any outcome other than the congressional ratification of Biden’s electoral victory would have benefited Trump—either Pence’s bald declaration that Trump had won with the votes of “alternate electors,” or a freezing of the process while swing states “reconsidered” their electoral results, or even an indefinite forestalling of any result at all thanks to the continual objections of Trump allies on Capitol Hill. The mob attack on the Capitol was Trump’s leverage for staying in office by any means necessary. The aim was to prevent a Biden presidency.
And here are key parts of McConnell’s response to Franck:
Section Three Should Be Strictly and Narrowly Construed
As part of the Constitution, Section Three must be enforced to the full extent of its text and historical meaning. But we must not forget that an expansive interpretation will empower partisan politicians such as state secretaries of state to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government,” said the Supreme Court in Reynolds v. Sims (1964). Section Three must not be interpreted any more broadly than its text and history compel. It would be wrong as a matter of sound constitutional interpretation, and catastrophic as a matter of national harmony and the reputation of the Court, to disqualify a candidate supported by tens of millions of Americans, unless the argument for doing so is objectively solid and compelling. If the arguments for disqualification are iffy, they should be rejected and the question of Mr. Trump’s fitness for office left to the voters to decide.
Must Congress Legislate an Enforcement Mechanism for Disqualification under Section Three?
The most likely course for the Supreme Court to decide the disqualification case is to follow precedent from 1869 and hold that Section Three requires enactment by Congress of an enforcement mechanism…. There are four reasons why the Court will find this approach attractive.
First, it would not involve any contentious Trump-specific judgments. Second, the Court would be following precedent. The one and only federal judicial decision on the meaning of Section Three rendered during the period disqualification was in effect was Griffin’s Case (1869). The opinion was by an eminent legal figure, Chief Justice Salmon P. Chase. Chase had been a leading abolitionist lawyer, served in Lincoln’s cabinet, was Lincoln’s nominee to replace Roger B. Taney as Chief Justice, and knew everything there was to know about the Fourteenth Amendment. Chase, sitting as a Circuit Judge, held that Section Three is not self-enforcing. He wrote:
For in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided by congress.
Third, the leading figures in the drafting and enforcement of the Fourteenth Amendment agreed with Chase that Section Three would require implementing legislation….
Fourth, the notion that the Fourteenth Amendment empowered states to enforce Section Three in federal elections without congressional authorization is wildly ahistorical. The Reconstruction Congress would never have enabled state courts and officials in places like Virginia and Alabama to decide who was qualified to be president.
Were the Events of January 6 An “Insurrection or Rebellion” within the Meaning of Section Three?
Whether the events of January 6 were an “insurrection or rebellion against the Constitution of the United States” is the most subjective issue in the case, and the least susceptible to dispassionate legal analysis. Was January 6 an attempted coup, the product of an organized conspiracy to deprive the voters of their lawful choice of Joe Biden as president? Or was it a spontaneous protest by citizens who honestly believed the election had been stolen, and which unexpectedly spiraled out of control? People on both sides of this debate are confident they are right—and their counterparts are equally confident the other way. Because of that intractable disagreement, I suspect the Supreme Court will be careful to decide the case on other grounds.
But what is the best legal answer? The constitutional terms “insurrection” and “rebellion” are at the high end of the spectrum of political violence. The historical example that the framers had in mind was obviously the Civil War. No one suggests that January 6 was anything like the Civil War. The question remains, however, just how serious political violence must be to warrant the same sanction of disqualification from political office.
The operative terms of Section Three come from the Second Confiscation Act of 1862, which, in turn, borrowed from the concept of treason as discussed in Blackstone. According to Noah Webster’s 1828 Dictionary of American English, an “insurrection” is a “rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state,” while “rebellion” expresses “a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction.” Both terms connote a concerted challenge to governmental authority. An insurrection must be distinguished from a “riot,” which is the violent action of a mob, often an expression of mere anger or an attempt to pressure government officials to exercise their powers in a particular way. Riots typically interfere with the carrying out of federal and/or state law but do not challenge the fundamental authority of the regime.
In my personal judgment, January 6, shameful as it was, looked more like a riot than an insurrection. It lasted only about three hours, most of the participants acted on the spur of the moment, few of them carried firearms, and their objectives were narrow: to pressure Congress and the vice president to correct what they (baselessly) thought were fraudulent election returns. It was a sad and dangerous day for the republic, but it was not a “rising against civil or political authority” and was not an insurrection against the Constitution of the United States. I recognize that others have a different view. But will the Supreme Court regard their perspective as so persuasive that it will disqualify from office a man who might well be the majority choice of the electorate?
The best reason to be skeptical that the events of January 6 were an “insurrection” in the legal sense is that none of the January 6 defendants have even been charged with, let alone convicted of, that crime.