Editor's Note: On December 19th, 2023 the Colorado Supreme Court ruled that Former President Donald Trump is ineligible to appear on the Republican primary ballot. On February 8, 2024 the United States Supreme Court heard argument on this question. This topic was discussed at the 2023 National Lawyers Convention. The discussion can be viewed or read on this page. The audio and transcript of the U.S. Supreme Court oral argument can be found here. The Colorado Court's decision can be read here.
Nate Kaczmarek: Good afternoon. Good afternoon. Please take your seats. Hello, and thank you for joining us. My name is Nate Kaczmarek. I’m Vice President and Director of the practice groups for The Federalist Society. I hope you are enjoying day two of our convention. It’s my pleasure to welcome you to this special session on “Insurrection and the Fourteenth Amendment.” The topic is obviously a big one. We could spend the whole conference exploring the many aspects of this theme, but we only have 60 minutes, and so I will quickly introduce our moderator and look forward to our conversation amongst three great scholars.
I was asked by our moderator to keep her introduction to one sentence, and so I will reluctantly oblige. Professor Julia Mahoney is the John S. Battle Professor of Law and Joseph C. Carter Jr. Research Professor of Law at the University of Virginia School of Law, and we are delighted to have her guide this conversation. With that, please join me in welcoming her and our discussants.
Prof. Julia Mahoney: Good afternoon. Thank you for being here for our discussion of “Insurrection and the Fourteenth Amendment.” We are very lucky to have two extremely distinguished scholars here who have distinct yet, in some respects, overlapping views. I will introduce them briefly—their full bios are available in your materials—then each will provide an opening statement of approximately 12 minutes, after which I will ask a couple of questions to get our discussion going. Then we will turn this over to all of you and entertain audience questions. We have only one hour for an event that I am confident could last until midnight so keep questions short. Thank you all in advance.
So first, we have William Baude. He is the Harry Calvin Jr. Professor of Law and the Faculty Director of the Constitutional Law Institute at the University of Chicago Law School. And we also have with us, Michael W. McConnell. He is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, as well as a Senior Fellow at the Hoover Institution. From 2002-2009, Professor McConnell served as a circuit judge on the United States Court of Appeals for the Tenth Circuit. So with that --
Michael McConnell: Where Will was one of my best law clerks, so I claim everything he knows he learned from me.
Prof. Julia Mahoney: No doubt. So Professor Baude, I turn it over to you.
Prof. William Baude: Thank you. Could we have the first slide with the text on it? The next slide. Thanks. Our topic is Section Three of the Fourteenth Amendment, which says that “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.”
This provision was enacted under the Constitution in the wake of the Civil War to keep people out of office who had previously held federal office, taken constitutional oaths, and then engaged in insurrection or rebellion against the United States or the Constitution. The question is what it means for us today, and I think there are two important topics: one about procedure, one about substance. So let me offer a few words about each.
First, on procedure. How does this work? What needs to happen for this provision to work? The provision is a self-executing qualification for office. “No person shall be” parallels the language for qualifications for office the Constitution already contains that say no person shall be a senator or representative who doesn’t meet various requirements of age, residency, and citizenship, that no person shall be eligible to the office of president if they’re not a natural born citizen, and so on. “No person shall” is the language the Constitution uses to say, “These are the rules for holding office.” The Constitution itself does not allow you to assume office unless you meet the criteria.
Section Three adds to these qualifications one new and important qualification, namely that you can’t have engaged in an insurrection after swearing to support the Constitution. We know that it works this way, for sure, by comparing it with other parts of the reconstruction amendments. For instance, the Thirteenth Amendment—which bans -- which says slavery and involuntary servitude shall not exist—was an immediately self-executing legal rule. When it was enacted, slaves were immediately entitled to their freedom. Other parts of the Fourteenth Amendment—no state shall deny due process, equal protection, and so on—immediately gave people new legal rights against the states.
Section Three works the same way, and we know this for extra sure because Section Three, after the long clause about no person shall, has a clause that refers to Congress and says, “Congress can lift this restriction by a two-thirds vote.” So the one time that Congress needs to act to activate this -- to act under this provision, is to deactivate the provision, not to activate it. That is, immediately upon insurrection or rebellion, anybody who’s covered by this clause cannot hold office. And if Congress wants to change that, they can do so, but they are the ones who have to act.
There is a case by Chief Justice Chase—not a Supreme Court case but a case of no real precedential value now—called Griffin’s Case, that says otherwise and is wrong.
Prof. William Baude: And we’re happy to talk about it more, but I think it’s wrong, and this is pretty straightforward.
The harder question is -- so to say the clause is self-executing doesn’t mean that it’s self-enforcing. The Fourteenth Amendment is not itself walking around the ballroom or the halls of any state secretary of state scrubbing people off the ballot or stopping them from getting into office. So how does this actually work? And the answer, again, is that it works like other provisions of constitutional qualifications.
So there are a whole lot of steps at the holding and seeking of various offices where you have to ask, “Can the person hold this office?” For instance, the Constitution says that on inauguration day, if the president elect shall have failed to qualify, the vice president shall act as president, not the president. So we know explicitly that somebody who’s disqualified cannot take the office of president. Before that, there’s a step of counting the electoral votes, there’s a step of selecting electors during the presidential election, putting people on the ballot, putting people on the primary ballot, and so on. And at any step where the law chooses to ask whether the candidate’s qualified, this is one of the qualifications they have to enforce.
That means, in many states, at either the primary stage or the general election stage, the state will ask, “Is this person qualified to hold office eventually?” States don’t have to do that. Technically, a state could choose to put somebody unqualified on the primary ballot or even to put somebody unqualified on the general ballot. They run a risk in doing so, of course, that the people’s votes from that state will be thrown out or wasted if the candidate turns out not to be qualified. So there are procedures in various states to test qualifications.
The Minnesota Supreme Court issued a decision just this week, saying that when it comes to the primary, Minnesota law allows unqualified candidates to be on the ballot because it’s really just the party’s decision who they want to put up for the general election but that it may well be different when it comes to the general election. And when that happens and the suit is ripe, the Minnesota Supreme Court may well hear that case in its original jurisdiction. There are cases pending now in Colorado District Court, in the Michigan Court of Claims—which apparently has the authority over ballot access questions—in different procedures around the country.
But at each of these steps, the states can choose to ask, “Is the person seeking office entitled to hold office?” It’s a little funny because technically you vote for presidential electors, not for a presidential candidate, but for many, many years, states have chosen -- have recognized that you’re really voting for president. They put the president’s name on the ballot, and we litigate who the electors shall be in the name of the president they’re seeking to elect.
That’s procedure. These procedures are happening now, and they are the forum to ask the question: who is covered by this clause? What is an insurrection? And could we get the last slide? Is that possible? Great.
So in a very long article, written with my co-author Michael Stokes Paulsen, we detail contemporary dictionaries, speeches by President Lincoln, statutes enacted by the Civil War Congress, case law from the Supreme Court—such as the Prize cases—historical precedence leading up to the enactment of the Fourteenth Amendment, especially the use of the Insurrection Act against a series of insurrections throughout American history, ranging from the Whiskey Insurrection to the slave rebellions, and we conclude that an insurrection is best defined as concerted forcible resistance to the authority of government to execute the laws in at least some significant respect—so group resistance by force to the authority of government to execute the laws.
A rebellion goes further than that. A rebellion is, of course, an effort to overturn or displace the lawful government through unlawful means. An insurrection is not necessarily an attempt to take over the government. So the Whiskey Insurrection—what we now call the Whiskey Rebellion, but what they called, actually, the Whiskey Insurrection—was a paradigm case of insurrection where a group of farmers who didn’t want to pay a federal tax tried to forcibly resist the government’s authority to collect the tax. They weren’t trying to take over the government. They weren’t even trying to take over Pennsylvania. They just didn’t want to pay the tax, and they thought the government didn’t have the authority to tax them. That was one of the classic examples of an insurrection invoked when Section Three was written. That’s the kind of thing Section Three applies to today. It’s the kind of thing Section Three applies to today.
Now the question of the hour. Were the events of January 6 an insurrection? Were they a concerted forcible resistance to the authority of government to execute the laws in at least some significant respect? I think the answer is, yes. There was force. There was a concerted group that entered the Capitol by force, in part, to resist the authority of Congress to count the electoral votes in the way that Congress thought that they should count them. It, in fact, parallels quite closely some of the earlier insurrections in our history, like the Whiskey insurrection and others: Fries’s Rebellion and more. I think it’s hard to see January 6 as anything other than an insurrection.
The harder question is who engaged in that insurrection? And, in particular, did former president Donald Trump engage in the January 6 insurrection that was covered by the Constitution? I think the best answer is he did. It’s not for me, ultimately, to adjudicate this. This, again, is a question that should come up in the Michigan Court of Claims and in the secretary of states’ offices around the country, perhaps later in the halls of Congress.
But I think the best understanding of the events of the day, so far, is that Donald Trump did engage in the insurrection of January 6 by doing two things: One, by calling the crowd together and inciting them to march on Congress. There’s a famous speech he gave at the ellipse. The speech is somewhat ambiguous. There are times in the speech he tells them that they should go peacefully, which might be telling them to go but not to engage in insurrection. There are parts of the speech that seem to cut the other way. By itself, maybe that would be a little bit ambiguous, whether that’s direct engagement in the insurrection that followed.
When you combine that with the president’s actions after the insurrection had begun, his failure to take steps to ensure that the laws were faithfully executed for a long period of time, his failure to call out the National Guard and other authorities, his failure, basically, to exercise his constitutional office and that that casts his speech at the ellipse in a different light and also is itself a form of engaging in the insurrection.
So if you take the before and the after together and you look at the insurrection as a whole, I think the best answer is that Donald Trump engaged in that insurrection, and I think that’s what the Constitution tells us, that he cannot hold the office of president in the future. Thanks.
Prof. Julia Mahoney: Thank you. Thank you very much. Professor McConnell, what do you have to say in response to correct your errant former clerk?
Prof. Michael McConnell: [Laughter] Well, thanks very much. Appreciate seeing such a large audience here. I’d like to just begin by suggesting a principle of construction. That is, Will and my also very close, long-standing friend Michael Paulsen wrote this article about the sweeping reach of Section Three. And in it, they call—I guess, my favorite set of adjectives -- they referred to the—and adverbs too—incredibly broad sweep of conduct that is caught up in Section Three. And I would just urge whatever we may think about any of the specific issues, it should not be given an incredibly broad sweep.
What we are talking about here is giving a large number of officials all over the country, many of them elected—like state secretaries of state—many of them highly partisan -- giving them the authority to disqualify from the ballot their political opponents. Section Three is, of course, there. It must be given its proper application, but let’s not take it any farther than its terms and its history actually require. So that is the, sort of, interpretive mode with which I look at all of these questions.
There are any number of very interesting issues about the meaning of Section Three. There’s several I’m not going to spend much time on, but I want to flag them because there’s a lot of scholarship about it. The first question I’m not going to spend much time on is does it apply to the presidency at all? And I assume Josh Blackman is out there somewhere. Hi. Hi Josh. So Josh and Seth Barrett Tillman have written a one hundred and -- I think it is thirty, or was it 280 -- it felt like 520 --
-- page article, arguing at length that Section Three doesn’t apply to the presidency. They’ve been joined by people like Kurt Lash, Attorney General Mukasey. Steven Calabresi, upon reading this article, was persuaded. And if afterwards you’d like to hear the details, there are actually different, quite substantial arguments about why it doesn’t apply to the presidency. I’m not going to spend much time on that because—especially from my perspective as a former judge—I think it is exceedingly unlikely that any court or authoritative institution will decide a case on this ground. And the reason is it just seems so counterintuitive.
Why don’t we get the words of Section Three back up here? You read the words that refers to “any office, civil or military, under the United States,” and to say that the presidency is not an office under the United States will just strike most Americans as being really silly. And I believe that any court that is going to be deciding a Section Three case—and I do hope that we’ll get back the language up there. Who’s handling -- there. Thank you.
I think a court looking at this is going to have to look at it very seriously and soberly, and they’re not just going to be looking at text and history, but they are going to be making arguments that will resonate and make sense with the American public because if they don’t, there will be hell to pay and, I think, on either side of the matter. And I think the argument about the presidency is—although, I actually -- we, who are textualists, should care. And I think, actually, Will’s paper needs to deal with these arguments more seriously than it does. But in the real world, that isn’t going to fly.
Another very interesting question that Will spends a great deal of time on is whether there’s a requirement for enforcement legislation. And as Will points out, the -- Chief Justice Salmon Chase, in 1869—that is the year after the Fourteenth Amendment was ratified—in a written opinion—not for the Supreme Court but in his circuit court duties—held that there must be enforcement legislation in order to carry a Section Three into effect. Now, Will has a number of arguments why he doesn’t find that decision persuasive, but the decision actually does exist. We call these things precedence.
And Chief Justice Chase -- let me -- something about him. He was one of the leading constitutional abolitionists prior to being named to the Chief Justice by Abraham Lincoln. He knew the people who wrote the Fourteenth Amendment. He was there for the whole thing, and when he tells us that the -- about the meaning in 1869, he may have a little bit more insight into what it meant than those of us here on this stage. And Chief Justice Chase was not alone.
Thaddeus Stevens—congressman from Pennsylvania—who introduced the Fourteenth Amendment on the floor of the House of Representatives, said the same thing. He said that it requires enforcement legislation, and he went on to say that in the next -- when the Fourteenth Amendment becomes law—and he’s specifically talking here about Section Three—Congress will pass enforcing legislation in our next session. So Thaddeus Stevens certainly counts -- we call him, I think, one of the originals—for those of us who are originalists.
And Lyman Trumbull, the Chair of the Judiciary Committee at the time, said exactly the same thing. So he says -- so Trumbull says, “Some statute is plainly, plainly necessary to enforce this constitutional provision.” And he wasn’t just talking through his hat. He then proposes enforcement legislation pursuant to Section Five of the Fourteenth Amendment to enforce Section Three. It passed. It was proposed in 1869. It was passed in 1870 in a bill with the official name of “An Act to Enforce the Fourteenth Amendment.”
Section Fourteen, which is now codified in 5 U.S.C. §14a, is Congress’s mechanism for enforcing Section Three of the Fourteenth Amendment. It provides -- let me read it. It’s pretty short. “Whenever any person holds office, except as a member of Congress or some state legislature, contrary to the provision of the Third Section of the Fourteenth article of Amendment of the Constitution, the district attorney for the district in which such person holds office shall proceed against him by writ of quo warranto”—footnote: quo warranto is an ancient common law writ used to challenge whether a person is entitled to hold a public office -- so he proceeds, “by quo warranto, returnable to the District Court of the United States in such district and prosecute the same to the removal of such person from office.”
So Congress is not left -- did not leave us in doubt about how Section Three should be enforced. They passed a statute. This is the way it is supposed to be enforced. The idea that miscellaneous, partisan state officials are in charge of deciding who can become president of the United States has some real structural federalism problems to it that Congress anticipated and legislated against. So I’m kind of waiting for the quo warranto, but I’m going to wait a long time because quo warranto doesn’t apply and this statute doesn’t apply until a person seeks to hold office.
It doesn’t take place during the election time, and that’s because—and I really wish we would just keep the language up here. Please, let’s just keep it because I want to point -- I want to gesture at it because the text -- so note what it says. It says, “No person shall hold any office.” It does not say, “No person shall run for any office.” It doesn’t say, “No person shall be elected to any office.” An earlier version did say that.
This is what we’ve got. It only applies to people holding office. So when the Minnesota Supreme Court two days ago said, “There’s nothing in state law that permits us to knock people off the ballot when they’re not qualified,” they were right, as a matter of state law. And there’s nothing in Section Three that tells anybody anywhere that they have authority to keep somebody from running for office. Wait until Donald Trump is elected and then we can think about this.
And so, now, I wasn’t very interested in application to the presidency because I think no court is really going to go there. But this is pay dirt. Right? Think about the U.S. Supreme Court. They do not want to decide this case. That is, they do not want to decide whether Donald Trump engaged in an insurrection. What will they be happy to say? They’ll be happy to say, “It’s not ripe because until he’s elected, there’s no -- this constitutional provision doesn’t apply.” I can really imagine Chief Justice Roberts writing a four paragraph opinion to that effect, and I predict he will. And also, I can imagine him saying, “Well, we don’t know. Does it require enforcement legislation or not?” Well, Will Baude makes some pretty persuasive arguments, but there are pretty good arguments the other way too.
But what we do have is precedent from the Chief Justice in 1869, saying, “We require enforcement legislation.” We have the sponsor of the Fourteenth Amendment in the House of Representatives saying, “We require enforcement legislation.” We have the Senate Judiciary Committee Chair, at the time, saying, “We need enforcement legislation.” And we have Congress in 1870, passing enforcement legislation. Let’s follow the enforcement legislation and not all these, sort of, made up contrivances to bring the case before us prematurely. I can so easily see them saying that because it answers the case without deciding this explosive political question of whether Donald Trump engaged in an insurrection, a question on which 45 percent of the people will be absolutely infuriated whichever way they go. The Court isn’t -- I think the Court is very unlikely to go there.
So now let’s get to -- the first point is the amendment only applies after someone’s already trying to hold an office. It doesn’t apply to elections at all. So let’s talk about what is an insurrection and then talk about what it means to engage in an insurrection. So could we have the next slide up here? So what is an insurrection? Both insurrection and rebellion are quite demanding terms. These are not -- these are not -- it’s not a low bar; it’s a high bar.
What we know is that the Civil War was an insurrection or a rebellion—probably both because that’s what the whole thing was about. And we know that it was things like -- so members of Congress, at the time, adopting this, describe the reach and the future as being for actions which are essentially the same -- of the same level as the Civil War. So that’s what we’re looking at. To say that January 6 was like the U.S. Civil War is, I think, a pretty tough pill to swallow.
But note also how broad that definition is. That would apply to every riot we have seen. Think about Seattle. It was a concerted, forcible resistance. They occupied a whole square mile, they prevented the enforcement of the law in part of the city, and riots are unfortunately a common event in American history. According to Will, every time a politician says something to encourage and support these -- a riot, they are going to be subject to being disqualified from running again, again, by their political opponents who happen to be holding office.
And then did Donald Trump engage? Well, let’s look at the slide before -- and I’m sorry. Give me 30 seconds more.
Prof. Julia Mahoney: Thirty seconds.
Prof. Michael McConnell: And then I’ll yield more time to Will. But note at the text, it applies to two different things. It applies to engaging in the rebellion or the insurrection or giving aid and comfort to the enemies of the United States. Aid and comfort to enemies of the United States comes from the Treason Clause. Enemies of the United States means people who are making war on the United States. That’s what it means. And so, when there’s an actual war, giving aid and comfort counts.
If it’s only an insurrection, you actually have to have engaged in it. I do not think making a speech, asking your supporters to march to the Congress with no advocacy of violence, constitutes that. And I do not think doing nothing -- reprehensible though President Trump’s behavior may have been that afternoon, wandering around the White House not doing anything is not engaging in an insurrection.
Prof. Julia Mahoney: All right. Thank you very much. First question. This is an attempt - - two great presentations. First question: I am trying very hard to look at what separates these two. As I say, you agree on a lot. And one of the things where I think there is the greatest chasm is to what extent and in what ways courts should take into account prudential considerations.
Professor Baude, you suggest that Salmon Chase is, well, off the reservation, and I can’t quite figure out how much he can engage in just thinking about some prudential considerations. I understand your criticism to be that he’s putting enormous weight on practical consequences and neglecting other modalities of constitutional interpretation. And I think you make a number of fair points.
Professor McConnell, you suggest perhaps that judges should be extremely attentive to the consequences, practically speaking, of what their actions are. And I would like to hear more from each of you about precisely what is legitimate for judges to take into account when making prudential calls. So first, Professor Baude.
Prof. William Baude: Okay. Sure. I don’t think it’s illegitimate to consider the consequences in interpretation. Even James Madison—the original original—said that where provision is ambiguous, it can be tried by its consequences, but where it’s clear, you should enforce it. So I think one key step is not to overuse prudential arguments when the text is clear but we don’t like it. Maybe the more ambiguous it is, the more it’s okay. But I think the more important thing is not to confuse our view of what is good with what the amendment is trying to achieve. So the reason we care about the consequences is because the people who enacted the Constitution were trying to do things in the world, and we don’t want to read the Constitution in a sort of robotic or artificial fashion.
But to take the constitutional provision we don’t like and try to sort of whittle it down to size—not a coincidence, by the way, that Chief Justice Chase opposed Section Three of the Fourteenth Amendment; thought it was a bad constitutional provision—to use your own disagreement with the provision as a way to narrow it, I think, is a big mistake. And Section Three was trying to accomplish something big and important and something dangerous, but it was trying to accomplish something.
Prof. Julia Mahoney: Thank you. Professor McConnell.
Prof. Michael McConnell: I pretty much agree with that, but what was Chase doing? I don’t think he was just saying bad consequences. I think he was saying what the drafters of Section Three must have meant because they didn’t intend to throw this country into abysses of conflict over narrow cases, and we know that from people during the debates over Section Three. So here’s a quote. “This house by a very decided expression of opinion determined that it would strictly construe the rule that is in the Section Three.”
And there were four cases in the two years, during which Section Three was in -- it was in operation before Congress lifted -- and there were four cases of people elected to Congress whose entitlement to serve was challenged on grounds of Section Three. One of them was excluded. He had led troops to battle for the Confederacy. Three others were not excluded. That is to say Congress -- the House of Representatives voted that they had not violated Section Three. All of them had supported secession by voting for it and speaking for it in their states, but they had not themselves taken up arms, and that seems to have been the distinction for them.
So I don’t grasp at just any old prudential considerations. I want to know what were -- what were the -- how did the people at the time envision this to work as a practical matter?
Prof. Julia Mahoney: Thank you.
Prof. William Baude: I just wanted to correct the record, I think, on one thing, which is that when Thaddeus Stevens and the framers of the Fourteenth Amendment were talking about enforcement legislation, a lot of the time they were actually talking about a different draft of Section Three. So Section Three starts out in the House as a bill to strip complete voting rights from all members of the Confederacy, regardless of office holding, and that’s the provision Thaddeus Stevens says is going to need enforcement legislation because he’s envisioning voting rights legislation. And then when Congress does pass legislation, it’s only after Griffin’s Case—after Chief Justice Chase has stopped the amendment from being enforced. Until then, there were state lawsuits in North Carolina and other places, enforcing Section Three. So I’m not sure we should give Chase credit for defining the actual original meaning of Section Three, but if he was, then he’d be entitled to more respect.
Prof. Julia Mahoney: Thank you. Next question. I’d like to focus on the final sentence of Section Three—if we can get the language up—and the one that says, “But Congress may, by a vote of two-thirds of each House, remove such disability.” And in determining their duties under Section Three, how should state and federal election officials and other constitutional actors take into account the possibility that Congress will act to remove a disability?
Professor McConnell emphasized—I think correctly—that the first sentence of Section Three says, “hold any office,” not run for, not be elected to, not be appointed to, but hold any office. So clearly, anyone thinking about removing someone from a ballot, and so on and so forth, might, at least, think about taking into account the fact that when the time comes for an office to be held, Congress might have acted to remove that disability. So this is very much unlike other potential disabilities. It’s not like not being 35. It’s not like not being natural born. So how does the prudent, faithful, constitutional actor deal with this second sentence?
Prof. William Baude: Well, it’s always possible that any constitutional disability could be lifted by constitutional amendment, which also requires two-thirds of Congress but then the states. But I think this is maybe a case for -- there’s a formalist argument and a prudential argument. So a very formalist argument would say, “Until January 20, 2025, we have no idea if the president is disqualified because at any moment, Congress could grant amnesty, therefore, full steam ahead, and we’ll just wait until 11:58 on inauguration day to figure out whether the president’s entitled to hold office.” That is a reason a state might choose to put a disqualified president on the ballot because you never know. They might become qualified later.
On the other hand, that, it seems to me, is courting chaos and civil war. It seems to me, whatever the scope of this provision, better to figure it out sooner rather than later. Better to figure out when it’s not too late for tens of millions of people to take that into account in making their votes. Better to figure out what insurrection means now rather than until we wait for the next insurrection in Seattle or Washington or anywhere else. So I’m not convinced you have to wait until the last minute and trigger a constitutional civil war.
Prof. Julia Mahoney: Yes. But it’s not a fanciful idea because, of course, Congress has acted before to remove disabilities. Professor McConnell.
Prof. Michael McConnell: My answer is not at all. So Congress might lift the disability, but until it does it, it’s there. Give it full speed. I don’t believe that’s sweeping and broad, but the fact that Congress might lift it, I think, is completely irrelevant to what we say today. I would point out—just to pull Will’s leg a little big—that he just made a prudential argument for reading the amendment to say something other than what it does. It says, “hold.”
If I were writing such an amendment, I think I would agree with Will. It really is not a good thing to wait until somebody’s already been elected. It is not a nice prospect, but the word is there, it’s completely unambiguous, and the fact that Will and I might write the amendment a different way surely doesn’t mean that it means something other than what it obviously says.
Prof. Julia Mahoney: Thank you. My final question, before I turn this over to the audience, concerns the meaning of officer. Professor McConnell, you spoke some about the presidency as an office, but there is—thinking about arguments that are already gaining traction, at least judging from my reading on the internet—this idea that President Trump as an officer of the United States is a very, very important one. And there is plenty of argument—or, at least, one can, at least, get over the plausibility hurdle, and I think many have—that the president is not an officer, that, in effect, officers refer to appointments, appointed officials, not elected ones. We can, of course, look at parts of Article II Section Three, which speak of the president commissioning officers, all that. You know all that. In many, many provisions one could certainly begin to make an argument that President Trump was not an officer. What is your response?
Prof. Michael McConnell: Well, I think as a very strictly textual matter that that’s probably right. There is a lot of evidence that officer always means appointed officer. Note that the other people listed, members of Congress, state legislatures, electors, all are elected officers so -- and then it says, “and officers.” And there’s extremely sparse reference to the presidency during the entire course of the Section Three debates. There is one exchange where Reverdy Johnson says he thought it did not apply to the president. Someone else makes the argument to him the other way and he folds. I think that’s a really good argument that maybe it does apply to the president.
But there’s one further textual point which has to do -- if we could have -- I wish we could just keep the language -- nobody needs to see my face.
Prof. Michael McConnell: So note that it says, “Anyone who, having previously taken an oath to support the Constitution of the United States,” -- I’m going to make the pickiest legal argument you have ever heard in your life. There are two oaths. There is an Article VI oath, which, by the way, is 5 U.S.C. § 16, right after -- it’s literally right upon the two provisions of enforcement that I was talking about. It prescribes the oath for everybody other than the president, and they have an -- they swear an oath to defend and support the Constitution.
The president’s oath is specified in Article II. He promises to protect and defend the Constitution. He does not promise to support the Constitution. I told you it was a picky argument.
Prof. Michael McConnell: But if you’re trying to exclude the president, you might well frame Section Three this way. It’s an oath to support the Constitution. The president does not make such an oath.
Prof. Julia Mahoney: All right. With that, we have questions from our audience. So again, please keep questions short.
Josh Blackman: Yes. Will, the same question as Michael. Will, same question Julia asked Michael.
Prof. William Baude: Sorry. I --
Josh Blackman: Same question Michael answered. Maybe you can answer that question.
Prof. Julia Mahoney: Oh, I’m sorry.
Prof. Michael McConnell: This, by the way, if you don’t know him, is Josh Blackman, the only person on the planet who’s written a longer article about Section Three than Will has.
Prof. William Baude: This is the president question? Is that the --
Prof. Julia Mahoney: Yes. Sorry.
Prof. William Baude: Okay. Sorry. Yeah. I do think - -
Prof. Julia Mahoney: I neglected you.
Prof. William Baude: I do think that the president’s oath to preserve and protect the Constitution is an oath to support the Constitution. I think it’s a more detailed oath to support the Constitution, and I think Section Three just parallels the Oath Clause. So everybody who takes an oath that’s covered by the Constitution is covered by Section Three. I think the president’s oath is covered by the Constitution. Article II itself refers to the presidency as an office.
I actually think there’s no real dispute. The president is an officer who holds an office. The best argument to the contrary is that it’s not an office of the United States or under the United States. It’s an argument from prepositions, which I think is maybe even pickier than Michael’s argument, and it’s the argument that was discussed and refuted when Section Three was drafted. So I don’t know why we think we know better than them.
Josh Blackman: All right.
Prof. Julia Mahoney: Thank you.
Josh Blackman: So my question is actually about this panel in general. You agree a lot on a lot of things, and I think it was a mistake to have someone up there who perhaps disagrees with you. So my question is debate. I challenge both of you to debate. Stanford, Chicago, will you debate me? That’s the question.
Prof. William Baude: I’ll see you in San Diego, Josh.
Josh Blackman: I’ll take that as a no.
Prof. Michael McConnell: If we can do it in the hometown of your co-author, so I’d like a trip to Ireland.
Josh Blackman: Dublin’s lovely this time of year.
Prof. Julia Mahoney: All right. Next.
Michael Rosman: Michael Rosman with the Center for Individual Rights. I have two quick questions for Will. I believe I have taken oaths to defend or protect or support the Constitution every time I became a member of a bar, and I’m told that I’m an officer of the court. Does that make me a judicial officer of a state? And the second question is let’s say -- I’m not, but let’s say I’m a former DA, left, going into private practice, and now I was asked to defend one of the insurrectionists from January 6, and I give them a little break on the fee because that person is poor. Have I given aid or comfort to the enemies of the Constitution?
Prof. Will Baude: I think the answer to both questions is no. I do think when we call lawyers officers of the court, I think that’s a little bit self-serving. I don’t think we’re -- the real officers of the court are people --
Michael Rosman: I don’t say it. They tell me that.
Prof. William Baude: It’s very nice of them. [Laughter] We haven’t argued here about whether, technically, aid or comfort extends to all people who commit insurrection or rebellion, whether that’s the definition of enemies or whether enemies itself has a narrower compass. I think either way, doing something like providing constitutionally required legal representation would not qualify as aid or comfort. And I actually agree with Michael that we should be careful not to read aid or comfort too broadly. I think we should read it the way it was when it was enacted.
Prof. Michael McConnell: I do not believe performing your legal function is engaging in an insurrection. And aid and comfort does not apply unless you’re aiding enemies of the United States who are people who are making war against the United States. Now if we’re talking about a Guantanamo situation, we might have more of a problem.
Prof. Julia Mahoney: Next.
Questioner 3: I was curious as to the textual interpretation of the word ‘hold’ in Professor McConnell’s interpretation of that, whether that textual interpretation supersedes the nature of a quo warranto action as a civil action and the concurrent provisions, so to speak, in Article III of pre-enforcement actions. So if the injuries—for lack of a better term—is that person hold -- the second that person holds office, why wouldn’t Article III pre-enforcement principles apply to a quo warranto action?
Prof. William Baude: I take it a version of the argument is, it’s true, the Constitution says you can’t hold office—that’s its only bar—but it doesn’t tell us when we can adjudicate the holding question in advance. The Constitution says you can’t be killed without due process, but it doesn’t mean you have to wait until you’re dead before you sue and try to get a ‘writ quo resurrectio’ to come back to life.
Prof. William Baude: Right? We can say this is about to happen, it would be unconstitutional if it were to happen, and we want to stop it. And that’s, I think, the right way to do it, rather than to try to misread the word ‘hold’. I will say I think the quo warranto provision is no longer in the U.S. Code. I think it disappeared in 1948 in the positive law codification. So I don’t think it’s there anymore.
Prof. Michael McConnell: Actually, it’s -- I’ve spent some time trying to figure this -- I don’t know the answer to that. I can’t find the repeal. You say in your article that it was repealed. I can’t find it.
Prof. William Baude: So in 1948, Congress took the entire judicial code and repassed it and then said, “Anything that we left out is hereby excluded by implication.” So I believe that was where they repealed it.
Prof. Michael McConnell: And the Library of Congress issued a list of provisions that it said are permanent provisions and still exist, even though they weren’t recodified. I don’t know what the legal standing is of that. And it is right there in U.S. Code. Look it up.
Prof. Julia Mahoney: Next question.
Dan McLoughlin: Hi. Dan McLoughlin from National Review. I would say that I’ve written at length on this issue but not at law professor length. My question for Professor Baude though -- it seems to me that if you do look at those cases from the 1860s, where Congress and the Supreme Court of North Carolina did or didn’t exclude people from office, there is a pretty clear standard there that it’s -- pre-insurrection incitement is not enough, that there has to be something active.
I guess my concern, having listened to you today and having read your article, is that it seems to me that you’re arguments for saying that Trump engaged in insurrection are interesting, they’re creative, but I don’t see the originalist basis for any of them in anything that happened or was considered at the time, including Lincoln describing secession itself as, essentially, a form of insurrection. It seems to me that if inaction -- in that face, maybe James Buchanan should also have been ineligible to ever serve again. But I don’t -- that seems to me a big leap, and I’m just wondering what originalist basis there is, really, for any of this extension of the written principles of the amendment.
Prof. Julia Mahoney: Professor Baude.
Prof. William Baude: So it might be the best evidence comes in Hinds’ Precedents, which is where they summarize the exclusion debates, both of the -- after Section Three is passed, the folks that Professor McConnell had just mentioned, but also a series of debates of whether to exclude people under the Ironclad Oath, which they see as largely paralleling Section Three. And that includes some cases of exclusion for speech.
Now it’s true it’s speech while the war is ongoing, so it’s distinguishable, but I’m not sure that it’s entirely distinguishable. And it includes exclusions of somebody named Philip Thomas who was excluded largely for his inactions, for his failure to stop his son from enlisting with the Confederacy, and for his decision to resign his position in Buchanan’s cabinet. I think those are the best evidence we have. I admit there are gaps between that and the questions we face today.
In an ideal world, we’d also be able to get more evidence. So it could well be that there’s some more benign explanation for President Trump’s behavior than the explanations we’ve so far got in the public record. It could well be that he could testify in a proceeding and explain why he did the things he did. It could well be his testimony would lead us to conclude something else, and I’d be happy to hear more about that.
Prof. Julia Mahoney: Thank you.
Prof. Michael McConnell: So the problem with that is that the Ironclad Oath went beyond the terms of Section Three, and so it disqualified people -- for example, anyone who held office in the Confederacy would flunk -- at any time, would flunk the Ironclad Oath. And that is plainly inconsistent with the way Section Three was interpreted. So I think to say—as Will just did—that they equated the two, Section Three and the Ironclad Oath, is just not -- I just think that that is a leap that we can’t make. The two are quite different.
And, by the way, it’s true, we don’t yet know. There could be new evidence about January 6. But it could go the other way too: maybe more benign explanations. I doubt it. But more malign explanations: we could find out that Donald Trump really did call the Proud Boys and tell them to bring arms and do other things. I mean, he might have. And it is true also that a number of the January 6 defendants, as a defense to the action, claimed that they believed that they were there in obedience to a call from the Commander in Chief. So they may not have -- Trump may not have actually issued such a call, but they may have heard it.
Prof. Julia Mahoney: So thank you. Next question.
Questioner 5: I have a question, but I wanted to defer to the folks at a mic in the back of the room as well.
Questioner 6: Hi. I wanted to ask, do we have any concern about allowing anybody, state officials in a conclusory fashion to determine facts as to very serious crimes? So whichever way the legal definition of insurrection or rebellion goes, it’s quite a different determination to make, such as somebody’s residence, their age, and even those things, I think -- if, for example, somebody was disputing their place of residence, they would be able to go and say, “Well, actually, I did live here for the right number of years, and I am a citizen, and I should be able to be on the ballot and qualify.” So is there a specific issue in this being a different kind of qualification because it surrounds a very serious crime without any legal process having occurred necessarily to just have one official say, “Well, we think what you did is an insurrection. You were never charged, you were never convicted, and so we’re keeping you off.”
Prof. Julia Mahoney: Professor Baude.
Prof. William Baude: Let’s just say there’s tons of legal process. Right? The courts are full of legal process with Section Three now, where they’re hearing and adjudicating these claims. There’s a multi-day trial in Colorado. I take the point that figuring out whether somebody engaged in insurrection feels more weighty than figuring out whether they’re lying about living in Maryland. But both of them are constitutional qualifications, so there’s got to be some place to figure it out. And if the states want to take on that role, I think that’s a legitimate thing to do.
Prof. Julia Mahoney: Professor McConnell.
Prof. Michael McConnell: I think it’s a serious problem, and if it’s in court, there can be a taking of evidence and so forth. But what if the state secretary of state simply throws them -- the person off the ballot without any due process at all or maybe with some sort of executive fact finding? Will, in his paper, says that when there’s judicial review of such a decision, that the court should defer to any -- to the secretary of state if it’s within the range of reasonableness. So I think we are actually facing the very problem you describe. Note that when Lyman Trumbull and the Congress passed enforcement legislation, they had the district attorneys go to court and prove the quo warranto proceeding, which will entail all the due process that you would expect and want.
Prof. Julia Mahoney: Thank you. Next question.
Trevor Risell (sp): My name is Trevor Risell. Thank you both for your comments. My question is for Professor Baude. If President Trump can be deemed to have engaged in insurrection by omission—failing to take steps to address what happened at the Capitol—can President Biden be deemed to have engaged in insurrection for failing to address what’s happening on the southern border—concerted group of people acting in open defiance of law, often armed and acting violently?
Prof. William Baude: I don’t think so, but I don’t think that what’s happening at the southern border rises to the level of an insurrection, and I don’t think that the best reading of the facts is that President Biden is engaging in that insurrection. I will say I have received a lot of emails with variations of that question --
Prof. William Baude: -- some suggesting that President Biden is, in fact, complicit in smuggling Chinese soldiers through the border as part of an attempt at an inside job to wage Chinese war against the United States. I think if that is true, that would be very serious, and he should not be president.
Prof. Julia Mahoney: Professor McConnell.
Prof. Michael McConnell: I think those folks are sneaking across the border illegally to take advantage of the liberty and prosperity of this great Republic, rather than committing insurrection to try to tear it down.
Prof. Julia Mahoney: Next question.
Jeff Bishop: Jeff Bishop. A couple of questions, mostly to some points that Professor McConnell had raised: one about the enforcement clause and one about the distinction of holding office versus running for it. As you know, the Fourteenth amendment is one of six or seven—depending on whether you count the repealed ones—amendments that have language that say Congress may enforce this through appropriate legislation or something to that effect. Is there any precedent, though, for saying that any other part of the Constitution, including other sections of the Fourteenth, don’t have effect because Congress didn’t act on this particular thing? For example, Obergefell: they ruled that straight-only marriage violated equal protection. Could they have or should they have ruled, “Oh, well, maybe it does or maybe it doesn’t, but Congress hasn’t acted to enforce this, and so we’re not going to hear the case at all?
Prof. Michael McConnell: So I think the general rule at least until very modern times was that things in the Constitution could be invoked as a defense, but that they did not constitute a cause of action in which you can go to court and sue. That is true of the rest of the Fourteenth Amendment. Don’t forget that the Fourteenth Amendment is, in fact, enforced, for the most part, against states, state officers, under Section 1983. So you don’t just go into court and say -- Obergefell, for example, was a 1983 case, so it was not one brought without any congressional authority.
The tricky thing is as the Supreme Court has held that the Fourteenth Amendment also applies to the federal government—which they never expected, and it doesn’t, but they can -- the Supreme Court can say whatever they want—they then had to come make up an enforcement scheme through the Bivens doctrine. And, I mean, this is -- I assume everybody in civil procedure debates the illogic of that.
Prof. Julia Mahoney: Professor Baude, anything to add?
Prof. William Baude: I would just add that in these cases, people are using state law causes of action, so nobody’s claiming an implied federal cause of action of the Fourteenth Amendment. And I think there’s no dispute that the state can give you a cause of action to comply with the Fourteenth Amendment.
Prof. Julia Mahoney: Yes.
Prof. Michael McConnell: Well, except the people who are suing to try to compel the state secretaries of state to kick Trump off the ballot. They need a cause of action.
Prof. William Baude: But they’re using state law causes of action.
Prof. Julia Mahoney: Final question.
Craig Richardon (sp): Craig Richardson from Colorado. Most of the qualifications for office in the Constitution are fairly objective: age, citizenship. This requires some subjective judgment, and we do have a mechanism for those subjective determinations: the Impeachment Clause. How does this provision -- how is it properly harmonized, textually and mechanically, with that provision of the Constitution?
Prof. William Baude: There was an impeachment proceeding involving the insurrection on January 6 that members of the Senate concluded was jurisdictionally barred because the president had left office. That seems wrong, I think, to both of us—I think both of us had written about that. And had they decided otherwise and chosen that as the time to adjudicate this, that seems like that would’ve been a very healthy thing to do for the country. It’s a shame it didn’t happen.
Prof. Julia Mahoney: Professor McConnell. Final word.
Prof. Michael McConnell: So I’m not -- I didn’t quite catch all of that but - - so here’s the way I think it basically works. State officers are governed by state law. Congress and Senate are governed by Article I, which is why, by the way, Lyman Trumbull’s bill excludes them from quo warranto proceedings. Each House is the judge of the qualifications of its own members, so House and Senate are governed by that. Appointed officials, including judges, it’s enforced through the advice and consent proceedings of the Senate. And only the president are we bereft of any possible enforcement.
And it’s a serious problem because at the primary level -- no matter what the states say, the Republican Party convention can nominate whoever they want for president. They’re not governed by that. And then electors are running -- how are we going to say that people running as electors are to be excluded? They’re not insurrectionists. So I don’t see how that’s going to work. I think the only way it really is going to work is that Kamala Harris will be standing there with electoral votes coming in, and she’s going to have a legal opinion from the 24 version of John Eastman telling her that she’s entitled not to recognize electoral votes in favor of Donald Trump. And we’ve seen this movie before.
Prof. Julia Mahoney: Thank you all. Thank you both for excellent and substantive comments. Thank you.
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