Does the Fourteenth Amendment empower state election officials to remove him from the ballot?
. The argument rests on Baude and Paulsen’s interpretation of Section 3 of the Fourteenth Amendment, which states that officeholders, such as the President, who have taken an oath to “support” the Constitution and “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” will no longer hold such an office. Several days ago, Laurence Tribe, a liberal law professor, and J. Michael Luttig, a conservative former judge for the U.S.
What would be an example of something else that would be self-executing in a constitutional amendment? As a practical matter, is that likely to occur? It would depend, I think, on the office of the election official. If it were the secretary of state who was charged with placing individuals on the ballot, then I believe that decision by the duly appointed state official would suffice. But, in all events, whoever makes the qualification or the disqualification decision and whether they make it, that decision will be immediately challenged, probably by the former President himself.
About twenty hours ago, I responded on Twitter to my friends’ concern about the anti-democratic character of the reading of Section 3 that Professor Tribe and I took. I am going to read this into the record, and I would like for you to use it. The Fourteenth Amendment itself, in Section 3, answers the question whether disqualification is “anti-democratic,” declaring that it is not.
The phrase in the amendment is “engaged in,” as in: “shall have engaged in insurrection or rebellion against the same.” McConnell writes, “Section 3 uses the verb ‘engage in,’ which connotes active involvement and not mere support or assistance. Significantly, Section 3 also uses the term ‘give aid and comfort to’—but this is reserved for giving aid and comfort to the ‘enemies’ of the United States, which has historically meant enemies in war.
I am trying to come up with counter-arguments, because I am personally agnostic on this, but I think it makes for an interesting conversation.I agree with you that whether the D.O.J. prosecutes someone is not determinative of what the Constitution means. I just wonder whether the response I described might be appropriate for a state official involved in an intense partisan atmosphere who didn’t feel like he or she wanted to make that call.
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