In recent weeks, a push has gained steam to eliminate former President Donald Trump from the presidential ballot in various states. While recent efforts have come from Democratic state legislators and some secretaries of state, the most prominent recent push came from a pair of conservative legal scholars.
In a paper published in August and titled “The Sweep and Force of Section Three,” William Baude of the University of Chicago and Michael Stokes Paulsen — both law professors with conservative credentials — argue that due to the language of Section Three of the Fourteenth Amendment, Trump should be ineligible to be president.
Donald Trump and the Eligibility Argument
The authors argue that Trump’s efforts to overturn the result of the 2020 election are covered by that amendment.
“Taken as a whole, these actions represented an effort to prevent the lawful, regular, termination of President Trump’s term of office in accordance with the Constitution. They were an attempt to unlawfully overturn or thwart the lawful outcome of a presidential election and to install, instead, the election loser as president. They constituted a serious attempt to overturn the American constitutional order,” the article said.
However, not everyone is on board with that interpretation. And while conservative law professors took the side that Trump should be disqualified, one liberal legal scholar is saying the opposite.
Writing in Slate this week, Harvard law professor Lawrence Lessig calls the Fourteenth Amendment argument “a terrible plan to neutralize Trump.” Lessig is a liberal scholar who has pushed to overturn the Citizens United decision.
Lessig is not to be confused with Michael Lustig, a conservative legal scholar who has endorsed the Fourteenth Amendment argument.
“The argument is elegant and impressive. But it would be flatly wrong for any court — especially the Supreme Court — to embrace it,” Lessig writes. He notes that the Fourteenth Amendment was passed after the Civil War to prevent former Confederate rebels from serving in federal office.
“That section essayed — at the very least — to disqualify from federal office the Civil War rebels and, prospectively, anyone who tried to do the same thing again,” he writes.
Distilling the Argument with Hypotheticals
To protest against the argument for disqualifying Trump, Lessig lays out a hypothetical. If Mike Pence had done what John Eastman asked and refused to count the Biden electoral votes, and then the Supreme Court declined to overturn that, there would likely have been angry protests against that result.
“What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide “insurrectionists” from protesters? If 50,000 gathered on Capitol Hill to protest the Pence coup, would that render the protesters insurrectionists under Section 3? Would they be acting to overthrow a government?” Lessig writes.
“Or would it require violence for resistance to become a violation of Section 3? And if so, how much violence? If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn’t break in be disqualified? Or, more pointedly, would those who rallied the protesters to resist the Pence coup then be disqualified from future office?”
Therefore, the Fourteenth Amendment argument could be used in the future against people protesting against a legitimately stolen election, as opposed to the one that wasn’t actually stolen. Lessig argues that what the January 6 rioters and their backers did was probably a crime, but was not “rebellion.”
There has been some pushback to Lessig’s argument.
“This is silly. If Pence declared Trump the winner, SCOTUS refused to intervene, and Trump’s coup had succeeded, U.S. democracy would be over,” journalist Radley Balko wrote on X, formerly Twitter. “Trumpists invoking the 14th Amen. to bar Trump’s critics from holding office would be the least of our concerns.”
Author Expertise and Experience
Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Stephen has authored thousands of articles over the years that focus on politics, technology, and the economy for over a decade. Follow him on X (formerly Twitter) at @StephenSilver, and subscribe to his Substack newsletter.