"Fast-forward a century and a half. The events surrounding efforts to overturn the result of the presidential election of 2020 have sparked renewed scholarly, judicial, and political interest in Section 3 of the Fourteenth Amendment," note Baude and Paulsen, both active members of the right-wing Federalist Society. "Several of the people involved in these events—most notably the defeated president, Donald Trump—had previously taken oaths to support the Constitution."
"If they engaged in or gave aid and comfort to an insurrection against the constitutional government," they add, "Section 3 would appear to bar them from holding office again."
Trump, the frontrunner in the 2024 Republican presidential primary, is currently facing a number of felony charges stemming from his role in attempting to overturn the 2020 presidential election and inciting the January 6, 2021 insurrection, including conspiracy to defraud the United States and "conspiracy against the right to vote and to have one's vote counted."
Special Counsel Jack Smith, who laid out the charges last week in a 45-page indictment, has proposed a January 2, 2024 trial date.
But legal experts and historians have argued that Trump is disqualified for office under Section 3 whether or not he is convicted.
The clause states 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."
Only a two-thirds vote by both chambers of Congress can lift the disqualification.
"Trump is disqualified from holding any public office, including the office of the president, under Section 3 of the Fourteenth Amendment."
In their new paper, Baude and Paulsen write that Section 3 of the 14th Amendment—known as the insurrection clause—is "self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress."
"It can and should be enforced by every official, state or federal, who judges qualifications," Baude and Paulsen argue, rejecting the notion that the First Amendment shields those who have engaged in or incited insurrection from disqualification under Section 3.
The clause, the pair add, "covers a broad range of former offices, including the presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election."
John Bonifaz, co-founder and president of Free Speech for People, called the new paper a "must-read for every secretary of state" and "chief election official in the country."
"As this article makes clear, they must follow the mandate of 14.3 [and] bar Trump from the ballot," Bonifaz wrote. "If they do not, we will sue."
Free Speech for People is one of several advocacy groups preparing to take legal action if Trump is not disqualified.
Citizens for Responsibility and Ethics in Washington argued in a report that "overwhelming evidence establishes that President Trump was the central cause of and a participant in the insurrection. Because of that, Trump is disqualified from holding any public office, including the office of the president, under Section 3 of the Fourteenth Amendment."
Last September, a New Mexico judge ordered the removal of a county commissioner who took part in the January 6 attack on the U.S. Capitol. The decision marked the first time since 1869 that a court disqualified a public official under Section 3 of the 14th Amendment.
In an interview with The New York Times on Thursday, Paulsen suggested the new paper could bolster "a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide."
Baude, the paper's other co-author, summarized the pair's conclusion to the Times: "Donald Trump cannot be president—cannot run for president, cannot become president, cannot hold office—unless two-thirds of Congress decides to grant him amnesty for his conduct on January 6."
