The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few weeks ago I linked to a new draft article with Michael Stokes Paulsen, The Sweep and Force of Section Three, forthcoming in the Pennsylvania Law Review. The article argues that Section Three of the Fourteenth Amendment has continuing, self-executing, legal force and a relatively broad substantive sweep, and that among other things it disqualifies Donald Trump from future office because of his participation in the attempted overthrow of the 2020 presidential election. Since then Prof. Paulsen and I have generally been declining media interviews and the like, preferring to let the article speak for itself.
But we recently made an exception for a long conversation with my former professor, and Paulsen's former law-school roommate, Akhil Amar. In two episodes totaling about three hours we talk about many aspects of the argument about Section Three, including various issues of federal jurisdiction, congressional power over the electoral count, our reactions to the recent blog post here by our friend Professor Michael McConnell, and more. The two episodes are linked below.
In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, and in this episode they respond for the first time to some of the critiques, explore the implications of their work, and in doing so, they bring an integrity to our civic conversation. This is an important discussion of important issues, by real experts.
We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated—and importantly, who would be the final authority? Along the way we enter the Fed Courts classroom and look at—what else—the Constitution's voice on these matters, in the 14th amendment, and elsewhere.