The Volokh Conspiracy
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Insurrectionists Who Think they are Upholding the Constitution are Still Insurrectionists - and Still Subject to Disqualification Under Section 3 the Fourteenth Amendment
If false beliefs about legality exempt people from Section 3 disqualification, leading Confederates would have been exempt as well.
Some argue that Donald Trump is not subject to disqualification from holding public office under Section 3 the Fourteenth Amendment because Trump and those who attacked the Capitol on January 6, 2021 did not think of themselves as trying to overthrow the government. They instead believed Trump was the true winner of the 2020 election, and they were upholding the Constitution by preventing that victory from being "stolen" from him.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Critics of Section 3 disqualification argue that people who used force and fraud to try to keep Trump in power after he lost the 2020 election were not "engaged in insurrection" because they sincerely believed he had won.
Thus, Harvard law Prof. Larry Lessig writes that "the act they [the people who stormed the Capitol] were engaging in was not rebellion. It was an effort to assure what they wrongly believed was the rightful result." He adds that "the vast majority of them thought not that they were overthrowing a government but that they were pressuring their government to do the right thing—at least as they (wrongly) saw it." Stanford law Professor Michael McConnell made a similar point in our recent televised debate on Trump and Section 3.
In the case of Trump, there is a lot of evidence indicating he did know he had lost the election, and his public statements to the contrary were lies. But, for now, let's set that aside. A false belief that you are acting in accordance with the Constitution does not exempt you from disqualification under Section 3. If it did, many of the leading Confederates who fought against the United States in the Civil War would also be exempt.
Section 3 was enacted in the immediate aftermath of the war, included in the Fourteenth Amendment because many feared that, otherwise, ex-Confederate political leaders might return to power. If there's anyone who is disqualified under Section 3, it's leading Confederates who had held public office before the war.
Yet under the reasoning advanced by Lessig and McConnell, many, perhaps even most, Confederates also weren't insurrectionists! After all, Confederate leaders repeatedly argued they were just exercising a right of secession guaranteed to their states by the Constitution. Far from seeking to violently and illegally overthrow the government, they were simply making use of their legal rights. On this view, violence only resulted because the federal government itself violated the Constitution and illegally tried to force the seceding states to stay in the Union.
Soon-to-be Confederate President Jefferson Davis made this argument in his January 1861 farewell speech to the US Senate, where he defended his state's decision to secede. He contended that, under the Constitution, "the right of a State to secede from the Union" is an "essential attribute of State sovereignty." Confederate Vice President Alexander Stephens made similar claims. After the war, he even wrote a book-length defense of them, which he entitled, A Constitutional View of the Late War Between the States.
As a legal matter, the Confederates actually had a stronger argument than Trump and his supporters did. The Constitution is famously silent on the question of secession. Before the Civil War, there was a longstanding debate among experts over whether states could legally secede or not. By contrast, there was never any plausible basis for thinking that Trump was the true winner of the 2020 election. By the time of January 6, that point had been reinforced by numerous court decisions rejecting his claims, including many written by conservative Republican judges, some of them appointed by Trump himself.
Morally, the Confederates were even worse than Trump. Whether they had a legal right to do so or not, Davis and the others seceded for the deeply evil purpose of perpetuating and extending the horrific institution of slavery. That's worse than Trump's motivation of keeping himself in power. But many of the Confederates genuinely believed they were exercising rights guaranteed by the Constitution, and their legal rationale was much less implausible than Trump's.
In sum, any claim that the January 6 attack and related attempts to keep Trump in power was not a true insurrection because of the perpetrators' subjective beliefs, also implies that many Confederates weren't true insurrectionists, either. They too thought they were merely upholding the rules of the Constitution, exercising a right that document guaranteed.
And this implication of the theory is enough to reject it. If your interpretation of Section 3 suggests that Jefferson Davis was not a true insurrectionist subject to disqualification, that's a strong sign you got something wrong!
Whether the Confederates, Trump, or anyone else engaged in insurrection or aided one turns not on subjective states of mind, but on objective reality. Whatever Trump and the January 6 rioters might have subjectively believed, objectively they were trying to use force and fraud to overthrow the duly elected president and replace him with the man he had defeated.
This point also addresses Lessig's concern that "every leader who might resist a future coup attempt risks disqualifying themselves from serving in any subsequent government." If what they are resisting is a true coup attempt (i.e. - an effort to use force or fraud to install in power someone who was not duly elected), then the resistance is not insurrection against the United States and its legally legitimate government. Facts, not feelings, are determinative here.
There are a number of other arguments against applying Section 3 disqualification to Trump, including some that may be weightier than the one addressed here. I have previously criticized some of them here and here.
