The Volokh Conspiracy
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My New Bulwark Article on Trump and Section 3 of the 14th Amendment
The article makes the case for disqualification on moral and pragmatic grounds, as well as legal ones.
Today, The Bulwark published my article making the case for disqualifying Trump from future public office under Section 3 of the 14th Amendment. I address a variety of issues, including moral and pragmatic considerations, as well as purely legal ones. Here's an excerpt from the introduction:
The effort underway in several states to use Section 3 of the Fourteenth Amendment to disqualify Donald Trump from becoming president again raises a variety of legal, moral, and political issues. But fundamentally it comes down to this: liberal democracies often have good reason to bar from positions of vast power people whose track record shows them to be a threat to democracy itself, or to basic liberal values. Section 3—originally enacted to bar former Confederates in the aftermath of the Civil War—is a useful tool towards that end. And Trump epitomizes the sort of person who should be barred, for both legal and pragmatic reasons.
Section 3 bans anyone from state or federal office who previously held certain public offices and "engaged in insurrection" against the United States or gave "aid or comfort to the enemies thereof." Donald Trump is disqualified under Section 3 because of his attempt to use force and fraud to overturn the results of 2020 election, and especially because of his role in instigating the January 6, 2021 attack on the Capitol.
A president who tried to use force and fraud to stay in power after losing an election should not be allowed wield the power of office ever again. And we need not and should not rely on the democratic process alone to combat such dangers.
Trump should not be barred from the ballot if there are legal reasons why Section 3 cannot be used against him. But the legal arguments against disqualification are ultimately unsound, and most are very weak. The same goes for pragmatic arguments against disqualification.
I addressed some of the issues related to democratic theory and slippery slope concerns in greater detail in a recent Lawfare article.