The Volokh Conspiracy
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New Article: Forcibly Sweeping Section 3 Up To The Supreme Court
My personal account of the Section 3 litigation.
We are now 100 days into the Trump Administration. As best as I can tell, there has been zero litigation over whether Section 3 of the Fourteenth Amendment disqualifies Trump from the presidency. During the Joint Session of Congress on January 6, 2025, there were zero objections raised based on Section 3. Yet, it is hard to believe that about fifteen months ago, the Supreme Court was being asked to disqualify Trump from the ballot.
As regular readers of this blog will recall, Seth Barrett Tillman and I were actively engaged in the process to disqualify Trump between 2021 and 2024. I discuss many of the things we did during this time in a new article for the Mississippi Law Journal's symposium issue on the Fourteenth Amendment.
Here is the abstract of Forcibly Sweeping Section 3 Up To The Supreme Court:
In the wake of January 6, 2021 a two-year lawfare campaign was waged to prevent Donald Trump from being re-elected president. That movement reached its pinnacle on December 19, 2023, when the Colorado Supreme Court ruled that Section 3 of the Fourteenth Amendment disqualified Donald Trump from the presidency. But less than three months later, on March 3, 2024, the United States Supreme Court unanimously reversed the state court. President Trump was re-elected, and certified on January 6, 2025.
This Article is not intended to explain the nuances of Section 3, summarize all of the litigation, or even analyze how the Supreme Court decided the case. Rather, this Article is somewhat personal in nature. It tells my own experience in the Section 3 litigation, from January 6, 2021, through January 6, 2025. This Article, I hope, will encapsulate the role that I played in this process with my friend and colleague Seth Barrett Tillman.
Seth also contributed to this symposium issue. His article is titled, Some Personal Reflections on the Recent Litigation Involving Section Three of the Fourteenth Amendment. Here is a snippet from the introduction:
What follows is not specifically an attempt to reargue the merits of disputes between my interlocutors and myself [which were debated during the recent Section 3 ballot-access Trump-related cases], but an attempt to explain my personal experience in attempting to debate a set of intellectual points—points which I had developed since circa 2007 and refined in cooperation with Professor Blackman since 2017. Although I make no claim to objectivity among competing views, I hope to show that traditional academic and professional norms remain worthy aspirational goals, even where unmet.
Looking back, this paper is not so much about Section 3 of Amendment XIV and recent ballot-access Trump-related litigation. Rather, it is more about the decline in civility and aspirational standards within the polity, the courts, and legal academia.
And another snippet from the conclusion:
It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of discussing the surrender of Lee's Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation's former enemy soldiers. Celebrations for Grant's soldiers came only later—not while Lee's soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.
I do not think our present and future is or will be as difficult as was Grant and Lee's. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal judges, state judges, and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform and renewal.
Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engage in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun?
Often Seth and I publish together, but for this symposium, it was useful to publish separately. The Section 3 litigation is not something we will soon forget, even if others would rather not recall what they tried to do.
