Don’t worry about ‘conservative’ law professors saying the 14th Amendment bars Trump’s presidency

They’re not conservative, and their argument is foolish.

The mainstream media is excited: Two “conservative” law professors argue Trump is barred from running under Section 3 of the Fourteenth Amendment. There are just two problems: These professors aren’t conservative, and their argument is foolish.

The New York Times sets the stage:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

Their apparent argument is that Section 3’s amnesty clause must be applied on a case-by-case basis. Unless a congressional super-majority “pardons” Trump, he’s ineligible for the presidency because he’s an insurrectionist. This is so wrong that I hope you forgive a longer post.

William Baude and Michael Stokes Paulsen are the law professors behind the soon-to-be-published article. Although both identify as “conservative,” they are fanatic Never Trumpers. In 2016, they signed a petition arguing that Trump was too dangerous to be president. His conservative governance didn’t change their opinion.

In 2018, Paulsen demanded Trump’s impeachment, a demand he reiterated after Trump had already left the White House. That same year, he fretted that Trump might ignore Supreme Court rulings, a concern he hasn’t expressed despite Biden’s open disdain for the Supreme Court.

Baude boasted that he voted for Hillary in 2016, even though it would hand the Supreme Court to leftists for a generation.

The professors are so fanatically anti-Trump, they’d seemingly rather have open borders, higher taxes, racialized politics, a “social justice” military, the anti-human climate change agenda, lockdowns, transgender madness, and the entire panoply of constitutional attacks that Democrats support. Significantly, they’re also not originalists.

There are three schools of constitutional analysis. The leftist school is post-modern: “We can interpret the Constitution to mean anything we want it to mean, irrespective of what the Founders intended when they ratified it.” Conservatives opt for textualism (look only at the words, if possible) and originalism (look at words and intent).

Textualism is a fine approach if the words are “Don’t drive through an intersection if the light facing you is red.” But what if the words are that it is “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin”?

That’s from the Civil Rights Act of 1964. In 1964, “sex” meant only the gender binary: It was not about homosexual rights, and it was not about, and could not have been about, the imaginary condition known as “transgenderism.” Yet Justice Neil Gorsuch, a textualist, concluded that because “sex” today includes “sexual orientation” and “gender identification,” those definitions must be read into the act. Transgenderism is now woven into our culture because Gorsuch’s textualism shaded into pure post-modernism.

Originalism says that, when there is ambiguity, you must examine what those who ratified the Constitution and its Amendments intended beyond mere dictionary meanings. Thus, the Second Amendment wasn’t about muskets. It was about ensuring that law-abiding American citizens had the weapons necessary to protect them from all harm, including a tyrannical government.

Baude and Paulsen may identify as originalists, but their Section 3 argument reads like bias-driven textualism.

Section 3 was ratified three years after the Civil War ended to ban from public office those who “engaged in insurrection or rebellion”:

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. But Congress may by a vote of two-thirds of each House, remove such disability. (Emphasis added.)

In 1872, Congress passed the Amnesty Act, holding that “all political disabilities imposed by the third section of the fourteenth article of amendments of the constitution of the United States are hereby removed from all persons whomsoever,” subject to some irrelevant exceptions. Baude and Paulsen apparently argue that the statute applies only to Confederates because the removal of disability applies on a case-by-case basis. The “insurrectionist: Trump needs a supermajority vote in Congress to allow him to run.

The Fourteenth Amendment was a direct response to a four-year-long Civil War that resulted in 600,000 deaths. Section 3 intended to keep that generation out of office. Within four years, the same Congress that ratified Section 3 concluded that the situation had changed sufficiently to remove that bar. The bar was about the Civil War, and the Civil War generation ended it. Simple textualism ignores this legislative intention to the point of arrant nonsense.

Baude and Paulsen also assume that Trump is an insurrectionist. However, even Jack Smith doesn’t have the chutzpah to charge Trump with being guilty of an insurrection under 18 U.S.C. § 2383.

Challenging election outcomes has been a common practice for decades. (It’s a cottage industry among Democrats.) When an election is rife with highly suspicious circumstances, as it was in 2020, the American people deserve a proper accounting.

There’s also increasing evidence that January 6 was a Deep State set-up (see here, too), meaning Trump is the innocent party. None of the unarmed people prosecuted for January 6 activities were charged with insurrection, an implicit acknowledgment that the claimed insurrection (a concept the entire media was mouthing the night of January 6) was a false flag action.

Also, David L. Smith has an intriguing idea. Section 2383, the statute underlying the professors’ argument, cannot apply to a sitting president:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (Emphasis added.)

As long as he was president, Trump was “the authority of the United States”—or at least one aspect of that authority. He was not Joe Schmo in the outer reaches of nowhere or Citadel students firing on Fort Sumter. He was the sitting president and, per the election of 2016 (at the very least), the embodiment of the United States.

It would be very wrong if the Baude-Paulsen argument were to gain legal traction.

This essay originally appeared at American Thinker.

(The header image is of the Gettysburg battlefield, in July 1863, where over 7,000 men died. This occurred halfway through a violent war that claimed over 600,000 lives. That’s what an insurrection looks like — not a bunch of unarmed people wandering wide-eyed through the people’s house, or getting trapped in a tunnel with some being beaten to death.)