Baude & Paulsen Research Paper
"Sweep and Force of Section Three"
The uploaded paper by William Baude and Michael Stokes Paulsen was referenced in the 7th paragraph of a 01/12/24 article by Quinta Jurecic in The Atlantic's Ideas section entitled January 6 Is Exactly What the Fourteenth Amendment Was Talking About.
According to Ms. Jurecic, both authors are law professors who are originalists whose methodology is likely to be appealing to the Supreme Court’s conservatives.
The Sweep and Force of Section Three
University of Pennsylvania Law Review, Vol. 172, Forthcoming
Posted: 14 Aug 2023 Last revised: 19 Sep 2023
University of Chicago - Law School
University of St. Thomas School of Law
Date Written: August 9, 2023
FYI: The full pdf, provided below, is 128 pgs.
Abstract
Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.