by Barry Goldman
There is a controversy about whether Section 3 of the 14th Amendment to the US Constitution disqualifies Donald Trump from serving as president. Different people have different opinions. Some people have different opinions at different times. But whatever their position on the question, everyone seems to agree that the question itself is a sensible one, and it has a correct answer. I don’t think so.
Let’s review.
Section 3 of the 14th Amendment says this:
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.
In August of 2023 law professors William Baude and Michael Stokes Paulson published a 126-page article in the University of Pennsylvania Law Review called “The Sweep and Force of Section Three.” Their conclusion was that Trump is ineligible.
Steven Calabresi, a professor at Northwestern University and one of the founders of the Federalist Society, read the article and posted on his blog:
Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them.
Subsequently, Michael Mukasey, Attorney General under George W. Bush, wrote a piece for the Wall Street Journal in which he reached the opposite conclusion. “Officer of the United States” he wrote, “refers only to appointed officials, not to elected ones.”
Two other law professors, Josh Blackman and Barrett Tillman posted their own 126-page article on the subject. They found, “substantial evidence that the president is not ‘an officer of the United States’ for purposes of Section 3.” They said:
If we are correct, Trump is not subject to Section 3 at all. If we are right, then states cannot unilaterally remove Trump from the ballot under the authority of Section 3.
This caused Prof. Calabresi to change his mind. He told the New York Times:
I carefully reread the materials on whether Section 3 of the 14th amendment applies to Trump and concluded that it most likely does not.
Subsequently, there have been countless opinion pieces on the subject, and more courts are ruling on the question every week. According to The Economist, lawsuits have been filed in 28 states:
For one example, look to a 100-page ruling by Sarah Wallace, a state judge in Colorado, issued on November 17th. Although Judge Wallace was convinced that “Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech”, she ultimately concluded that the former president should not be removed from the ballot. That is because she does not believe the president counts as “an officer of the United States”, as mentioned in the relevant section of the 14th Amendment. She also writes, in an even more remarkable feat of hairsplitting, that the section was written to cover those who “support” the constitution, whereas the presidential oath is to “preserve, protect and defend” it.
Both sides of this controversy are making a category mistake. “Does Section 3 disqualify Trump?” is not the kind of question about which it is possible to be right or wrong.
Some questions do have clear, correct answers. Suppose you want to know whether Fido has worms. You collect a stool sample and take it to the vet. You hand it to the tech, and you have a pretty good idea what’s going to happen. A person who knows what she’s doing will go through a proscribed procedure and prepare a slide. Then she will look at the slide under a microscope and identify what she’s looking at as either worms or not worms. If the slide was properly prepared, and the tech was properly trained, you will get a simple, clear answer to your question. We like to pretend legal decisions work the same way (mutatis mutandis). You hand in your brief, and someone who knows what she’s doing follows an accepted procedure, performs an analysis, and reaches the same conclusion any other properly trained practitioner would reach given the same law and the same facts.
But it just ain’t so. If it were, all these exhaustive treatises by all these prestigious scholars and learned jurists would have converged on an answer.
To expect such a convergence is to reveal a fundamental misunderstanding of what lawyers do. What lawyers do is produce legal arguments. If you give a lawyer a position (and a fee) he will produce arguments in support of that position. And he will keep producing arguments as long as you keep paying the fee. He will say the president is not an “officer.” He will say a promise to “support” the Constitution is not a promise to “preserve, protect and defend” it. He will say these things and more, and he will say them with a straight face and a clear conscience because it is his job.
What about judges? A judge, as the immortal Fred Rodell told us, is “a lawyer who knew a governor.”
The temptation at this point in the discussion is to say, “Well yes, the people on the other side, the bad people, have no intellectual honesty and no integrity and no respect for the Law, and they just make stuff up according to their personal policy preferences because they are judicial activists who legislate from the bench. But the good people on my side don’t do any of those bad things.”
That’s why we need to talk about Dobbs.
In 1973 in Roe v. Wade the Supreme Court ruled 7 to 2 that the Constitution protects a woman’s right to an abortion. In 2022 in Dobbs the Court ruled 6 to 3 that the Constitution does no such thing. The majority in Dobbs said the decision in Roe was not just wrong, it was “egregiously wrong.” The dissent in Dobbs explained what had happened:
The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.
This is certainly true. I only wish to point out that the dissent said exactly the same thing 50 years ago in Roe. You can read it here. I’ll just quote one sentence:
[T]he Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify…, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
This is how it is done. The majority says it’s following the law. The dissent says the majority is imposing its own policy preferences despite the law. Then, when the ideological makeup of the majority changes, the roles reverse.
There is an apocryphal story about Abe Lincoln. He is supposed to have asked, “How many legs does a cow have if you call its tail a leg? The poor rube in the story says “Five.” And Lincoln says “No, four. Calling a tail a leg doesn’t make it one.”
Old Abe is right about cows, but he’s wrong about laws.
The point is there is no such thing as “legal science.” The law is what the majority of the Court says it is. That’s all there is to it. The rest is eyewash. As Justice Scalia liked to say about Bush v. Gore, “Get over it.”
There is a final irony in the Section 3 case. Lefty liberal progressive types (like me) like to say we are pro-democracy. The bad people on the other side are doing their best to suppress the votes of minorities, poor people, and young people. They’re afraid if there are fair, free elections their candidates will lose.
Fair-minded, pro-democracy people like us on the other hand want mail-in ballots and extended voting hours and better access to polling places and all that kind of thing. We want the voice of the people to be heard. We just don’t want their guy’s name on the ballot.