Donald Trump and the forgotten 14th Amendment
By 
Mark Graber has an excellent-looking new book out about how most of the framers of the 14th Amendment considered Sections 2-4 of the Fourteenth Amendment to be more important than Section 1. The reason for this is fairly clear: Dred Scott had taught them that even the most expensive and carefully worded protection of rights against state violation would mean little if they were interpreted by public officials hostile to civil rights. Therefore, their crucial concerns were 1)ensuring that the South could not gain the boost in representation they would receive from abolition of the 3/5ths clause unless they actually enfranchised the freedmen, and 2)disqualifying hardcore confederates from the franchise. Alas, they were all too prophetic: Republican elites turned against civil rights, the addition of a bunch of empty western states sharply reduced their electoral incentive to enforce Sections 2 and 3, and the 14th and 15th Amendments became dead letters for decades unless they could be used to strike down progressive economic legislation.
Some people will assume that the impetus for this book was the election of Donald Trump, but the paper that it grew out of was actually published in 2014. To underscore that this argument is not crudely partisan, the idiosyncratic conservative legal scholar Will Baude and the conservative legal scholar whose book was blurbed by Sam Alito Michael Stokes Paulsen argue that Donald Trump is not eligible to be president:
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.
The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.
“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”
He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”
A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy. But the scope and depth of the article may encourage and undergird lawsuits from other candidates and ordinary voters arguing that the Constitution makes him ineligible for office.
“There are many ways that this could become a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide,” Professor Paulsen said.
Mr. Trump has already been indicted twice in federal court, in connection with his efforts to overturn the 2020 election and his retention of classified documents. He is also facing charges relating to hush money payments in New York and may soon be indicted in Georgia in a second election case.
Alas, Thaddeus Stevens remains all-too-prescient: there is no chance the federal judiciary will enforce the 14th Amendment and prevent Donald Trump from appearing on the ballot. But that doesn’t make Baude and Paulsen wrong.