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Looking for the magic words


The argument that the 14th amendment bars Donald Trump from becoming president again is academic in the worst sense of the word:

A little more than a month ago, a law professor who helped found the Federalist Society, the conservative legal group, enthusiastically endorsed a new law review article arguing that Donald J. Trump was ineligible to be president.

The article was “a tour de force,” the professor, Steven G. Calabresi, told me. It demonstrated, he said, that Mr. Trump was subject to a provision of the Constitution that bars some officials who have engaged in insurrection from holding government office.

“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,” said Professor Calabresi, who teaches at Northwestern University.

He appeared to be offering considered views, and he elaborated on them in a blog post titled “Trump Is Disqualified From Being on Any Election Ballots.”

Last week, in an extraordinary about-face, the professor changed his mind.

In a letter to The Wall Street Journal, he said he had been persuaded by an opinion article in that newspaper that the provision — Section 3 of the 14th Amendment — did not apply to Mr. Trump.

In that article, Michael B. Mukasey, who served as attorney general under President George W. Bush, focused on a part of the provision that limits its scope to people who had taken an oath to support the Constitution “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.”

The only category that even arguably applies to Mr. Trump is “an officer of the United States,” Mr. Mukasey wrote. But that phrase, he asserted, “refers only to appointed officials, not to elected ones.”

That proposition is not self-evident, and the 126-page law review article that had set off the discussion, by William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, considered the meaning of “officer of the United States” at length.

It concluded that “the ordinary sense of the text” of the Constitution, “the structure and logic of its provisions,” “the evident design to be comprehensive,” “the seeming absurdity of the prospect of exclusion of the offices of president and vice president from triggering the disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or ‘triggering’ language, insurrectionists who once served as president and vice president.” . . .

Professor Calabresi wrote that his thinking had been influenced by a new article posted on Tuesday by two other professors, Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, who have long pressed arguments that some provisions of the Constitution do not cover the president.

Their article, also 126 pages long, collected and considered what it said was “substantial evidence that the president is not an ‘officer of the United States’ for purposes of Section 3.”

It added: “Numerous sources that we cited discussed this issue; no one spoke in a ‘secret code,’ as Baude and Paulsen charge. 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 is among other things a nice illustration of the inherent limitations of originalist interpretation. How to apply the 14th amendment’s provisions designed to disqualify the supporters of treason in the defense of slavery to a radically different set of political and cultural circumstances 150 years later is a question that can only be answered in broadly political, not narrowly technical legal, terms.

On a pragmatic level, the attempt to disqualify Trump on these grounds via litigation will fail, and really ought to fail, if for no other reason than eliminating Trump in this way — which again isn’t going to happen — would be almost as much of a constitutional crisis as re-electing him.

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