Baude and Paulsen Are Mistaken: Section 3 Has Never Barred Anyone from Serving as President

Abstract

Section 3 of the Fourteenth Amendment in relevant part provides:

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 …, who, having previously taken an oath …, to support the Constitution of the United States …, shall have engaged in insurrection or rebellion against the same[.]”

Professors William Baude and Michael Stokes Paulsen have recently contended that Section 3 bars Donald Trump from again serving as president because, having taken the presidential oath, he “engaged in insurrection” by unlawfully conspiring to overturn the legitimate result of the 2020 presidential election. Even accepting the very dubious premise that Trump “engaged in insurrection,” he is not barred from serving again as president. The argument made by Baude and Paulsen suffers from two fatal flaws.

First, Baude and Paulsen make the textual mistake of ignoring the significance of the omission of the specific terms “President or Vice-President” at the head of the list of specifically barred federal offices. If it had been intended that the presidency and vice presidency would be barred offices, any reasonable, competent, careful, sober legislator would have drafted Section 3 to begin with the words: “No person shall be President or Vice-President, or a Senator or …”

Secondly, their textual mistake ensures that Baude and Paulsen are blind to the policy consideration underlying the deliberate omission of “President or Vice-President” from the list of barred offices. Elections for president and vice president are nation-wide in scope. Federal electors are elected in individual States, but the president and vice president are elected only after tallying the electors’ votes from every State all together. All the specifically barred federal offices entail elections limited to individual States.

The distinction between nation-wide elections and elections held in a single State is crucial. While unreconstructed rebel voters might constitute majorities in individual States that had formerly seceded, the national electorate could never have been so constituted. In the late 1860’s, the ratio of populations of States that had remained in the Union compared with populations of formerly Confederate States was almost 5 to 1. Additionally, disloyal persons were specifically barred by Section 3 from serving in the electoral college. Thus, there was no reason to deny the national electorate a perfectly free choice for president and vice president—it was impossible that unreconstructed rebel voters would pick winners in a nation-wide election. That is why Section 3, on its very face, never barred anyone from serving as president.

Keywords: Section 3, Fourteenth Amendment, Donald Trump, Baude, Paulsen

JEL Classification: K19, K39