Section 3 Disqualifications for Democracy Preservation

There is an ongoing debate over whether Donald Trump must be disqualified from holding the presidency—or any public office—under Section 3 of the 14th Amendment. Enacted in the aftermath of the Civil War, Section 3 states that “No person” can hold any state or federal office if they had previously held state or federal public office in the United States and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

In a much-discussed new article, prominent conservative originalist legal scholars William Baude and Michael Stokes Paulsen argue that this rule is broad enough to bar Trump because of his efforts to overturn the result of the 2020 election and his role in instigating the Jan. 6, 2021, attack on the Capitol. They contend that large-scale efforts to forcibly impede the functions of the federal government qualify as “insurrection,” especially when it comes to a function so basic as the peaceful transfer of power.

Part of the debate triggered by the article focuses on whether Baude and Paulsen have correctly interpreted key terms such as “insurrection” and “aid or comfort.” But other critics contend that disqualifying Trump is, as Stanford Law Professor Michael McConnell puts it, likely to have “profoundly anti-democratic” consequences, depriving voters of the opportunity to vote for the candidate of their choice. This could be because disqualifying Trump and other participants in the scheme to overturn the election is inherently wrong or because it is likely to lead to dangerous slippery-slope effects.

If Baude and Paulsen’s analysis of Section 3 is otherwise sound, concerns about democracy should not prevent officials from using it to disqualify Trump and others implicated in the events leading up to Jan. 6. Democracies have good reason to disqualify would-be officeholders whose track records indicate they endanger liberal democratic values. There is plenty of relevant precedent for disqualification for purposes of democratic preservation in both the United States and other democracies, most notably “lustration” laws barring officeholding by former functionaries of communist dictatorships in the newly democratic nations of Eastern Europe. While slippery-slope concerns should be taken seriously, there are safeguards against them, particularly in the form of judicial review.

There is, however, one genuine serious downside of applying Section 3: Some insurrections are actually morally defensible. Disqualifying those who participate in rebellions fighting for a just cause is problematic. But it may be the price we have to pay for Section 3’s failure to distinguish between just and unjust rebellions against authority. Some number of unjust disqualifications may need to be accepted in order to reduce the greater menace of allowing would-be authoritarians access to the most powerful office in the land.

The Justice of Disqualification 

Both the U.S. Constitution and the laws of many other democracies include various provisions disqualifying people from officeholding. These restrictions serve a variety of purposes, including ensuring that officeholders are at least minimally qualified, barring candidates who are likely to undermine democracy by promoting authoritarianism, and excluding those who threaten basic civil liberties and other liberal values.

Under the U.S. Constitution, the president must be at least 35 years old, a “natural born citizen” of the U.S., and have resided in the U.S. for at least 14 years. The 22nd Amendment bars from the presidency anyone who has already served two terms. There are also age and residency restrictions for members of Congress.

The natural-born citizen requirement has been the object of much criticism, and I myself have argued that it is based on little more than xenophobic prejudice against immigrants and should be abolished. But few would contend that the other restrictions are so problematic as to be unacceptable in a democratic society, even though all of them significantly constrain voters’ options. The age and residency restrictions are intended to ensure that the president has the requisite maturity and knowledge of the country.

For present purposes, the 22nd Amendment is particularly notable, because it is intended to prevent the undermining of democracy through consolidation of authority in the hands of one person, using the power of prolonged incumbency. Presidents who have already served two terms may be popular with voters, and their experience may make them unusually well-qualified for the job. Indeed, the amendment was inspired by Franklin D. Roosevelt’s serving four terms. Many people believe that FDR was one of the greatest presidents. But the danger of creeping authoritarianism was enough to justify barring such individuals from further time in office. A former president who tried to use force and fraud to stay in power after losing an election is surely at least as great a menace to the future of liberal democratic institutions as one who consolidates power by serving more than two terms. Indeed, the former is probably more reprehensible and dangerous than the latter.

Other democracies have sometimes taken broader measures to bar officeholding by people who pose a threat to liberal democratic values. In the aftermath of World War II, West Germany banned both Nazi and Communist parties from contesting elections. The German Constitutional Court and the European Commission on Human Rights upheld the latter ban.

More recently, several post-communist Eastern European democracies have enacted “lustration” laws barring from office some categories of former officials under the communist dictatorships overthrown in 1989-1991—particularly former agents of the secret police. As with Nazis and communists in West Germany, these people were barred because they were seen as a danger to liberal democratic values and institutions.

There is an ongoing debate over whether these German and Eastern European restrictions helped preserve and extend liberal democracy in these countries. Critics argue that they weren’t really necessary. In the German case, they have not prevented the rise of neo-fascist parties, such as the AfD (Alternative for Germany). But it is at least notable that, even over a period of many years, they have not led to the destruction of electoral competition or a one-party state. That suggests slippery-slope concerns about such measures may be overblown.

It’s even possible that more countries should have adopted lustration laws. Had Russia followed the example of nations barring former communist secret police officers from office, for instance, the world might have been spared the horrific reign of ex-KGB Lieutenant Colonel Vladimir Putin, with all its repression and unjust wars.

Disqualification laws might be unnecessary if voters could be relied on to reject dangerously illiberal, anti-democratic, incompetent candidates at the polls. But widespread voter ignorance and bias makes exclusive reliance on electoral safeguards problematic. That is especially true in eras of severe polarization, like our own in the U.S., when fear and hatred of the opposing party makes voters reluctant to penalize wrongdoing by their own party’s leaders, or even leads them to embrace it. Ironically, but logically, democracy-preserving limitations on democracy are most necessary in situations where candidates who menace democratic values enjoy substantial popular support.

Liberal democratic institutions are less vulnerable to erosion in long-established democracies like the U.S. than in post-communist Russia or post-Nazi Germany. But social scientists warn it would be a mistake to discount the possibility of “deconsolidation” entirely.

It is sometimes argued that voters have an inherent right to choose whatever leaders they want, even if their judgment is dangerously flawed. John Stuart Mill effectively rebutted such claims in his classic work “Considerations on Representative Government,” where he pointed out that “the exercise of any political function, either as an elector or as a representative, is power over others.” Mill thus contends that choosing leaders cannot be a purely individual right that voters can exercise as they please.

As Mill pointed out, a free society can justifiably restrict access to political office far more than individual liberties, which generally affect mostly the rights-holders themselves and those who voluntarily interact with them. It would be unjust and unconstitutional to severely restrict the personal liberty of people under the age of 35, or to bar Nazis and communists from expressing their views. But banning the former from seeking the presidency, and the latter from running for public office in post-World War II Germany, is far more defensible.

The right to wield the coercive power of government should often be more narrowly restricted than the right of individuals to control their own lives. Indeed, sometimes it may be necessary to limit the former in order to protect the latter.

If voters are prone to systematic errors that could undermine the institutions of liberal democracy, it makes sense to have structural constitutional safeguards against them. And if some categories of people—whether they be insurrectionists or former functionaries of authoritarian regimes—are likely to prove a menace to liberal values if given the power to do so, it makes sense to bar them from holding public office. 

Reliance on electoral checks alone is particularly problematic in situations where the would-be officeholder has a record of trying to undermine electoral democracy itself, and could well do so again if allowed access to power. Putin and other former communist secret police officers tasked with suppressing dissent are obvious examples. And so too are Trump and others complicit in his attempt to use force and fraud to stay in power after losing an election. One of the most compelling reasons to deny such people access to political power is that they are likely to use it to destroy the very institutions of electoral accountability that usually serve to constrain politicians.

To put it a different way: Sometimes, limits on voter choice are necessary to protect democracy from itself. One such democracy-protective limitation on democracy is excluding from power people whose track record indicates they are likely to undermine democratic institutions. Perhaps things are different in situations where these people have atoned for their past actions and credibly committed to changing their ways. But, even then, it’s not clear whether such promises can be trusted. And Trump—like Putin before him—continues to claim his actions were entirely justified.

There is also the long-standing point that some limitations on democracy are necessary to protect other values. This is the traditional justification for constitutional limits on democratic majorities’ power, for purposes of protecting civil liberties and property rights, and preventing invidious state-sponsored discrimination on the basis of race, sex, and religion. In most cases, these dangers can be mitigated by enforcing constitutional rules after the fact, through judicial review, and other institutions. But we cannot categorically exclude the possibility that sometimes liberal rights can be protected only by barring those who intend to violate them from coming to power in the first place.

Slippery-Slope Dangers

The experience of Germany and former communist nations suggests that disqualification from officeholding need not create a dangerous slippery slope, allowing incumbents to suppress their opposition. Nonetheless, there are slippery-slope concerns about Section 3 disqualification that deserve to be taken seriously. Michael McConnell rightly warns that the Baude-Paulsen theory could potentially “empower … partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot.” After all, Baude and Paulsen argue that disqualification does not require prior legislation by Congress or by a state legislature. 

This problem can be mitigated by allowing judicial review of disqualification, as Baude and Paulsen themselves recognize. A candidate who believes he or she has been improperly disqualified should be able to challenge that action in state or federal court. Such judicial review is the standard remedy for many violations of constitutional rights and illegal abuses of government power. In 2016, Trump filed lawsuits claiming that Sen. Ted Cruz (R-Texas), then his leading opponent in the GOP presidential primary race, was not a “natural born” citizen, as required by the Constitution. State courts rightly rejected Trump’s arguments. But if state election officials had decided to disqualify Cruz on their own initiative, the latter could have filed suit to challenge their determinations and get his name back on the ballot.

Election law scholar Edward “Ned” Foley has laid out ways in which Trump’s eligibility can be assessed and subjected to proper judicial review long before the GOP primaries and general election. That way, the issue can be resolved before voters cast their ballots.

A second slippery-slope concern, also raised by McConnell, is that Baude and Paulsen’s definition of what qualifies as an “insurrection” may be broad enough to include “mere riots or civil disturbances,” or perhaps even any major impediments to the enforcement of federal laws. 

This problem can be addressed by limiting disqualification based on “insurrection” to situations where the person in question sought to overthrow the government or illegally take over its operations. Even if the original meaning of “insurrection” might be broader than that, courts could reason that the broader test is too easily abused and therefore too easily ventures into unconstitutional territory, threatening democratic institutions and civil liberties. A number of constitutional legal doctrines include “prophylactic” rules intended to curb such abuses. A famous example is the requirement of the Miranda warning for criminal defendants, which is not itself directly required by the Fifth Amendment, but is imposed by courts because violations of suspects’ rights would be too difficult to prevent otherwise.

Mark Graber has argued that the original understanding of “insurrection” included only armed actions with a “public purpose,” such as overthrowing the government, as opposed to a narrowly selfish one (such as rioting for the purpose of looting). If so, that would exclude most riots and other non-politically-motivated resistance to law enforcement.

That said, disqualification for participating in “mere” riots might not be such a grave problem. Riots inflict grave harm on innocent people, and it isn’t unreasonable to conclude that those who participate in such activity are morally unfit for public office. Moreover, Section 3 does not disqualify all insurrectionists (or all rioters, if we assume riots are insurrections), but only those who previously held public office, which would have required them to take an oath to support the Constitution. That makes it unlikely anyone would be disqualified for aberrational youthful indiscretions.

Disqualification for providing “aid and comfort” to enemies of the United States (which Baude and Paulsen argue include domestic insurrectionists as well as hostile foreign powers) could create additional slippery-slope dangers. But this risk, too, can be mitigated by ensuring that “insurrection” is defined as an attempt to violently overthrow or take over the institutions of government. Officeholders who support such activities—even without violence—can reasonably be seen as serious potential threats to liberal democracy themselves, much like Nazis and Communists in post-World War II Germany.

Not All Insurrections Are Equal

While many concerns about Section 3 disqualification are overblown, there is one that has so far mostly been ignored: Some insurrections are actually justified. Section 3 wrongly fails to distinguish between insurrectionists fighting for just causes and those fighting for evil ones. 

The United States, of course, was created through a rebellion against unjust government. Had Section 3 been in force during the Founding era and the disqualification provision applied to insurrection against Britain as well as against the U.S. government, many of the Founding Fathers would have been barred from holding office, by virtue of their participation in the Revolutionary War. Perhaps there is an implicit assumption that the U.S. government could never be as blatantly unjust as the British Empire was, and thus no insurrection against it could be justified. But such a possibility cannot be categorically ruled out. Indeed, the government established by those who overthrew King George III itself tolerated—and sometimes promoted—the horrific evil of slavery.

It should be obvious that participants in John Brown’s and Nat Turner’s rebellions against slavery—both “insurrections” under any plausible definition of the term—were not on the same moral plane as the Confederate rebellion in defense of that same evil institution. While the latter was the event that inspired the enactment of Section 3, the former are still covered by the text. That false moral equivalency is wrong.

Perhaps this concern is of purely historical interest. In modern times, it may be difficult to imagine a just insurrection against the U.S. government. Despite Trump lawyer John Eastman’s recent appeal to the Declaration of Independence to justify their actions in the lead-up to Jan. 6, the attempt to overturn the results of an election surely does not qualify.

But the U.S. government may have some policies unjust enough to justify violent resistance. In my view, many of our immigration restrictions and some aspects of the war on drugs arguably qualify. But even if no current U.S. policies fit the bill, we cannot guarantee that none will do so in the future. Democratic governments are less prone to large-scale oppression and injustice than dictatorships. But they are not wholly immune to it.

Sadly, Section 3 makes no attempt to distinguish between just and unjust insurrections. Even if it did, we might well doubt the ability of judges and other public officials to distinguish between the two, objectively. Thus, we cannot rule out the possibility that Section 3 may someday be used to disqualify people who participated in an insurrection with a just cause. Accepting this risk is probably an unavoidable price of using Section 3 at all.

On balance, I think the risk is worth it. In modern times, armed rebellion against liberal democracies is more likely to be undertaken by illiberal authoritarians than by those seeking to make the state live up to its own principles more fully. Moreover, barring some possibly good people from public office may well be a price worth paying to ensure the exclusion of some of the very worst.