In Defense of Disenfranchisement

I have one very small, non-legal point to add to Advisory Opinions’ very interesting conversation with professor Michael McConnell about the issue—lamentably relevant—of whether Section 3 of the 14th Amendment (the “insurrection” bit) prevents Donald Trump from serving as president. 

(The title of the episode, “Coup d’Target,” apparently is a quotation from me. I didn’t remember having originated the phrase, but, then, I write a lot.) 

McConell and the hosts (Sarah Isgur and David French) talked at some length about a recent law review article in which the authors (William Baude and Michael Stokes Paulsen) argue that Trump can, in fact, be prohibited from serving as president. The part that stuck out for me: 

[In criticizing the text, Justice Salmon] Chase emphasized the breadth of Section Three’s language: it applied in all the states, not just the former Confederacy (so?); it applied beyond the context of Civil War but included aiding enemies in a foreign war (so?); it would apply in terms to immediately disqualify men for acts done long ago, for example in the Mexican War (so?); it would apply “to all persons in the category” and “for all time, present and future” (so?). And, taken seriously, this broad rule would, as noted, “annul all official acts” performed by disqualified officers, including judges. (Would it?)