Prof. Will Baude on Section 3, Insurrection, and Trump

The face that launched a thousand ships.

By and
92

Prof. William Baude joins Sarah and David to explain why he thinks Trump’s actions in 2020 might be constitutionally disqualified from running for president again.

Show notes:

-Prof. Michael McConnell, Responding About the Fourteenth Amendment, “Insurrection,” and Trump

-The Sweep and Force of Section Three

-AO episode about the law article

By and
Comments (92)
Join The Dispatch to participate in the comments.
 
  1. Beltonzeigler

    Question: In interpreting the text of the Constitution, and given the required brevity of form, is it not logical to assume that the drafters would have drafted with the understanding that the text would be interpreted according to the canons of statutory (and now constitutional) interpretation that were current at the time. For example, the canon against construing text to create an absurd result allows constitutional texts to be drafted succinctly and without the need to exclude with express language, every absurd result, such as "Its OK to have a president who is an insurrectionist, but not a postmaster."

    Collapse
  2. Cmires

    I have now listened to Baude present his argument three times and am still far from convinced. The whole self-executing concept seems half-baked at best. Comparing insurrection and aid and comfort with the age requirement for holding office seems ridiculous. The former clearly needing a full dose of due process. I am calling it the iSS theory for independent Secretary of State theory. Small “i” knowing that SCOTUS will sort this out. But what a mess and waste of time along the way.

    And Will does give off a full NPR vibe. Not only the tone of voice but Baude and his podcast partner meander around, trying to be a bit funny, not their strong suit, on their podcast like the old SNL skit. Too bad as it makes the podcast almost unlistenable with way too little time spent on interesting analysis. I don’t think they particularly care and guess this is a bit of an escape from what they can get away with in their classrooms.

    Collapse
  3. Steven Kusian

    In 1860, the Republican Presidential ticket was lead by Midwesterner Abraham Lincoln, and "balanced" by Hannibal Hamlin (from Maine.) In 1864, seeking re-election, the Republican ticket was "balanced" by a Southern Democrat in Andrew Johnson.

    Does it seem plausible to anyone that in the days of pols in 'smoke-filled rooms' presenting national party slates, someone may have anticipated the need to "balance" an oath keeping Presidential candidate with an oath 'breaking' Vice President, or vice versa? Would that explain why those two offices were excluded from the list?

    I would be happy to have this thought swatted down. I have zero evidence to support my theory.

    Collapse
  4. David White

    Listened to the podcast about the same time I was reading about Eisenhower. Apparently his commission as general was withdrawn during his presidency and reinstated after his retirement. Offer any insight?

    Collapse
  5. Avatar photo
    Joseph.A.Timmer

    Professor Baude missed his calling as the guy who gives Ethan Hunt his missions on those exploding cassette tapes.

    Collapse
  6. Twvacek

    Having the debate about qualification while glibly passing over the definition of insurrection (accepting the most expansive definition) is highly irresponsible. I wish you would have asked Baude if he believed Tom Cotton’s 2020 op-ed was correct. Allowing the term “insurrection” to become lightweight will surely end with military violence against US citizens (but only against citizens you don’t like, so never fear.)
    You also let Baude off too easy on the meaning of “enemies thereof.” Allowing that to be a mere synonym for insurrectionists (and perhaps people who may harbor secret sympathy for the insurrectionists) is a gaping hole.

    Collapse
  7. Avatar photo
    Michael Berkowitz

    Urinals? Really?

    Collapse
  8. David Welker

    I believe Blackman is wrong and I think Baude is wrong. I think Baude’s article is much longer than it should be. The entire Constitution was debated and drafted over a four month period by people who, at some point during this very hot Philadelphia summer, really just wanted to get home.

    I think Baude and Paulsen may have just spent more time writing their article than the framers took to write the Constitution.

    Human language is context specific. That the word officers in Article II refers to “those officers” rather than “all officers” is not disturbing. When we are in Article II, talking about the President, the assumption is that we have a President. And talking about officers needing commissions as being everyone but the President is logical in that context. Why do officers other than the President need a commission? Because the executive power is vested in the President; so they need a commission from him to exercise executive authority on his behalf. The President doesn’t need a commission because he is already vested with executive authority.

    Now, the move that Blackman makes, and I don’t think he is a dumb man, is frankly whacky. Let’s use the fact that officers does not refer to the President in this particular narrow context to conclude that the President isn’t an officer in any context. Frankly, I believe that is a really stupid move that I think you all are taking it far too seriously.

    There is an office of the Presidency, bro. So, the President is OBVIOUSLY an officer. This isn’t rocket science. There is not some hidden code.

    If you look at the purpose of section 3 of the 14th Amendment, it is to disqualify anyone who takes an oath of office from subsequently holding office if they violate that oath. The President takes an oath. If he then engages in insurrection, he has violated that oath. The argument that he alone is a person who can violate his oath of office to uphold the Constitution by engaging in insurrection without consequences is frankly really stupid. I am not saying that only stupid people will debate this, I am saying that to debate this is stupid. I don’t care where you come down on this, your method of interpretation is bad because your methodology is overly complicated.

    That words have different meaning based on context is nothing new. That is true in Latin and it is true in English. That “officers” in Article II doesn’t include the President is NOT a big deal. It is like the President pointing at a group of people and saying, “Those people, if they want to be officers, need a commission from me. All those people who want to be officers need a commission from me. Because the executive power is vested in me and me alone.”

    Basically, the population of officers in Article II is everyone other than the President. Because the context is we already have a President.

    The concept of “context matters” is not a new and exciting concept. It is as old as Latin and as old as English. The context of Article II and the context of section 3 of the 14th Amendment are different. If you simply look at the purpose of requiring commissions or the purpose of disqualifying people who have violated their oaths of office, the answer is clear. If the President violates his oath of office to uphold the Constitution, he is not dissimilar.

    I consider myself an originalist. But if you are going to go about trying to interpret the Constitution as though it is a purposeless and context free document, I think you are being stupid.

    This thing was written over a four month period by multiple people who were really hot. And when they mean different things by the word “officer” in different contexts, they are just speaking in plain English.

    The only reason that this debate goes on and on with Baude taking the ideas of Blackman and Tillman far too seriously is because you all are acting like Martians. “Who are these specimens who wrote the Constitution?”

    Martians, of course, are not initially capable of understanding the concept of context and purpose. But you are.

    Stop making this overly complicated. I agree with Baude’s ultimate conclusion about whether the President is an officer, but by God, his methodology for doing so is just plain awful.Show less

    Collapse
    1. Twvacek

      The omission of President and Vice President in the list of officers covered is simply too shocking an omission and I conclude to be deliberate. I don’t trust the breadth of the legislative history debate, as ratification would have required many debates, some of which may not have transcripts.

      Collapse
      1. David Welker

        I don't think the omission is shocking.

        But if you think it is deliberate, which way does that go? Was it a deliberate omission because they thought it was obvious that the President is an officer, or is it a deliberate omission because they thought that President shouldn't be subject to the clause?

        I too think it was a deliberate omission. But due to the former rather than the latter.

        Collapse
        1. Twvacek

          A president who refuses to leave office, either by impeachment or election, is too easily imagined to have been overlooked or intentionally left ambiguous. I conclude the 14th Amendment was not intended to remedy this. How literal is "support the Constitution" as a limitation? The president's oath is to "preserve, protect, and defend." Congress and other officers' oaths explicitly mention "support." Are Supreme Court justices covered by the list of people "having previously..."? Their oath doesn't have any of "support," "preserve," "protect," or "defend." Why should they get a pass?

          I believe that a sitting president cannot lead an insurrection by definition. In theory, a conundrum only arises over an ex-president, but obviously an expiring president must not be allowed to impede Congress and prevent replacement. I think it comes down to the fact that the drafters wouldn't have called Jan 6 an insurrection.

          Collapse
          1. Nordic_man

            I believe that a sitting president cannot lead an insurrection by definition. In theory, a conundrum only arises over an ex-president, but obviously an expiring president must not be allowed to impede Congress and prevent replacement. I think it comes down to my random belief that the drafters wouldn't have called Jan 6 an insurrection.

            FTFY

            Collapse
  9. William Travis

    Great episode, as always!

    This is completely out of the blue, but I would LOVE to hear Sarah and David talk even for a few minutes about what authority Patrick McHenry has as Speaker Pro Tempore of the House. I've been doing some deep dives (I'll link one of the articles I read below), and it is fascinating, and (I think) right up the AO alley. Full of textualist arguments, debates over the original intent behind the rule in question, and discussions of how precedent is made (and how hard vs. soft precedent is made). I know it's not the typical topics AO covers, but this is just fascinating!

    https://mattglassman.substack.com/p/how-much-power-does-speaker-pro-tempore

    Collapse
  10. Avatar photo
    Ben Connelly

    The CHAZ jackwads absolutely should be disqualified from holding office.

    I saw where Sarah was going with that lightning strike thing before she said “secret service.”

    Collapse
    1. David Welker

      The Chaz jackwads never held an office under the United States, so they never violated an oath. They therefore aren’t disqualified, even if you think their actions qualify as an insurrection.

      I personally think the chaz folks are insurrectionists but the subset of Jan 6 folks who merely thought they were taking action so that the person who was legitimately elected would take office are not insurrectionists.

      But regardless, no one from either group can be disqualified from holding office unless they have previously held office.

      Collapse
      1. Avatar photo
        Ben Connelly

        Yes, you are correct in terms of the law. I meant that they “should” be disqualified, in the abstract Or philosophical sense.

        Collapse
        1. David Welker

          Gotcha. Fair enough.

          Collapse
Load More