Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump

reason.com ^ | 8.12.2023 | EUGENE VOLOKH

[bitt]

"We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic." EUGENE VOLOKH | 8.12.2023 6:58 PM

I'm delighted to be able to pass along this response by Prof. Michael McConnell (Stanford Law School) to a couple of items that were posted on the blog in the last few days:

"There is a recent flurry of interest in Section 3 of the Fourteenth Amendment, which bars any person who has "engaged in" an "insurrection or rebellion" (after having previously taken an oath to support the Constitution) from holding state or federal office. This provision has played no significant role in American governance since 1872 and was regarded by many scholars as moribund. The revival of interest in Section 3 is sparked by scholarship by several scholars with impeccable conservative credentials, including my friends Will Baude, Michael Paulsen, and Steve Calabresi. See and Their work advocates a "broad, sweeping" interpretation of the disqualification provision, and claims that under Section 3, Donald Trump is ineligible to run for a second term, without any further process, hearings, or adjudications. Already it has drawn the attention of the New York Times, and presumably will fuel efforts to keep Trump off the ballot.

I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3.

We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused,

[bitt]

p

[bigbob]

Talk talk talk...they’ll just do it and get away with it because all anyone will do about it is talk...

[joshua c]

we are talking about the
“ends justify the means” crowd

they dont care

[frnewsjunkie]

Do these people know we, who do not live in politics, are more than DONE with their witch hunt for reasons to fire Trump.

[Mr. K]

I agree with this guy, with whom I have low regard now too.

[Forward the Light Brigade]

Its almost as if the Deep State wants to start a real insurrection—like where people bring guns and stuff. They hope that one battle will crush the MAGA Rebellion. Lincoln thought that in 1861 with Bull Run, shatter the Rebel Army, capture Richmond, arrest Jeff Davis and the whole thing is over in a few weeks. They didn’t count on Stonewall Jackson—or the use of trains to move armies.