Long stories short
- North Korea said Travis King, a US soldier, crossed its border because of racism and maltreatment in the army.
- Three Bulgarians were arrested in the UK on charges of spying for Russia.
- Four Australians and two Indonesians were rescued from surfboards after 38 hours missing at sea.
Next year the University of Pennsylvania Law Review will publish an article by two conservative law professors arguing that Trump is already constitutionally barred from making a new run for the White House.
So what? There’s no need to wait until next year. The article is already all over the internet in draft form. Moreover…
- It’s compelling, especially if you’re a constitutional originalist.
- It urges US officials to end Trump’s candidacy right now, without waiting for Congress or the courts to act.
- It’s not alone. Constitutionalists are busy elsewhere making the case that there are times, and this is one, when the law must trump freedom for the sake of democracy.
Section Three. These two words may become familiar. Section Three of the 14th Amendment to the US Constitution states that “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” if they have previously “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.
The italics have been added for emphasis. “Any office” clearly includes president. “Aid or comfort” clearly covers Trump’s tweets and speeches to supporters in the days and hours before the January 6th insurrection, even if his lawyers argue he did not engage in it himself.
The history of Section Three is dramatic. It was added to prevent a repeat of one of the most brazen acts of the Confederacy, which sent a posse of its defeated leaders – including four generals, four colonels and the vice president of the Confederacy – to serve as senators and house representatives in Congress even after they had violated their oaths to the constitution by engaging in secession and civil war.
The amendment was passed in 1866. A century and a half later two aspects of the Section Three argument are attracting particular attention:
- It’s said to be “self-executing”. As the Yale historian Timothy Synder explains, it’s meant to be enforceable automatically, just as another clause of the constitution bars from the presidency anyone not born in the United States. Enforcement of Section Three might trigger legal challenges, but court action doesn’t have to come first. “Its disqualification, where triggered, just is,” the article’s authors write.
- Those authors are a pair of originalists who bow to no one in their fealty to what they consider an authentic reading of the US Constitution. William Baude is a rising star of the right who clerked for the Supreme Court’s Chief Justice, John Roberts, a year after graduating from law school. Michael Stokes Paulsen is a passionate critic of Trump but an equally passionate admirer of Supreme Court Justice Samuel Alito, author of the Dobbs decision overturning Roe v Wade.
Paulsen v Trump. Within two days of the January 6th insurrection Paulsen had published an appeal for Trump to be impeached for “high crimes and misdemeanours” – the standard required. When that strategy foundered in the Senate, his basis for disqualifying Trump shifted to Section Three. Trump has paid no attention. Far from it, he has publicly welcomed the four criminal indictments he now faces since they have expanded his base and helped his fundraising. One more, he says, would “close out this election”.
Oh really? There is an alternative in which the law defends democracy instead of being trampled by it.
- In Germany, President Frank Walter Steinmeier, the editorial board of Der Spiegel and others have been musing in public about invoking constitutional guardrails against extremism, in place since 1949, to ban the hard-right Alternative für Deutschland (AfD) party as anti-democratic and anti-constitutional.
- In the UK, the Supreme Court halted Boris Johnson’s bid to prorogue parliament in 2019, and the European Court of Human Rights continues to offer a legal safety net of last resort despite the best efforts of Johnson’s successors.
It’s not just populist ideas that can move fast from the fringe to the mainstream. Now that Baude and Paulsen have launched Section Three into the ether, there’s no telling where it might land.
Photograph Getty Images
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