One of the most important questions in American constitutional politics in recent memory is whether Section 3 of the 14th Amendment to the U.S. Constitution disqualifies former President Donald Trump from holding the office of the presidency again. In a recent and hotly discussed draft law review article, law professors Will Baude and Michael Stokes Paulsen make a strong case that Section 3 is enforceable and self-executing and that it covers a broad swath of conduct, including Trump’s participation in the attempted overthrow of the 2020 presidential election.
Section 3 of the 14th Amendment states:
“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 … who having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
If the Baude-Paulsen analysis holds, Trump would be disqualified from holding public office.
Baude and Paulsen’s work immediately triggered a wide range of responses. Regardless of whether they agree with the authors’ analysis, American’s legal elite seem convinced of one thing: This is a question for the Supreme Court. Michael McConnell, Michael Luttig and Edward Foley all have argued to that effect. Luttig, for example, said on MSNBC that “the Supreme Court of the United States is the authority to finally decide this question. … That’s what the Constitution literally created and established the Supreme Court for.” Even Rep. Adam Schiff, D-Calif., believes that the “big question mark through all of this … is: What will the Supreme Court do?”
“Juristocracy” describes a regime in which judicial actors decide questions that would have otherwise been resolved by more democratically accountable officials.
The collective tone of these commentators is pleading: Run — do not walk — so that the judges can settle this looming problem. The assumption is that, rather than leaving it to any other constitutional actor, it necessarily must be a question for judges. To be clear, we can only speculate how the courts would handle such a question. But while the outcome is uncertain, the assumption that animates much of the Section 3 conversation is revealing.
The debate reveals how juristocratic our legal culture has become. “Juristocracy” describes a regime in which judicial actors decide questions that would have otherwise been resolved by more democratically accountable officials. The legal elites weighing in on Section 3 assume that the Supreme Court can solve this question on our behalf. Even scholars who believe that Section 3 is self-executing — meaning that state and local officials are duty-bound to enforce it themselves — do not question whether judges should resolve the disqualification question.
How did we get here? Over the last two centuries, the federal judiciary has seized enormous power to intervene in political issues. That power has expanded far beyond the wildest imagination of our founders, who established a relatively meager court system. To explain how federal judges have pulled off this constitutional coup, scholars have increasingly turned to “judicial aggrandizement,” which is “the successful deployment of ideas and norms that reinforce the judiciary’s role as the final arbiter of political disputes at the expense of other governing institutions.” When judges themselves deploy these ideas and norms, it is “judicial self-aggrandizement.”
The conversation around Section 3 is replete with examples of judicial aggrandizement’s impact. In Colorado, for example, Secretary of State Jena Griswold determines whose names are listed on Colorado ballots. Both the U.S. and the Colorado constitutions obligate Griswold to uphold and abide by the U.S. Constitution. Worried that Griswold will make the wrong choice, however, a group of Colorado voters is asking a judge to order her to disqualify Trump from the ballot. That case eventually may end up before the U.S. Supreme Court, where nine judges can determine whether Griswold — who is equally obligated to uphold the U.S. Constitution — has the discretion to disqualify someone like Trump under the 14th Amendment. Griswold is one of dozens (if not hundreds) of state officials who are under such an obligation. Nevertheless, the commentators turn to the Supreme Court for an answer.
The debate fails to question the wisdom of assigning the 2024 presidential election to an unaccountable Supreme Court.
Similarly, legal elites frequently suggest that Section 3 is not self-enforcing or that it requires a traditional judicial process because any nonjudicial political process would wreak havoc at the state and local levels. This is a familiar strategy; lawyers often weaponize contempt for politically accountable officials to justify the accrual of authority in judges and in themselves.
The preference for judges to decide, rather than any other elected officials, is rooted in an assumption that judges are not subject to the whims of bad-faith partisanship. McConnell, for example, immediately jumps to the criminal process to make sense of Section 3: “This mode of enforcement … proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step.” And he makes it explicit that judicial process is necessary because disqualification cannot be left to “partisan officials in state governments.” Other commentators question the wisdom of Section 3 altogether, casting it as the product of a vengeful post-Civil War Congress. Eric Posner, for example, openly suggests that Section 3 was “ill-considered” and animated by “vengeful impulses.”
This is not to suggest that courts have no role to play in interpreting and constructing constitutional meaning; judges are an important part of our political system. Rather, it is important to note that the debate fails to question the wisdom of assigning the 2024 presidential election to an unaccountable Supreme Court when other, equally viable mechanisms exist. The goal should be for the American public to recapture the spirit of the 14th Amendment, which envisions a democratic contest over selecting our officeholders without denying due process to anyone who seeks office.
In an ideal world — or at least a world where legal elites’ default presumption involves anything other than immediate judicial resolution of every major constitutional issue — a far better solution involves local elected officials like secretaries of state holding fact-finding hearings. While it was not necessarily a model procedure, Georgia in 2022 held a hearing like this to determine Rep. Marjorie Taylor Greene’s eligibility. Officials could use those hearings to determine whether Trump engaged in an insurrection or a rebellion against the Constitution and potentially reach the conclusion that the 14th Amendment prohibits him from holding office.
If, after the hearing, Congress determines that the local official made the wrong decision based on the evidence, it could use its independent judgment to override the local official’s determination, which the 14th Amendment permits. If Congress wants to substitute its judgment for that of other elected officials, it must do so by taking a position on the evidence so that it can be held accountable by its fellow legislators and their constituents. Local elected officials have the same obligation. If courts were involved at all, it would be to determine whether a hearing violated a separate constitutional guarantee (due process, for example). In short, letting political actors who are not judges get involved in constitutional politics is good, not something to be avoided.
If nothing else, Americans should ask ourselves what exactly federal judges — and specifically the justices of the Roberts court — bring to the table in vindicating the 14th Amendment. Although Trump most likely should not be on the ballot, the American people should not be so quick to hand that question to the courts.
