Two constitutional law scholars—Will Baude and Michael Stokes Paulsen—recently published an in-depth article arguing that President Donald Trump is disqualified for running for reelection under Section 3 of the 14th Amendment. In this episode, law professors Mark Graber and Michael McConnell join host Jeffrey Rosen to discuss what Section 3 means and how it applies to disqualification from office; whether President Trump's actions qualify as engaging in insurrection; whether or not Section 3 is self-executing and who can enforce it, and more.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Mark Graber is University System of Maryland Regents Professor at the University of Maryland Francis King Carey School of Law. He is the author of numerous books and articles about constitutional law and politics, and his most recent book is Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War (2023).
Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution. From 2002 to 2009, he served as a circuit judge on the United States Court of Appeals for the Tenth Circuit. In addition to authoring numerous articles and books (including most recently Agreeing to Disagree: How the Establishment Protects Religious Diversity and Freedom of Conscience) he has written recently about Section 3 of the 14th Amendment for the Volokh Conspiracy.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- William Baude & Michael Stokes Paulsen, “The Sweep and Force of Section Three” (Aug. 2023)
- Mark Graber, “Their Fourteenth Amendment, Section 3 and Ours,” Just Security (Feb 2021)
- Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War (2023)
- Michael McConnell, Responding About the Fourteenth Amendment, “Insurrection,” and Trump, Volokh Conspiracy (Aug. 2023)
Excerpt from Interview
On discussing whether disqualifying Trump from re-election would be beneficial.
Jeffrey Rosen: Thoughtful suggestion of how the court views President Trump may help shape its pragmatic ruling which, which raises the question squarely. Michael McConnell, would disqualifying President Trump be prudent or not?
Michael McConnell: Oh, I'd rather throw that over to the political scientist among us. It would not go down easily.
Jeffrey Rosen: Judiciously stated. Mark Graber, would it be prudent or not?
Mark Graber: Well, first to remind Michael, those who can do, those who can't teach, which explains a good deal of why many of us become political scientists. But my own sense, and here's something we don't know, is MAGA a cult of personality or is it a genuine political movement? To the extent you think it is a cult of personality, cutting off the head of the personality reduces the movement. To the extent you think it's a genuine political movement brought on by a lot of forces, all cutting off the head does is make those people even angrier.
My sense, and it's somewhat of an amateurish sense, it's somewhat in between. In the long run, if you are anti-MAGA as I am, MAGA must be defeated at the ballot box. What Donald Trump stands for must be defeated by election. But that's not to say if you think that Donald Trump is exceptional in his disregard for democratic politics, that the United States can't do what a lot of other countries and say, "Guess what? If you have such contempt for democratic politics that while in office or after holding office you participate in an insurrection, you are disqualified and we'll deal with your political movement and saner leaders at a different time and place."
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