Last month, the Colorado Supreme Court and the Maine Secretary of State determined that President Trump “engaged in an insurrection” after taking an oath to uphold the Constitution and that he is therefore disqualified from serving as president under Section 3 of the 14th Amendment. In this episode, professors Josh Blackman of the South Texas College of Law Houston and Gerard Magliocca of the Indiana University Robert H. McKinney School of Law dive into the meaning and purpose of Section 3 of the 14th Amendment and the arguments for and against Trump’s eligibility to run for a second term this fall. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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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
Gerard Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law, is the author of four books and over 20 articles on constitutional law and intellectual property, including American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013) and his most recent book, Washington's Heir: The Life of Justice Bushrod Washington (2022). He has written extensively on the history and application of Section 3 of the 14th Amendent.
Josh Blackman is a professor of law at the South Texas College of Law Houston, where holds the Centennial Chair of Constitutional Law. His latest book, An Introduction to Constitutional Law, was a top-five bestseller on Amazon; he has also written more than five dozen law review articles. He co-filed several briefs with Seth Barrett Tillman on the application of Section 3 of 14th Amendment to President Trump’s case.
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:
- Jeffrey Rosen, “The Supreme Court’s Election Dilemma,” WSJ (Jan. 5, 2024)
- Gerard Magliocca, “Background as Foreground: Section Three of the Fourteenth Amendment and January Sixth,” (Dec. 21, 2022)
- Gerard Magliocca, “Amnesty and Section Three of the Fourteenth Amendment,” (July 20, 2021)
- Gerard Magliocca, “What the Supreme Court Should Not Do in Trump’s Disqualification Case,” NY Times (Jan. 5, 2024)
- Josh Blackman & Seth Tillman, “Sweeping and Forcing the President into Section Three,” (Sept. 19, 2023)
- Josh Blackman & Seth Tillman, “Is the President an ‘Officer of the United States’ for Purposes of Section 3 of the Fourteenth Amendment?” (Dec. 20, 2021)
- Josh Blackman & Seth Tillman, Amicus Brief in Support of Trump in Trump v. Anderson
- Griffin’s Case (1869)
- The Slaughterhouse Cases (1873)
- Bradwell v. Illinois (1873)
Excerpt from Interview: Gerard Magliocca on concern that the Supreme Court might delay deciding on the case related to Section 3 and advocating for a timely resolution.
Gerard Magliocca: Well, I'm worried that they might, and for the reasons, largely that Josh has stated. So, the inclination not to decide this case might lead them to say, "Hey, why don't you come back to us after the Republican convention if Trump is the nominee? Or, why don't you come back to us after November if Trump wins because maybe neither of those things or one of those things won't happen?" Now, one way they could get to that which we haven't discussed so far is the argument that, "Well, maybe you can't hold office under Section 3, but you can run for office." So the running part, you have to let everybody run. And so then you can't really resolve it until the election is over. Now, I can understand why somebody might find that appealing. But if we had not had January 6th 2021, we might say, "Well, hey, let the joint session do it. That seems fine. That's something that 12th Amendment seems to contemplate," and so on.
But now, we've seen it in action once and we've seen how bad that can become and it would be worse the next time. So to say, "Either it's a political question, only Congress can decide in, in the joint session." Or to say, "Look, we can't do anything about it until after the election. So there's like this very narrow time window between November and January that where this will all get resolved somehow, or else a joint session has to resolve it." Those are both alternatives that are gonna be very unattractive because of what occurred on January 6 of 2021.
There is a plausible argument for the kind of idea of, "You can run for office, but you can't hold office." I just think that's unworkable and looks very different, frankly now than it would have looked in 2019, if we had been having this conversation. I certainly hope that they won't do that. And I would add that I hope that you don't get a situation even where say there's just a concurring opinion that forms the fifth vote that says that. Because you could just have one or two of them saying that and that might lead to us all being back here in November, or December or whatever, kind of discussing this all over again. I just think that that's not where we need to go. We need to have this resolved now.
Excerpt from Interview: Josh Blackman on the distinction between raising the Constitution as a defense versus seeking affirmative relief against the government.
Josh Blackman: This is a point that's more of federal courts and about Section 3. But the Constitution when we say it's self-executing really has two different meanings. So for example, if the police prosecute you, and they decide to deny you some right, for example, they try to admit evidence that was seized illegally, or perhaps they beat you in their custody, and they're prosecuting you. You can always raise the Constitution as a defense that is, "The government's prosecuting me for some crime, but in the course of this prosecution, you know, they violate the 4th Amendment. They violate the 5th Amendment. They did something wrong." You don't need any sort of federal legislation to raise the constitution of defense. Everyone agrees about that.
What if you want to go on the offense? That is, what if you wanna seek some sort of affirmative relief against the government for violating the Constitution, you need what's called the cause of action. And we have that, it was called Section 1983. There's a statue that traces its roots to reconstruction. There was an act shortly after the 14th Amendment was passed in various forms. And this says that if any state official deprives you of your rights under the color of law, and you can go seek a remedy against that official. We've always had section 1983. So we've never really had to think about this distinction, but it's been there for a very long time.
What happened in Davis's case and what happened to Chase's case reflects this distinction. In the case of Jefferson Davis, it was a criminal prosecution. And Davis made an argument that perhaps you might find strange, they said that Section 3 displaced any possible treason prosecution. In other words, because Davis says, "I can't hold any sort of future office. You can't prosecute for treason, that's the sole punishment." Now he might right, might be wrong, but he's saying, "As a criminal prosecution a defense is you can't raise it." Whereas in Griffin's case, it was what's called a habeas case. Who was Griffin? Gerard's written about this. He was a man, a Black man who was charged with shooting someone else, he didn't kill them, but he tried to shoot someone else, as it seems the guy almost got lynched for it. Right? He was seeking habeas relief in federal court. And what Chase was saying is you need some sort of statute in order to say that the judge who sentenced Griffin was disqualified.
So these cases can be reconciled. There's a point a federal court's not really a question of Section 3. I will just put you in some little bit of caution. We don't exactly know what Chase said during the Jefferson Davis trial. Right. A- and this sort of gets into the weeds, the director had two versions of the case have ever reported. One report in 1869, where Chase said absolutely nothing about whether Section 3 requires federal legislation. And there was another version of the case reported some years later, maybe even after Chase's death. That said, "The Chief Justice told the reporter to put on the record that Section 3 executes its own force." I caution slightly because the reporter of that case is not the most reliable person.
Number one, he was actually the lawyer in Griffin's case, it's a bit of a coincidence, but more importantly, he was a former Confederate General, who apparently tried to kidnap Abraham Lincoln. He might have had an incentive to, perhaps, give Jefferson Davis more credit than he was do. We don't know why that sentence was there. It was not reported the time. But even if it's there, I think you can reconcile these based on a fairly deeply rooted aspect of Federal Court jurisprudence.
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