Justice  /  Comment

When Constitutional-Law Professors Fight

On the folly of relying on history to settle the debate over whether the Fourteenth Amendment should bar Trump from office.

Utter division now prevails between equally well informed and highly regarded law professors over the applicability of Section Three of the Fourteenth Amendment to the presidential candidacy of Donald Trump. (In case you’re not sick of hearing it: The section bars anyone who has sworn an oath as an officer of any government within the United States, and has then committed or aided insurrection or rebellion against the United States, from holding office in any such government.) Lawyers are supposed to differ, of course. An adversarial legal system requires resolving differences in verdicts rendered by judges and juries in light of competing arguments made on the basis of established rules of evidence, but the differences among professors over Section Three, as aired out in op-eds and magazine articles, aren’t being argued on the basis of any such rules. Weapons in this argument include competing assertions, competing definitions of terms, and competing hypotheticals regarding century- and two-century-old history.

And the audience for the argument isn’t a judge or jury but us, the public. Since we can’t reasonably be persuaded, given the style of argument, of either position, we’re likely to go with whichever seems likelier to lead to a political outcome we prefer. That’s not thinking constitutionally, but the nature of both the constitutional argument and Section Three itself may lead inevitably to appealing to the Constitution in this decidedly anti-constitutional way.

One of the most sophisticated manifestations of the phenomenon I'm talking about can be found in an article by Steven Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, published in “The Volokh Conspiracy,” hosted by Reason magazine (see “Further Reading,” below). Calabresi is arguing against the position taken in a piece, also published there, by Ilya Somin, Professor of Law at George Mason University. Here are two highly credentialed professors, both comfortable under the Volokh imprimatur—it’s loose enough to accommodate such differences, but it leans, as the site says, libertarian—at odds not just over the applicability of the section in this case but over what the section fundamentally means, in all cases.

Calabresi believes that Section Three of the Fourteenth applies only to insurrections and rebellions “akin,” as he puts it, “to the Civil War” and therefore not to the attack on the electoral certification process in the Capitol on January 6, 2021.

Somin believes the January 6 attack fulfills the constitutional definition of both “insurrection” and “rebellion” under Section Three.

I, for what it’s worth, find it easy to agree that the January 6 attack was categorically different from the Civil War (Calabresi) and that the terms “rebellion” and “insurrection” apply to the attack (Somin), but does any of that matter, when it comes to assessing grounds for applying the section, or really to understanding the Constitution operationally at all?