You've Got Questions? I've Got Answers

In light of the Baude/Paulsen paper, I want to address some common misconceptions about Section Three.

1.  Unless you want to indulge in a legal fiction, Section Three of the Fourteenth Amendment does not give local and state officials broad discretion to exclude candidates from the ballot. If any official, high or petty, says that Donald Trump is ineligible to run, that case is going straight to the Supreme Court. Thus, there will be a national decision creating a national standard next year.

2. A criminal insurrection conviction is unnecessary to apply Section Three. None of the reported cases on Section Three involved a person charged with or convicted of insurrection. To say that disqualification--a civil remedy--requires a criminal conviction would turn upside-down the relationship between civil and criminal law.

3. Section Three does not apply only to ex-Confederates. The language is general and the Senate specifically rejected an amendment that would have limited the provision to the "late insurrection." The House of Representatives also rejected this view during World War One by applying Section Three to Representative-elect Victor Berger.

More to come . . .