A few weeks ago, Will Baude and Michael Paulsen dropped a legal bomb on the 2024 presidential race by arguing that former President Donald Trump is constitutionally ineligible for a second term in office.  They base their argument on Section 3 of the Fourteenth Amendment, which prohibits individuals from holding certain offices if they “engaged in insurrection” after taking an oath to support the Constitution.  

Preliminarily, I disagree with their understanding of the term “insurrection.”  Under traditional principles of law, an insurrection occurs when there is a popular uprising so severe and widespread that “it infects the majority of the inhabitants of a city or province, and gains such strength that even the sovereign is no longer obeyed.”  Vattel, Law of Nations, § 289, p. 422; see, e.g., In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894) (“Insurrection is a rising against civil or political authority,— the open and active opposition of a number of persons to the execution of law in a city or state.”).  That hardly describes the localized disorder at the United States Capitol by protestors supporting the reelection of Donald Trump.  Although a few protestors were violent, most came unarmed and their most serious criminal acts were trespassing at the Capitol and boisterously disrupting the vote count. 

Baude and Paulsen, however, take a more capacious understanding of insurrection, claiming that the term applies to any “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect” (p. 64).  Directly combating this broad definition is difficult because “[t]he term ‘insurrection’ is one in a large measure incapable of exact legal definition, more or less elastic in its meaning.”  The common law had no crime labeled “insurrection.”  English and early American law treated insurrections either as constructive treason or riots depending upon whether the object of the insurgency was public or private.  With “insurrection” having no firm legal definition, those who agree with Baude and Paulsen’s argument are unlikely to be convinced by strong circumstantial evidence that their definition is too capacious.

Consequently, I want to raise a separate question that arises from their analysis whether President Trump engaged in insurrection on January 6.  Is the President of the United States, as the chief executive officer of the government, legally capable of committing an “insurrection” against that government?  I have not heard the term “insurrectionist” applied to a person vested with the supreme executive authority of a jurisdiction.  When the executive exercises unconstitutional power, he is referred to as a usurper instead.

Let’s return to the events of January 6.  Baude and Paulsen describe these events as “dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for states’ selection of electors President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several states; the efforts of Members of Congress to reject voters lawfully cast by electors; and, finally, the fomenting and incitement of a mob that attempted to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes.”  (Baude & Paulsen, p. 112).

Without denying that such conduct may be illegal or unconstitutional, I am not sure that it meets the true legal definition of an “insurrection.”  As Vattel’s definition describes, an insurrection occurs when a widespread disorder makes it impossible for a sovereign to execute the laws within a city or a state.  See also Black’s Law Dictionary, 2d. ed., p. 643 (defining an insurrection as “[a] rebellion, or rising of citizens or subjects in resistance to the government”).  An insurrection, thus, involves individuals who are not clothed with governmental authority and who resist the execution of the laws or, in the case of mutiny, individuals who are clothed with subordinate government authority and who rise against their superiors.  See Black’s Law Dictionary, 2d. ed., p. 800 (defining “mutiny” as “[a]n insurrection of soldiers or seamen against the authority of their commanders”).  A “usurpation,” in contrast, is “the assumption of government or supreme power by force or illegality, in derogation of the constitution and of the rights of the lawful ruler.”  Black’s Law Dictionary, 2d ed. p. 1192.  

The Framing generation seemingly distinguished between a “usurpation” and an “insurrection.”  Consider, for example, Federalist Number 28, in which Alexander Hamilton discusses the necessity for a broad national military power.  Hamilton begins with a discussion about insurrection.  His discussion exclusively concerns private persons rising up against the government, such as in Shays’s Rebellion, to which Hamilton alludes.  After discussing insurgencies, Hamilton considers the opposite danger:  that national government officials will use military power to violate the constitutional limitations on their rule.  He does not label such conduct as an insurrection against the government.  He refers to such hypothetical events, instead, as “usurpations of the national rulers.”  

The threat of usurpation was a central motivating factor in securing the right to keep and bear arms in the Second Amendment.  As Hamilton explains, when a usurpation happens, then “there is no resource left but in the exertion of that original right of self-defence, which is paramount to all positive forms of government.”  Justice Story, in his Commentaries on the Constitution, further explained that the right to bear arms “offers a strong moral check against the usurpation and arbitrary power of rules; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them” (§ 1890).  Note, again, that Justice Story does not label this unconstitutional exercise of power as an “insurrection” by the executive against the United States.

Indeed, an insurrection by the president would present strange legal questions.  Under Article I, Section 8, Congress may “provide for calling forth the Militia to . . . suppress Insurrections.”  But Article II makes the president commander-in-chief of the militia once called into federal service.  So if the president were an insurgent, could Congress vest the commander-in-chief power in someone else and order that person to suppress the president’s insurrection?  Obviously not.  Neither the Constitution, nor British common law, entertained the possibility that the supreme executive officer could be an insurgent.

Thus, it may be that President Trump could not rise against the government authority because, on January 6, 2021, he was vested with the supreme executive authority of the United States under Article II of the Constitution.  No one doubts that President Trump was the legitimate president on January 6, 2021.  He was duly elected by the electoral college in December 2016.  Under the Twentieth Amendment, his term did not expire until noon on January 20, 2021.  To have an insurrection, Trump would have had to rise against his own executive authority.  That is an impossibility.

In their 126-page tome, Baude and Paulsen fail to give one example in which the de jure supreme executive officer of a jurisdiction was deemed an insurgent within that jurisdiction.  Now, perhaps they will argue that such a category is impossible under the British constitution because the Crown is vested with sovereign immunity.  But King Charles I was executed for treason during the English Civil Wars.  Was his conduct described as insurrectionist?  Additionally, they can examine many other executive officers who lack the personal immunity retained by the Crown.  Has it ever been the case in any Anglo-American jurisdiction in which a governor was deemed an insurgent against his own state or province?  Can they find a single treatise indicating that the supreme executive authority may be treated as an insurgent?  

In an exchange of Tweets, Baude inquired into whether a Confederate governor would have been an insurgent during the Civil War.  My answer is absolutely.  A governor is not vested with the authority of the United States, and the federal government, within its sphere of power, is the supreme authority within the country.  No doubt the supreme authority of an inferior government may commit an insurrection against the superior.

Perhaps a stronger objection would be that the president can commit insurrection because insurrection may be a form of treason and the Constitution recognizes that the president may commit treason.  Article II, Section 4 provides that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason.”  Article III defines treason as either “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.”  As Hawkins explains, “an insurrection in order to redress a public grievance, whether it be a real or pretended one” is a form of levying war.  1 Hawkins, Pleas of the Crown, § 25, p. 11–12 (8th ed. 1824).  (Note that some commentators have suggested that Civil War-era statutes prohibiting insurrections and forcible resistance to the laws have replaced the doctrine of constructive treason in the United States.)  

But this response is not dispositive.  In recognizing that a president could commit treason, Article II does not enumerate exactly which kinds of treason would be applicable to the president.  Clearly, a president could adhere to enemies and give them aid and comfort, such as by surrendering U.S. troops or a fort.  The president may also be able to commit treason by levying war against the United States for the purpose of overthrowing the government.  During the English Civil War, the charges against King Charles I sound of this nature.  But that does not mean that either the Framers or the authors of the Fourteenth Amendment would have understood that the president, while he continued in office, could qualify as an insurrectionist.  

My uncertainty about whether a chief executive may commit “insurrection” under the law brings me to my final point.  The legitimacy of a judicial removal of a political candidate from the consideration of the electorate is a most serious constitutional question.  Challengers are rushing to get rulings removing former President Trump from the 2024 ballot.  Some academics have called upon courts to decide these Section 3 cases quickly.  (See this article by Bruce Ackerman, for example.)  On the surface, Baude and Paulsen’s article may present an enticing legal argument to prevent a Biden-Trump rematch.  But their arguments raise serious unresolved questions, and (as Kurt Lash details in a different response), the law they purport to explicate is far from clear.  Moreover, there are jurisdictional questions about whether the power to disqualify someone from holding office under Section 3 should be vested in the courts or the political branches.  In the face of the tremendous political stakes and the legal uncertainty that pervades this area, courts would be advised to borrow the advice of Walter White:  “maybe [their] best course would be to tread lightly.”

My thanks to Josh Blackman, Nelson Lund, Julia Mahoney, and Paolo Saguato for comments on earlier drafts of this post. Updated with a correction.