PROFILE
As originalists, that meant understanding what the drafters of Section Three meant when they used the terms insurrection and rebellion, which entailed poring over 1860s legal dictionaries and Abraham Lincoln’s speeches. After years of working through the issues, Baude and Paulsen concluded that Section Three did indeed have force. Their 126-page draft article was posted on the Social Science Research Network (SSRN) website in early August 2023. Shortly thereafter, the SSRN server crashed, as the article was downloaded more than a hundred thousand times. “We received a deluge of media invitations,” Paulsen said: “Anderson Cooper, Chuck Todd, NBC Nightly News, CNN…and we decided not to do that. We’re not talking heads or commentators or political activists.” And then, about a month later, came the lawsuits to take Trump off the ballot, most notably one in Colorado, which cited Baude and Paulsen’s article multiple times. Amar, the Yale professor, said, “It’s the most important article ever written about the Fourteenth Amendment, Section Three.” He also said that without it, those cases would not have been brought. Paulsen disagreed, in part, saying some lawsuits probably would have happened. “But there was something about two conservatives, two Federalist Society members, originalists, who said, ‘There’s actually something to
Paulsen was invited to speak in Paris last fall to members of the Cercle Droit et Liberte, an organization of conservative lawyers dedicated to the promotion and defense of civil liberties in France. He discussed, “The American Constitutional System of Presidential Elections and Constitutional Issues Surrounding the Presidential Election of 2024.”
this,’ that caused some people to sit up and take notice.”
commentary, discussion, and litigation has caused us to revise our core propositions,” they wrote in a series of essays published by reason.com in February, prior to the Court’s ruling, in which they responded to comments and objections on their paper.
In December 2023, the Colorado Supreme Court ruled that the former president was disqualified from appearing on the state’s presidential primary ballot, and Trump appealed that decision to the U.S. Supreme Court. The Court heard oral arguments on February 8, about 10 days before the University of Pennsylvania Law Review formally published “The Sweep and Force of Section Three.” On March 4, the U.S. Supreme Court reversed Colorado’s decision, ruling unanimously that states could not disqualify federal candidates under Section Three. A majority opinion went on to say that such disqualifications required legislation from Congress. Though the outcome was widely expected, Baude and Paulsen remain steadfast in support of their analysis. “Nothing in the ensuing
Still, some may wonder if the article was worth doing.
“Oh, absolutely!” Paulsen said. After all, he said, he and Baude didn’t start out with a particular agenda: “We were just intrigued by an interesting set of difficult constitutional questions.” And by exploring those questions, they sparked a national conversation about current-day implications of a little-known constitutional provision designed generations ago to protect our democracy. Meanwhile, Professor Paulsen has more to say about the Constitution. The working title of his next article? “The Power to Declare Peace.”
Spring 2024 Page 17
Powered by FlippingBook