Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In 1867, Senator Charles Sumner described the Guarantee Clause as "a sleeping giant" awakened by the Civil War that gave Congress the power to erase slavery's stain. In 2023, Section Three of the Fourteenth Amendment is the sleeping giant awakened by the January 6th insurrection (and by Will Baude and Michael Stokes Paulsen) that gives courts the power to erase Donald Trump's stain.
I am very grateful for the excellent new article by Professors Baude and Paulsen and for the incredible response to their work. (Over 28,000 downloads by last count!) Until recently, only a hanful of scholars took Section Three and its application to Trump seriously. (Mark Graber, Bruce Ackerman, Josh Blackman, Seth Barrett Tillman, and myself). Five is great for a dinner party, but not for considering a vital constitutional question. We need a lot more discussion to help the Supreme Court and the country reach the best decision possible. And make no mistake--this issue will be at the Court soon and must be decided on the merits to avoid electoral chaos.
I am also confident that Trump will have a fair opportunity to contest the claim that he is ineligible to serve in office. I say that because I testified in the Section Three eligibility hearing for Representative Marjorie Taylor-Greene last year. She also testified, both sides were represented by able counsel, and the ALJ issued a thoughtful opinion concluding that she was eligible. His ruling was affirmed on appeal. The sky did not fall by letting state officials carry out their constitutional duties.
I'll have more to say about Baude/Paulsen and some of the responses to their paper next week.
UPDATE: I’ve tweaked this post since the first draft, in part because the download figure keeps shooting up.