Saturday, August 12, 2023

The Sleeping Giant is Awake

Gerard N. Magliocca

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. 


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