Republished with full copyright permissions from The San Francisco Press.

It has become a polarizing and contentious debate. Two 126-page scholarly works by legal experts present divergent arguments on whether Donald Trump is eligible to run for the presidency again under Section 3 of the Fourteenth Amendment to the Constitution. The arguments put forth by Professors Nelson Baude, Michael Paulsen, Josh Blackmun, and Seth Barrett Tillman have captured the attention of legal scholars and political observers, further fueling the already fiery discussion.

Section 3 of the Fourteenth Amendment prohibits individuals who engaged in insurrection and had previously taken an oath as a member of Congress, an officer of the United States, a member of any State legislature, or an executive or judicial officer of any State from running for the presidency or other offices. The question at hand is whether the role of the president itself qualifies as serving as an “officer of the United States.”

Baude and Paulsen dedicate a fraction of their extensive works to explaining their perspective. They argue that the straightforward interpretation of Section 3 supports the notion that the president is an “officer of the United States.” They further highlight that Articles II and VI of the Constitution require government officials to take oaths to uphold the Constitution, and therefore, the disqualification provision of Section 3 should reasonably extend to those officials required to take such oaths. Additionally, Baude and Paulsen posit that Section 3 aimed to comprehensively disqualify insurrectionists from seeking public office.

In opposition, Blackmun and Tillman present compelling counterarguments. They contend that there is contemporaneous evidence suggesting that the drafters of Section 3 did not consider the president to be an “officer of the United States.” They further assert that the disqualification clause of Section 3 should only apply to oaths mandated by Article VI of the Constitution, excluding the oaths required under Article II. Additionally, they point out that various other provisions in the Constitution explicitly exclude the president and vice president from the category of “officers of the United States.”

Certainly, these arguments hold weight. For instance, the Impeachment Clause of the Constitution specifies that the president, vice president, and all civil officers of the United States shall be removed from office upon impeachment and conviction. This distinction implies that the president and vice president are not considered among the “civil officers of the United States.”

Harvard Professor Lawrence Lessig recently penned a thought-provoking column in Slate, arguing against the disqualification of Trump under Section 3. He raises concerns about the potential slippery slope of determining what qualifies as engaging in insurrection under the Constitution. Lessig emphasizes that the law must have a consistent interpretation that is not overtly partisan and should apply regardless of political affiliations.

Politicians will inevitably exploit this debate to suit their own agendas. However, for those genuinely seeking an unbiased understanding of the disqualification question, it is apparent that thoughtful examination and further analysis lie ahead. As we look towards the 2024 election, the intricate discussions and analysis surrounding this issue will undoubtedly continue to evolve.