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      N.H. GOP Fights 14th Amendment Bid to Bar Trump From Ballot

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      In New Hampshire, Republicans are feuding over whether the 14th Amendment bars Donald J. Trump from running for president. Other states are watching closely.New Hampshire’s first-in-the-nation primary is quickly becoming the leading edge for an unproven legal theory that Donald J. Trump is disqualified from appearing on the ballot under the 14th Amendment of the U.S. Constitution.A long-shot presidential candidate has filed a lawsuit in state court seeking an injunction to keep Mr. Trump off the ballot. And a former Republican candidate for Senate is urging the secretary of state to bring a case that could put the issue before the U.S. Supreme Court.On Wednesday, Free Speech for the People, a liberal-leaning group that unsuccessfully tried to strike House Republicans from the ballot in 2022, sent a letter to the secretaries of state in New Hampshire, as well as Florida, New Mexico, Ohio and Wisconsin, urging them to bar Mr. Trump from the ballot under the 14th Amendment.These efforts employ a theory that has been gaining traction among liberals and anti-Trump conservatives: that Mr. Trump’s actions on Jan. 6, 2021, disqualify him under Section 3 of the 14th Amendment, which bars people from holding office if they took an oath to support the Constitution and later “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”The theory has been gaining momentum since two prominent conservative law professors published an article this month concluding that Mr. Trump is constitutionally disqualified from running for office.But even advocates of the disqualification theory say it is a legal long shot. If a secretary of state strikes Mr. Trump’s name or a voter lawsuit advances, Mr. Trump’s campaign is sure to appeal, possibly all the way to the Supreme Court, where the 6-3 conservative majority includes three justices nominated by Mr. Trump.“When it gets to the Supreme Court, as it surely will, this will test the dedication of the justices to principles of law, more than almost anything has for a very long time,” said Laurence H. Tribe, a constitutional law professor at Harvard who believes the insurrection disqualification clearly applies to Mr. Trump, “because they will obviously realize that telling the leading candidate of one major political party, ‘no, no way, you’re not eligible’ is no small matter.”However long the odds of success, discussion of the amendment is bubbling up across the country. In Arizona, the secretary of state said he had heard from “concerned citizens” about the issue, and the Michigan secretary of state said she was “taking it seriously.” In Georgia, officials are looking at precedent set by a failed attempt to use the 14th Amendment to disqualify Representative Marjorie Taylor Greene from the ballot in the 2022 midterms.But New Hampshire has jumped out as the early hotbed of the fight.The New Hampshire Republican Party said this week that it would challenge any effort to remove Mr. Trump, or any other candidates who have met requirements, from the ballot.“There’s no question that we will fight, and we’ll use all of the tools available to us to fight anyone’s access being denied on the ballot,” said Chris Ager, a Republican state committeeman in New Hampshire. “And if there’s a lawsuit, we are likely to intervene on behalf of the candidate to make sure that they have access. So we take it very seriously that the people of New Hampshire should decide who the nominee is, not a judge, not a justice system.”Chris Ager, a Republican state committeeman in New Hampshire, shaking Mr. Trump’s hand at the state party meeting in January.Doug Mills/The New York TimesLate last week, Bryant Messner, a former Trump-endorsed candidate for U.S. Senate, who goes by Corky, met with New Hampshire’s secretary of state, David M. Scanlan, to urge him to seek legal guidance on the issue. After Politico first reported the meeting, Mr. Scanlan and John M. Formella, the state’s attorney general, issued a joint statement saying that “the attorney general’s office is now carefully reviewing the legal issues involved.”Other secretaries of state have also been seeking legal guidance.“We’re taking a very cautious approach to the issue,” Arizona’s secretary of state, Adrian Fontes, said in an interview. “We’re going to be consulting with lawyers in our office and other folks who will eventually have to deal with this in the courts as well. We don’t anticipate that any decision that I or any other election administrator might make will be the final decision. This will get ultimately decided by the courts.”Adrian Fontes, Arizona’s secretary of state, said his office had already heard from “concerned citizens” regarding Mr. Trump’s eligibility under the 14th Amendment.Rebecca Noble for The New York TimesThough the argument is particularly appealing to liberals who view Mr. Trump as a grave threat, most of the recent momentum on this topic has come from conservative circles.Mr. Messner, a self-described “constitutional conservative,” said he was seeking to create case law around the issue. He said he had not yet filed a legal challenge because he first wanted the secretary of state to open up the candidate filing period and decide whether he would accept Mr. Trump’s filing. He argued that the lawsuit filed on Sunday by a Republican candidate, John Anthony Castro, was unlikely to advance because the filing period has not yet opened.“Section 3 has not been interpreted,” Mr. Messner said in an interview. “So, my position is let’s find a way for this to get into the court system as soon as possible. And then hopefully we can expedite through the legal system, to get it to the Supreme Court as soon as possible.”The precedent is by no means settled. A case filed against then-Representative Madison Cawthorn, Republican of North Carolina, ended with Judge Richard E. Myers II of U.S. District Court, an appointee of Mr. Trump, siding with Mr. Cawthorn. The judge ruled that the final clause of Section 3 allowed for a vote in Congress to “remove” the disqualification and that the passage of the Amnesty Act of 1872 effectively nullified the ban on insurrectionists.But on appeal, the U.S. Court of Appeals for the Fourth Circuit overruled that argument, saying the Amnesty Act clearly applied only to confederates, not future insurrectionists. The case was declared moot after Mr. Cawthorn lost his re-election in the 2022 primaries.Other cases may also come into play. An administrative law judge in Georgia ruled that plaintiffs failed to prove that Ms. Greene, Republican of Georgia, was in fact an insurrectionist. And cases against Representatives Paul Gosar and Andy Biggs, Republicans of Arizona, were similarly dropped.Advocates of the disqualification clause fear that judges and secretaries of state could decide that any case against Mr. Trump will have to wait until a jury, either in Fulton County, Ga., or Washington, D.C., renders judgment in the two criminal cases charging that Mr. Trump had tried to overturn the 2020 election.Secretary of State Brad Raffensperger of Georgia indicated that previous cases involving Ms. Greene would continue to guide his office, and that “as secretary of state of Georgia, I have been clear that I believe voters are smart and deserve the right to decide elections.”“In Georgia, there is a specific statutory process to follow when a candidate’s qualifications for office are challenged,” Mr. Raffensperger said in a statement. “The secretary of state’s office has and will continue to follow the appropriate procedures in state law for any candidate challenges.”There has been one settled case since Jan. 6 that invoked the 14th Amendment. In September, a judge in New Mexico ordered a county commissioner convicted of participating in the Jan. 6 riot removed from office under the 14th Amendment. He was the first public official in more than a century to be barred from serving under a constitutional ban on insurrectionists holding office. More

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      Appeasing Donald Trump Won’t Work

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      I’m going to begin this column with a rather unusual reading recommendation. If you’ve got an afternoon to kill and want to read 126 pages of heavily footnoted legal argument and historical analysis, I strongly recommend a law review article entitled “The Sweep and Force of Section Three.” It’s a rather dull headline for a highly provocative argument: that Donald Trump is constitutionally disqualified from holding the office of president.In the article, two respected conservative law professors, William Baude and Michael Stokes Paulsen, make the case that the text, history and tradition of Section 3 of the 14th Amendment — a post-Civil War amendment that prohibited former public officials from holding office again if they “engaged in insurrection or rebellion” or gave “aid or comfort” to those who did — all strongly point to the conclusion that Trump is ineligible for the presidency based on his actions on and related to Jan. 6, 2021. Barring a two-thirds congressional amnesty vote, Trump’s ineligibility, Baude and Paulsen argue, is as absolute as if he were too young to be president or were not a natural-born citizen of the United States.It’s a fascinating and compelling argument that only grows more compelling with each painstakingly researched page. But as I was reading it, a single, depressing thought came to my mind. Baude and Paulsen’s argument may well represent the single most rigorous and definitive explanation of Section 3 ever put to paper, yet it’s difficult to imagine, at this late date, the Supreme Court ultimately either striking Trump from the ballot or permitting state officials to do so.As powerful as Baude and Paulsen’s substantive argument is, the late date means that by the time any challenge to Trump’s eligibility might reach the Supreme Court, voters may have already started voting in the Republican primaries. Millions of votes could have been cast. The Supreme Court is already reluctant to change election procedures on the eve of an election. How eager would it be to remove a candidate from the ballot after he’s perhaps even clinched a primary?While I believe the court should intervene even if the hour is late, it’s worth remembering that it would face this decision only because of the comprehensive failure of congressional Republicans. Let me be specific. There was never any way to remove Trump from American politics through the Democratic Party alone. Ending Trump’s political career required Republican cooperation, and Republicans have shirked their constitutional duties, sometimes through sheer cowardice. They have punted their responsibilities to other branches of government or simply shrunk back in fear of the consequences.In hindsight, for example, Republican inaction after Jan. 6 boggles the mind. Rather than remove Trump from American politics by convicting him in the Senate after his second impeachment, Republicans punted their responsibilities to the American legal system. As Mitch McConnell said when he voted to acquit Trump, “We have a criminal justice system in this country.” Yet not even a successful prosecution and felony conviction — on any of the charges against him, in any of the multiple venues — can disqualify Trump from serving as president. Because of G.O.P. cowardice, our nation is genuinely facing the possibility of a president’s taking the oath of office while also appealing one or more substantial prison sentences.Republicans have also punted to the American voters, suggesting that any outstanding questions of Trump’s fitness be decided at the ballot box. It’s a recommendation with some real appeal. (In his most recent newsletter, my colleague Ross Douthat makes a powerful case that only politics can solve the problem of Donald Trump.) “Give the people what they want” is a core element of democratic politics, and if enough people “want” Trump, then who are American politicians or judges to deprive them? Yet the American founders (and the drafters of the 14th Amendment) also knew the necessity of occasionally checking the popular will, and the Constitution thus contains a host of safeguards designed to protect American democracy from majorities run amok. After all, if voting alone were sufficient to protect America from insurrectionist leaders, there would have been no need to draft or ratify Section 3.Why are Republicans in Congress punting to voters and the legal system? For many of them, the answer lies in raw fear. First, there is the simple political fear of losing a House or Senate seat. In polarized, gerrymandered America, all too many Republican politicians face political risk only from their right, and that “right” appears to be overwhelmingly populated by Trumpists.But there’s another fear as well, that imposing accountability will only escalate American political division, leading to a tit-for-tat of prosecuted or disqualified politicians. This fear is sometimes difficult to take seriously. For example, conservative podcaster Ben Shapiro raised it, arguing that “running for office now carries the legal risk of going to jail — on all sides.” Yet he had himself written an entire book calling for racketeering charges against Barack Obama.That said, the idea that vengeful MAGA Republicans might prosecute Democrats out of spite is credible enough to raise concerns outside the infotainment right. Michael McConnell, a conservative professor I admire a great deal (and one who is no fan of Donald Trump), expressed concern about the Section 3 approach to disqualifying Trump. “I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot,” he wrote, adding, “Imagine how bad actors will use this theory.”In other words, Trump abused America once, and the fear is that if we hold him accountable, he or his allies will abuse our nation again. I think Professor McConnell’s warnings are correct. Trump and his allies are already advertising their plans for revenge. But if past practice is any guide, Trump and his allies will abuse our nation whether we hold him accountable or not. The abuse is the constant reality of Trump and the movement he leads. Accountability is the variable — dependent on the courage and will of key American leaders — and only accountability has any real hope of stopping the abuse.A fundamental reality of human existence is that vice often leaves virtue with few good options. Evil men can attach catastrophic risks to virtually any course of action, however admirable. But we can and should learn lessons from history. George Washington and Abraham Lincoln, two of our greatest presidents, both faced insurrectionary movements, and their example should teach us today. When Washington faced an open revolt during the Whiskey Rebellion in 1794, he didn’t appease the rebels, instead mobilizing overwhelming force to meet the moment and end the threat.In 1861, Lincoln rejected advice to abandon Fort Sumter in South Carolina in the hope of avoiding direct confrontation with the nascent Confederate Army. Instead, he ordered the Navy to resupply the fort. The Confederates bombarded Sumter and launched the deadliest war in American history, but there was no point at which Lincoln was going to permit rebels to blackmail the United States into extinction.If you think the comparisons to the Whiskey Rebellion or the Civil War are overwrought, just consider the consequences had Trump’s plan succeeded. I have previously described Jan. 6 as “America’s near-death day” for good reason. If Mike Pence had declared Trump the victor — or even if the certification of the election had been delayed — one shudders to consider what would have happened next. We would have faced the possibility of two presidents’ being sworn in at once, with the Supreme Court (and ultimately federal law enforcement, or perhaps even the Army) being tasked with deciding which one was truly legitimate.Thankfully, the American legal system has worked well enough to knock the MAGA movement on its heels. Hundreds of Jan. 6 rioters face criminal justice. The movement’s corrupt lawyers face their own days in court. Trump is indicted in four jurisdictions. Yet all of that work can be undone — and every triumph will turn to defeat — if a disqualified president reclaims power in large part through the fear of his foes.But the story of Washington and Lincoln doesn’t stop with their decisive victories. While 10 members of the Whiskey Rebellion were tried for treason, only two were convicted, and Washington ultimately pardoned them both. On the eve of final victory, Lincoln’s second Inaugural Address contained words of grace that echo through history, “With malice toward none, with charity for all.”Victory is not incompatible with mercy, and mercy can be indispensable after victory. But while the threat remains, so must the resolve, even if it means asking the Supreme Court to intervene at the worst possible time. Let me end where I began. Read Baude and Paulsen — and not just for their compelling legal argument. Read and remember what it was like when people of character and conviction inhabited the American political class. They have given us the tools to defend the American experiment. All we need is the will.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      When the Law Is Not a Trump Card

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      The multiplying indictments of Donald Trump, I argued a couple of weeks ago, are putting an end to all attempts to simply practice normal politics in 2024. For both his Republican primary opponents and eventually President Biden, the ongoing efforts to put a former president in prison will shape and warp and shadow every effort to make more prosaic political arguments against a Trump restoration.But there is a corollary to this point, brought home by the conjunction of this week’s Georgia indictment and an argument from two conservative legal scholars that the 14th Amendment’s third article, aimed at excluding Confederates who had betrayed oaths to the Union from political office, should apply to Trump after the events of Jan 6. If the legal challenges against Trump have the power to shape the democratic politics of 2024, the shaping power also works the other way. As extraordinary judicial proceedings alter democratic politics, the legal arena is inevitably politicized as well, undermining its claim to standing some distance outside and above democratic realities.This isn’t a judgment on the legal merits of any of the Trump indictments. It doesn’t matter how scrupulous the prosecutor, how fair-minded the judge; to try a man, four times over, whom a sizable minority of Americans believe should be the next president, is an inherently political act. And it is an especially political act when the crimes themselves are intimately connected to the political process, as they are in the two most recent indictments.The prosecutions seek to demonstrate that not even a president is above the law. But if Trump is indeed the Republican nominee, the proceedings against him will potentially end by subjecting the judicial to the political, the law to raw politics, because millions of Americans can effectively veto the findings of the juries by simply putting Trump in the White House once again. And even if they do not make that choice (I think they probably won’t), even if the polls currently overestimate Trump’s strength (I think they probably do), the entire election will still be an object lesson in the supremacy of the political, because everyone will see that the court rulings aren’t actually final, that political combat is stronger than mere law.You can see all that and still support Trump’s prosecutions as a calculated but necessary risk — in the hopes that having him lose twice, in the courts and at the ballot box, will re-establish a political taboo against his kind of postelection behavior and on the theory that this outcome is worth the risk that the whole strategy will fail completely if he wins.If you see things that way, good; you see clearly, you are acting reasonably. My concern is that not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card — that with the right mix of statutory interpretation and moral righteousness, you can simply bend political reality to your will.Certainly that’s my feeling reading the argument that the 14th Amendment already disqualifies Trump from the presidency and that indeed no further legal proceedings — no trial for rebellion or treason, no finding of guilt — are necessary for state officials to simply exclude him from their ballots.The authors of this notable argument, William Baude and Michael Stokes Paulsen, are serious conservative legal scholars of the originalist persuasion, and their claims are couched in close attention to the text of the amendment and its history. Since I am not a legal scholar, the fact that I do not find these arguments remotely plausible can be partially discounted, so I would direct you first to two different critiques: one from a conservative scholar and friend of the authors, Stanford’s Michael McConnell, and one from a critic of originalism, Georgia State’s Eric Segall.McConnell suggests that to avoid giving the 14th Amendment’s provisions a dangerously anti-democratic breadth, such that all manner of normal democratic dissent and rabble-rousing could be deemed disqualifying, we should assume that they refer to a large-scale insurrection, military rebellion or explicit civil war. Applying them to a political protest-turned-riot, even a riot that disrupted the transfer of presidential power, risks a serious abuse of power — “depriving voters of the ability to elect candidates of their choice” — without adequate limitations on its use.Meanwhile, Segall questions the authors’ claim that the amendment’s provisions are “self-executing,” that they can be applied to Trump or any other supposed insurrectionist immediately. He points out that this interpretation was already rejected in 1869 by Salmon Chase, then the chief justice of the United States, one year after the amendment’s ratification in the only ruling we have on this question. This is acknowledged by Baude and Paulsen, to be sure, who argue at length that Chase was wrong. But they are still in the dubious position of claiming that theirs is the true “original” reading of the amendment, seeking some way to deal with the problem of Donald Trump a century and a half later, rather than the reading offered at the time of ratification that has stood unchallenged since.Then here is the point that I, a non-scholar, want to make (though I should note that Segall makes it as well): Even if Baude and Paulsen were deemed correct on some pure empyrean level of constitutional debate, and Salmon Chase or anyone else deemed completely wrong, their correctness would be unavailing in reality, and their prescription as a political matter would be so disastrous and toxic and self-defeating that no responsible jurist or official should consider it.The idea that the best way to deal with a demagogic populist whose entire appeal is already based on disillusionment with the established order is for state officials — in practice, state officials of the opposing political party — to begin unilaterally excluding him from their ballots on the basis of their own private judgment of crimes that he has not been successfully prosecuted for … I’m sorry, the mind reels. It should not happen, it would not work if it did happen, John Roberts and four more justices would not uphold it, and it would license political chaos to no good purpose whatsoever. And if the legal theorist’s response is that this isn’t the “best” way to deal with Trump, it’s just the way that the Constitution requires, then so much the worse for their theory of the Constitution.There is an irony here, which is that a similar kind of legal mentality influenced Trump’s campaign to overturn the results of the 2020 election. John Eastman’s argument that Mike Pence could interpose himself between the official results of the election and Joe Biden’s inauguration was a much more fanciful constitutional argument than the one that Baude and Paulsen make. But it was similar in imagining a particular interpretation of the Constitution as something that can just be deemed correct and then imposed by a particular actor — the vice president in the Eastman case, state election officials in theirs — without regard to anything that would naturally follow in the realm of the political.What would have probably followed from the Pence maneuver, as his own lawyer advised him, would have been either a swift smackdown from the courts or the vice president standing alone against both houses of the legislative branch. (This seems like one reason Eastman’s crackbrained proposal was not a rebellion under 14th Amendment definitions; if Confederate secession could have been defeated through a quick appeal to the Supreme Court, it would not have been much of a rebellion either.)But imagine, if you will, a world where Eastman had uncovered, days before Jan. 6, some piece of historical evidence that raised his theory’s status from “desperate Trumpist motivated reasoning” to “an idea that merits some academic debate.” Suppose even that a few liberal legal scholars had been forced to concede a little ground to his position. Would this in any way have changed the total political folly of the Pence maneuver, the impossibility of levering a presidential outcome from the vice president’s supervisory position, the purposeless destabilization that such a gambit would entail?I say that it would not, that where legal theory touches politics in this way it must necessarily deal with political considerations, that appeals to law and legal text alone are not enough to settle matters if political realities are against you. That is the cold knowledge that all of us watching Trump’s extraordinary indictments converge with his extraordinary campaign need to carry into 2024.BreviaryNic Rowan on Bill WattersonJustin E.H. Smith sings a ballad of Generation XJohn Duggan on Sally Rooney and CatholicismAlex Tabarrok on the acts of Saint ThomasNotes for a Susannah Black Roberts essay on the post-Christian right More

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      Conservative Case Emerges to Disqualify Trump for Role on Jan. 6

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      Two law professors active in the Federalist Society wrote that the original meaning of the 14th Amendment makes Donald Trump ineligible to hold government office.Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy. But the scope and depth of the article may encourage and undergird lawsuits from other candidates and ordinary voters arguing that the Constitution makes him ineligible for office.“There are many ways that this could become a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide,” Professor Paulsen said.Mr. Trump has already been indicted twice in federal court, in connection with his efforts to overturn the 2020 election and his retention of classified documents. He is also facing charges relating to hush money payments in New York and may soon be indicted in Georgia in a second election case.Those cases could give rise to prison time or other criminal punishment. The provision examined in the new article concerns a different question: whether Mr. Trump is eligible to hold office.There is, the article said, “abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” the article said.Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the article “a tour de force.”But James Bopp Jr., who has represented House members whose candidacies were challenged under the provision, said the authors “have adopted a ridiculously broad view” of it, adding that the article’s analysis “is completely anti-historical.”(Mr. Bopp’s clients have had mixed success in cases brought under the provision. A state judge, assuming that the Jan. 6 attacks were an insurrection and that participating in them barred candidates from office, ruled that Representative Marjorie Taylor Greene, Republican of Georgia, had not taken part in or encouraged the attacks after she took an oath to support the Constitution on Jan 3. A federal appeals court ruled against Representative Madison Cawthorn, Republican of North Carolina, on one of his central arguments, but the case was rendered moot by his loss in the 2022 primary.)The provision in question is Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each House.The new article examined the historical evidence illuminating the meaning of the provision at great length, using the methods of originalism. It drew on, among other things, contemporaneous dictionary definitions, other provisions of the Constitution using similar language, “the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms” and the early enforcement of the provision.The article concluded that essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”It added, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”Though the provision was devised to address the aftermath of the Civil War, it was written in general terms and continues to have force, the article said. Congress granted broad amnesties in 1872 and 1898. But those acts were retrospective, the article said, and did not limit Section 3’s prospective force. (A federal appeals court agreed last year in the case involving Mr. Cawthorn.)The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.Professor Calabresi said those administrators must act. “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.(Professor Calabresi has occasionally strayed from conservative orthodoxy, leading to an unusual request from the group he helped found. “I have been asked not to talk to any journalist who identifies me as a co-founder of the Federalist Society, even though it is a historical fact,” he said. I noted the request and ignored it.)Some of the evidence the article considered overlapped with what was described in the recent indictment of Mr. Trump accusing him of conspiring to subvert the 2020 election. But that case and Section 3 address “completely separate questions,” Professor Baude said.“The question of should Donald Trump go to jail is entrusted to the criminal process,” he said. “The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.” More

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      It’s No Surprise That Donald Trump Is Being Charged Under a Reconstruction-Era Law

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      Of the four charges included in the latest federal indictment of Donald Trump, one — violating Section 241 of Title 18 of the United States Code — seemed to surprise many. It shouldn’t have.That statute dates back to Reconstruction, as Congress responded to the Confederacy’s white-power insurrection against the United States. Reconstruction sought not only to restore the Union after the Civil War, but also to build guardrails against such an authoritarian faction ever again being able to subvert the Republic.It’s therefore appropriate that Section 241 and other Reconstruction-era laws are precisely those that the American legal system is turning to in response to a former president who stoked the flames of an insurrection in which a violent mob stormed the Capitol in an effort to undermine the democratic process. One of the rioters, later sentenced to three years in prison, carried a Confederate flag into the Capitol, an indelible image captured in photographs and widely circulated.Congress enacted Section 241 as part of the Civil Rights Act of 1870 (also known as the Enforcement Act for its role in enforcing the terms of the 13th, 14th and 15th Amendments, crucial to providing Black people with the rights and protections of citizenship). The law addressed the rise of white supremacist groups after the Civil War, especially the Ku Klux Klan, which organized citizens and public officials to intimidate freed Black people to suppress their participation in the political process. It empowered federal agents to stop these conspirators from depriving any Americans, in particular Black Americans, of the right to have a say in their government.The Justice Department has charged Mr. Trump with doing exactly that: the government asserts in its detailed 45-page indictment that through his attempts “to overturn the legitimate results of the 2020 presidential election,” Mr. Trump conspired to “injure, oppress, threaten and intimidate” voters in exercising their “right to vote, and to have one’s vote counted.”Bringing civil rights charges against the former president is not overreach by the Justice Department, as some have suggested. By enforcing the Civil Rights Act of 1870, the department is doing the very thing the law was designed to do by prosecuting a political leader who, while in office and after, sought to cancel the votes of millions to hold power.In 1871, with Klan violence continuing, Congress passed two more bills to enforce the 13th, 14th and 15th Amendments, known as the Ku Klux Klan acts. Among other things, these laws empowered citizens to sue anyone who conspired to intimidate or retaliate against them for exercising their political rights.Armed with these laws, the Justice Department oversaw the arrest and conviction of hundreds of Klansmen, and by 1873 the group had been effectively (though temporarily) crushed. While Section 241 has regularly been used ever since to police civil rights violations, with the end of Reconstruction in 1877, Klan Act litigation brought by private parties declined precipitously, according to our research, until in recent years.In July 2017, our organization, Protect Democracy, filed a Klan Act lawsuit against the 2016 Trump campaign over what we asserted was its role in Russian efforts to compromise the political rights of Americans. While that suit did not succeed, it was the beginning of a spate of private Klan Act litigation unseen in more than 100 years.Several lawsuits have been filed by our group and others. Among the results: A restraining order was issued against armed groups that surrounded ballot drop boxes in ways that intimidated voters; the Proud Boys were ordered to pay more than $1 million in damages for desecrating the property of a Black church; and a jury ordered 17 white nationalist leaders and organizations to pay more than $26 million in damages to nine people who suffered physical or emotional injuries at the Charlottesville Unite the Right rally in 2017. Still pending are lawsuits seeking damages against those responsible for Jan. 6, against those who organized a car caravan that threatened to drive a campaign bus off the highway and against Mr. Trump and others for seeking to deprive Black voters from having their votes counted in the 2020 election.Other Reconstruction-era laws are also in the center of debates today. Congress recently reformed the Electoral Count Act, passed in response to the contested presidential election of 1876, after Mr. Trump and his allies sought to use the law’s ambiguities to overturn the 2020 election. The former president has also pledged, if re-elected, to abolish the 14th Amendment’s guarantee of birthright citizenship. That guarantee was ratified in 1868 to reverse the Supreme Court’s Dred Scott decision holding that African Americans were not citizens.Yet another 14th Amendment provision, Section 3’s prohibition on those who have engaged in insurrection against the United States from holding power again, was recently applied for the first time since Reconstruction to bar from office a New Mexico county commissioner who breached the barricades outside the Capitol on Jan. 6. And recently, our organization filed a voting rights lawsuit under the 1870 law that readmitted Virginia to the Union. The Virginia Readmission Act limited the circumstances in which the state could disenfranchise its citizens, and our lawsuit argues that the state’s lifetime ban on voting by anyone convicted of any felony violates that law.These battles are the newest iterations of the Reconstruction-era clashes. Just as the integration of freed Black people into our democracy in the 1870s was met with fierce resistance, so too did the election of the nation’s first Black president give rise to a revival of open bigotry. And just as the enactment of laws in the 1870s to enforce equal citizenship were met with intransigence, so too today should we expect to see their enforcement resisted.The outcome of these legal clashes will determine the future of the country’s experiment in self-government. Either these laws will finally be fully realized and usher in a true multiracial democracy or the 150-year resistance to Reconstruction will prevail and white Americans reluctant to share power will reinforce their dominance over a diversifying nation. Authoritarianism rather than democracy would then be the order of the day.Ian Bassin is a co-founder and the executive director of the group Protect Democracy and a former associate White House counsel. Kristy Parker is counsel at Protect Democracy and the former deputy chief of the criminal section of the Justice Department’s Civil Rights Division.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      What Frederick Douglass Knew That Trump and DeSantis Don’t

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      There was a moment during the Trump administration when the president and his most ideologically committed advisers searched for a way to end birthright citizenship.Enshrined in the first sentence of the first section of the 14th Amendment to the Constitution, birthright citizenship means that anyone and everyone born on American soil is an American citizen. Written to secure the social transformations wrought by the Civil War, it is a cornerstone of the United States as a multiracial democracy.President Donald Trump would end it, he decided, by executive order. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he said when announcing the effort in 2018, falsely asserting, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States — with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”Fortunately, Trump was wrong. There is no way, short of a constitutional amendment, to nullify the birthright citizenship clause of the 14th Amendment. Nor was there any question of its meaning and intent. After fierce pushback from legal scholars on both the left and the right, Trump dropped the issue.But he didn’t forget about it. Earlier this year, Trump announced that if he were elected president again, he would ban birthright citizenship through executive order. Not to be outdone in the race for the Republican presidential nomination, Ron DeSantis, the governor of Florida, said that he, too, would end birthright citizenship if elected president.“Stop the invasion,” said DeSantis’s blueprint for immigration policy. “No excuses.” He is pledging to “take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States.” He also contends, “Dangling the prize of citizenship to the future offspring of illegal immigrants is a major driver of illegal migration,” adding that “it is also inconsistent with the original understanding of the 14th Amendment.”The main reason DeSantis has followed Trump down this path is that he appears to be running to be the understudy to the former president. If Trump is forced out of the race because his legal troubles push him out of presidential politics, then DeSantis will take the standard for the MAGA faithful. Or so he hopes.At the same time, it’s clear that DeSantis’s position is as much about ideology as it is about opportunism. His attack on birthright citizenship is consistent with his crusade to purge “wokeness” from schools and classrooms in the state of Florida, where officials have banned books and suppressed instruction on, among other subjects, the history of American racism.The attack on birthright citizenship is an attempt to stigmatize and remove from society an entire class of people. And the attack on so-called wokeness is an attempt to delegitimize and remove from society an entire way of understanding the world. Together, the attacks form an assault on two of the pillars of the egalitarian ideal.Here, it is worth taking a brief tour of the history of birthright citizenship in the United States. Before the 14th Amendment, the boundaries around citizenship were ill defined. Although the idea of birthright citizenship was present in English common law at the time of the adoption of the Constitution, the Constitution as ratified said nothing about acquiring citizenship by either birth or naturalization.In 1790, Congress limited citizenship by naturalization to “free White persons … of good character,” but was silent on the question of citizenship by birth. As the 18th century came to a close and the 19th century progressed, one prominent view was that there was no citizenship in the United States as such; there was only citizenship in a state, which conferred national citizenship by virtue of the state’s place in the Union. To the extent that citizenship came with rights, the scope of those rights was a question of state laws and state constitutions.But there were always proponents of a broader, more expansive and rights-bearing birthright citizenship. They were free Black Americans, who needed to anchor themselves in a world where their freedom was tenuous and uncertain.“We are Americans, having a birthright citizenship,” wrote Martin Delany, the free Black journalist and antislavery orator, in his 1852 pamphlet “The Condition, Elevation, Emigration and Destiny of the Colored People of the United States.” Delany, as the historian Martha S. Jones noted in “Birthright Citizens: A History of Race and Rights in Antebellum America,” called on Black Americans to leave the United States. And yet, he still claimed the country as his own.“Our common country is the United States,” Delany wrote. “Here were we born, here raised and educated; here are the scenes of childhood; the pleasant associations of our school going days; the loved enjoyments of our domestic and fireside relations, and the sacred graves of our departed fathers and mothers, and from here will we not be driven by any policy that may be schemed against us.”Against legislative efforts to make their lives in America impossible to live, free Blacks asserted that, in Delany’s words, “the rights of the colored man in this country to citizenship are fixed,” attached not just to the states, but to the United States.Jones noted that even those opposed to emigration, like the men of the 1853 Colored National Convention in Rochester, N.Y., mirrored Delany’s thinking. “We are Americans, and as Americans, we would speak to Americans,” declared the group. “We address you not as aliens nor as exiles, humbly asking to be permitted to dwell among you in peace; but we address you as American citizens asserting their rights on their own native soil.”With his 1857 decision in Dred Scott v. Sandford, however, Chief Justice Roger Taney foreclosed the constitutional recognition of Black citizenship and defined the United States, in true Jacksonian form, as a white man’s country. Black people, he wrote, “were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” They had no rights, he added, “which the white man was bound to respect.”The birthright citizenship clause of the 14th Amendment, based on similar language found in the Civil Rights Act of 1866, was a direct response to and a rebuke of Taney’s reasoning. Having won the argument on the battlefield, the United States would amend its Constitution to establish an inclusive and, in theory, egalitarian national citizenship.The authors of the 14th Amendment knew exactly what they were doing. In a country that had already seen successive waves of mass immigration, they knew that birthright citizenship would extend beyond Black and white Americans to people of other hues and backgrounds. That was the point.Asked by an opponent if the clause would “have the effect of naturalizing the children of Chinese and Gypsies born in this country,” Senator Lyman Trumbull, who helped draft the language of birthright citizenship in the Civil Rights Act, replied “Undoubtedly.” Senator John Conness of California said outright that he was “ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”In 1867, around the time Congress was debating and formulating the 14th Amendment, Frederick Douglass delivered a speech in Boston where he outlined his vision of a “composite nationality,” an America that stood as a beacon for all peoples, built on the foundation of an egalitarian republic. “I want a home here not only for the Negro, the mulatto and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours,” Douglass said. “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”If birthright citizenship is the constitutional provision that makes a multiracial democracy of equals possible, then it is no wonder that it now lies in the cross hairs of men who lead a movement devoted to unraveling that particular vision of the American republic.Embedded in birthright citizenship, in other words, is the potential for a freer, more equal America. For Donald Trump and Ron DeSantis, that appears to be the problem.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Asked About Age, Biden Says He Knows ‘More Than the Vast Majority of People’

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      The president also said that he was not yet prepared to lean on the 14th Amendment to compel the government to pay its debt amid a showdown with House Republicans.In his first interview since announcing that he would seek a second term, President Biden sought to downplay concerns about his age by saying he was the most experienced person to have ever run for the presidency.“I have acquired a hell of a lot of wisdom and know more than the vast majority of people,” Mr. Biden told the MSNBC host Stephanie Ruhle in an interview that aired on Friday night. “And I’m more experienced than anybody that’s ever run for the office. And I think I’ve proven myself to be honorable as well as also effective.”Mr. Biden, who would be 86 at the end of a second term should he win, has in recent days tried to reassure voters about his age, presenting it as an asset rather than a hindrance to running. In the interview, he also said that Vice President Kamala Harris “hasn’t gotten the credit she deserves,” and he promoted her past work as attorney general of California and as a senator.The wide-ranging interview showed a president seeking to make his case for re-election amid looming potential crises, including a deployment of American troops to the country’s southern border and a federal government that is potentially weeks away from defaulting on its debt.Compared with his predecessors, Mr. Biden has given far fewer news conferences and rarely sits for interviews with journalists, instead opting for friendly celebrity interviews or softball social-media videos. His interview with Ms. Ruhle, who hosts a show on a network that leans sympathetic to Mr. Biden and Democratic causes, was broadcast at 10 p.m. on a Friday.In the interview, Mr. Biden said he was not yet prepared to invoke a clause in the 14th Amendment that would compel the federal government to continue issuing new debt should the government run out of cash, an event that Treasury Secretary Janet L. Yellen warned this week could come as soon as June 1. “I’ve not gotten there yet,” he told Ms. Ruhle.Republicans are demanding major spending cuts before raising the debt limit. But Mr. Biden has repeatedly said that he will not negotiate over the debt ceiling, pointing out that it was raised several times under former President Donald J. Trump without issue. In his interview, he reiterated that he was willing to negotiate on federal spending — as long as it was separate from debt-ceiling negotiations.“This is not your father’s Republican Party,” Mr. Biden said, repeating claims he has made before about extremists within the G.O.P. “This is a different, a different group. And I think that we have to make it clear to the American people that I am prepared to negotiate in detail with their budget. How much are you going to spend? How much are you going to tax? Where can we cut?”Mr. Biden is supposed to meet with Republican and Democratic leaders at the White House next week to discuss a path forward. He will need a negotiating partner in Speaker Kevin McCarthy, who last week marshaled a bill to raise the debt ceiling while cutting spending and unraveling major elements of Mr. Biden’s domestic agenda. The legislation is considered dead on arrival, but it has given Mr. McCarthy the opportunity to say he has done his part.The president said in the interview that Mr. McCarthy was an “honest man” but that he had “sold away everything” to the far-right wing of his party to become House speaker.“He’s agreed to things that maybe he believes, but are just extreme,” Mr. Biden said.Mr. Biden defended his decision to send 1,500 troops to the border with Mexico as the ending of pandemic-era immigration restrictions threatens a surge of migrants, saying that the troops would not be there to “enforce the law” but to “free up the border agents that need to be on the border.”He also said that his son Hunter, who is the subject of a federal investigation into his business dealings, was innocent and that he did not think his son’s legal problems would harm his presidency.“My son has done nothing wrong,” Mr. Biden said. “I trust him. I have faith in him. And it impacts my presidency by making me feel proud of him.” More

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      Is Donald Trump Ineligible to Be President?

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      How does a democracy protect itself against a political leader who is openly hostile to democratic self-rule? This is the dilemma the nation faces once again as it confronts a third presidential run by Donald Trump, even as he still refuses to admit he lost his second.Of course, we shouldn’t be in this situation to begin with. The facts are well known but necessary to repeat, if only because we must never become inured to them: Abetted by a posse of low-rent lawyers, craven lawmakers and associated crackpots, Mr. Trump schemed to overturn the 2020 election by illegal and unconstitutional means. When those efforts failed, he incited a violent insurrection at the United States Capitol, causing widespread destruction, leading to multiple deaths and — for the first time in American history — interfering with the peaceful transfer of power. Almost two years later, he continues to claim, without any evidence, that he was cheated out of victory, and millions of Americans continue to believe him.The best solution to behavior like this is the one that’s been available from the start: impeachment. The founders put it in the Constitution because they were well acquainted with the risks of corruption and abuse that come with vesting great power in a single person. Congress rightly used this tool, impeaching Mr. Trump in 2021 to hold him accountable for his central role in the Jan. 6 siege. Had the Senate convicted him as it should have, he could have been disqualified from holding public office again. But nearly all Senate Republicans came to his defense, leaving him free to run another day.There is another, less-known solution in our Constitution to protect the country from Mr. Trump: Section 3 of the 14th Amendment, which bars from public office anyone who, “having previously taken an oath” to support the Constitution, “engaged in insurrection or rebellion” or gave “aid or comfort” to America’s enemies.On its face, this seems like an eminently sensible rule to put in a nation’s governing document. That’s how Representative David Cicilline of Rhode Island, who has drafted a resolution in Congress enabling the use of Section 3 against Mr. Trump, framed it. “This is America. We basically allow anyone to be president,” Mr. Cicilline told me. “We set limited disqualifications. One is, you can’t incite an insurrection against the United States. You shouldn’t get to lead a government that you tried to destroy.”This was also the reasoning of the 14th Amendment’s framers, who intended it to serve as an aggressive response to the existential threat to the Republic posed by the losing side of the Civil War. Section 3 was Congress’s way of ensuring that unrepentant former Confederate officials — “enemies to the Union” — were not allowed to hold federal or state office again. As Representative John Bingham, one of the amendment’s lead drafters, put it in 1866, rebel leaders “surely have no right to complain if this is all the punishment the American people shall see fit to impose upon them.”And yet despite its clarity and good sense, the provision has rarely been invoked. The first time, in the aftermath of the Civil War, it was used to disqualify thousands of Southern rebels, but within four years, Congress voted to extend amnesty to most of them. It was used again in 1919 when the House refused to seat a socialist member accused of giving aid and comfort to Germany in World War I.In September, for the first time in more than a century, a New Mexico judge invoked Section 3, to remove from office a county commissioner, Couy Griffin, who had been convicted of entering the Capitol grounds as part of the Jan. 6 mob. This raised hopes among those looking for a way to bulletproof the White House against Mr. Trump that Section 3 might be the answer.I count myself among this crowd. As Jan. 6 showed the world, Mr. Trump poses a unique and profound threat to the Republic: He is an authoritarian who disregards the Constitution and the rule of law and who delights in abusing his power to harm his perceived opponents and benefit himself, his family and his friends. For that reason, I am open to using any constitutional means of preventing him from even attempting to return to the White House.At the same time, I’m torn about using this specific tool. Section 3 is extraordinarily strong medicine. Like an impeachment followed by conviction, it denies the voters their free choice of those who seek to represent them. That’s not the way democracy is designed to work.And yet it is true, as certain conservatives never tire of reminding us, that democracy in the United States is not absolute. There are multiple checks built into our system that interfere with the expression of direct majority rule: the Senate, the Supreme Court and the Electoral College, for example. The 14th Amendment’s disqualification clause is another example — in this case, a peaceful and transparent mechanism to neutralize an existential threat to the Republic.Nor is it antidemocratic to impose conditions of eligibility for public office. For instance, Article II of the Constitution puts the presidency off limits to anyone younger than 35. If we have decided that a 34-year-old is, by definition, not mature or reliable enough to hold such immense power, then surely we can decide the same about a 76-year-old who incited an insurrection in an attempt to keep that power.So could Section 3 really be used to prevent Mr. Trump from running for or becoming president again? As a legal matter, it seems beyond doubt. The Capitol attack was an insurrection by any meaningful definition — a concerted, violent attempt to block Congress from performing its constitutionally mandated job of counting electoral votes. He engaged in that insurrection, even if he did not physically join the crowd as he promised he would. As top Democrats and Republicans in Congress said during and after his impeachment trial, the former president was practically and morally responsible for provoking the events of Jan. 6. The overwhelming evidence gathered and presented by the House’s Jan. 6 committee has only made clearer the extent of the plot by Mr. Trump and his associates to overturn the election — and how his actions and his failures to act led directly to the assault and allowed it to continue as long as it did. In the words of Representative Liz Cheney, the committee’s vice chair, Mr. Trump “summoned the mob, assembled the mob and lit the flame of this attack.”A few legal scholars have argued that Section 3 does not apply to the presidency because it does not explicitly list that position. It is hard to square that claim with the provision’s fundamental purpose, which is to prevent insurrectionists from participating in American government. It would be bizarre in the extreme if Mr. Griffin’s behavior can disqualify him from serving as a county commissioner but not from serving as president.It’s not the legal questions that give me pause, though; it’s the political ones.First is the matter of how Republicans would react to Mr. Trump’s disqualification. An alarmingly large faction of the party is unwilling to accept the legitimacy of an election that its candidate didn’t win. Imagine the reaction if their standard-bearer were kept off the ballot altogether. They would thunder about a “rigged election” — and unlike all the times Mr. Trump has baselessly invoked that phrase, it would carry a measure of truth. Combine this with the increasingly violent rhetoric coming from right-wing media figures and politicians, including top Republicans, and you have the recipe for something far worse than Jan. 6. On the other hand, if partisan outrage were a barrier to invoking the law, many laws would be dead letters.The more serious problem with Section 3 is that it is easy to see how it could morph into a caricature of what it is trying to prevent. Keeping specific candidates off the ballot is a classic move of autocrats, from Nicolas Maduro in Venezuela to Aleksandr Lukashenko in Belarus to Vladimir Putin. It sends the message that voters cannot be trusted to choose their leaders wisely — if at all. And didn’t we just witness Americans around the country using their voting power to repudiate Mr. Trump’s Big Lie and reject the most dangerous election deniers? Shouldn’t we let elections take their course and give the people the chance to (again) reject Mr. Trump at the ballot box?To help me resolve my ambivalence, I called Representative Jamie Raskin of Maryland, who sits on the Jan. 6 committee and taught constitutional law before joining Congress. He acknowledged what he called an understandable “queasiness” about invoking Section 3 to keep Mr. Trump off the ballot. But Mr. Raskin argued that this queasiness is built into the provision. “What was the constitutional bargain struck in Section 3?” he asked. “There would be a very minor incursion into the right of the people to elect exactly who they want, in order to obtain much greater security for the constitutional order against those who have demonstrated a propensity to want to overthrow it when it is to their advantage.”The contours of the case for Mr. Trump’s disqualification might get stronger yet, as the Justice Department and state prosecutors continue to pursue multiple criminal investigations into him and his associates and as the Jan. 6 committee prepares to release its final report. While he would not be prohibited from running for office even if he was under criminal indictment, it would be more politically palatable to invoke Section 3 in that case and even more so if he was convicted.I still believe that the ideal way for Mr. Trump to be banished for good would be via the voters. This scenario is democracy’s happy ending. After all, self-government is not a place; it is a choice, and an ongoing one. If Americans are going to keep making that choice — in favor of fair and equal representation, in favor of institutions that venerate the rule of law and against the threats of authoritarian strongmen — they do it best by themselves. That is why electoral victory is the ultimate political solution to the ultimate political problem. It worked that way in 2020, when an outright majority of voters rejected Mr. Trump and replaced him with Joe Biden.But it’s essential to remember that not all democracies have happy endings. Which brings us to the most unsettling answer to the question I began with: Sometimes a democracy doesn’t protect itself. There is no rule that says democracies will perpetuate themselves indefinitely. Many countries, notably Hungary and Turkey, have democratically undone themselves by electing leaders who then dismantled most of the rights and privileges people tend to expect from democratic government. Section 3 is in the Constitution precisely to help ensure that America does not fall into that trap.Whether or not invoking Section 3 succeeds, the best argument for it is to take the Constitution at its word. “We undermine the importance of the Constitution if we pick and choose what rules apply,” Mr. Cicilline told me. “One of the ways we rebuild confidence in American democracy is to remind people we have a Constitution and that it has in it provisions that say who can run for public office. You don’t get to apply the Constitution sometimes or only if you feel like it. We take an oath. We swear to uphold it. We don’t swear to uphold most of it. If Donald Trump has taught us anything, it’s about protecting the Constitution of the United States.”Surely the remedy of Section 3 is worth pursuing only in the most extraordinary circumstances. Just as surely, the events surrounding Jan. 6 clear that bar. If inciting a violent insurrection to keep oneself in office against the will of the voters isn’t such a circumstance, what is?The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More