Pictured (left to right): Melody C. Barnes, J. Michael Luttig, and Kurt Lash
Photo Credit: VPM (Virginia Public Media)
Andrew Allard '25
Executive Editor
Last Tuesday, February 6, the Karsh Center for Law & Democracy hosted a discussion on Donald Trump’s eligibility for federal office under Section Three of the Fourteenth Amendment.[1] The Law School’s Professor Micah Schwartzman ’05 introduced the panelists: J. Michael Luttig ’81 and Kurt Lash. The event was moderated by Melody Barnes, a Senior Fellow at the Karsh Center. Luttig is a former judge of the Fourth Circuit Court of Appeals, and Lash is the E. Claiborne Robins Distinguished Chair in Law at the University of Richmond School of Law.
The discussion was held just days before oral arguments for Trump v. Anderson, a pending Supreme Court case examining Section Three of the Fourteenth Amendment’s applicability to former-president Trump. The case arrived before the Court on appeal from a Colorado Supreme Court decision determining that Trump was ineligible to hold federal office because of his alleged support for the January 6 insurrection. Oral argument for that case was held last Thursday, February 8.
Professor Lash argued that the Colorado Supreme Court’s decision should be reversed based on its erroneous interpretation of the phrase “any office, civil or military, under the United States.” As Lash explained in an amicus brief he submitted in support of Trump,[2] “civil office under the United States” was contemporaneously understood to encompass only appointed officers. Lash pointed out that the language of Section Three, which moves from the high offices of Senator and Representative to a “general catch all phrase,” supports this more restrictive reading. “This structure naturally reads as if the drafters expressly named all the high offices they wished to include, and they did not include the President.” Lash argued that while it is “textually possible” to read civil office under the United States differently, the ambiguous question should be resolved in favor of letting voters decide whether to re-elect Trump.
In response, Luttig pointed out that Lash “is tracking very closely the arguments that my [former] law clerks are making on behalf of the former president. For that reason alone, I have concluded that the President is emphatically disqualified under Section Three.” Luttig, who also submitted an amicus brief,[3] framed the case as a test of America’s commitment to democracy. “It goes without saying the Supreme Court of the United States must not fail this test.” Luttig said that by trying to remain in office despite losing the 2020 Election and “prevent[ing] the peaceful transfer of power for the first time in American history,” Trump engaged in an insurrection against the Constitution that bars him from federal office. Luttig emphasized that insurrection against the Constitution, rather than against the United States itself, is what Section Three forbids.[4] But Luttig acknowledged that there were “legitimate offramps” that the Supreme Court could take in this particular case to decide that Trump is not disqualified from federal office.
Lash agreed with Luttig’s “insurrection against the Constitution” reading of Section Three. “It certainly makes sense in terms of my study of the Civil War,” Lash said, citing the seceding states’ “betrayal” of the Constitution. But Lash disagreed that Trump’s conduct clearly meets that standard. “Once again, I think you’re looking at a term that can be read in different ways. Of course it can be read in a very broad way to include any type of resistance against the ordinary, peaceful transfer of power.” But Lash, describing himself as an originalist, suggested that the drafters of the Fourteenth Amendment may well have had “something far more insidious and far more catastrophic” in mind.
Luttig responded that while he is not an originalist, other originalist scholars, such as William Baude and Michael Stokes Paulsen, have concluded that Section Three does apply to Trump. “They are professedly not just conservatives, but originalists,” Luttig said. “There is no question in this world that under an originalist understanding and interpretation of the words of Section Three of the Fourteenth Amendment that the former president is disqualified. It’s incidentally also the case, that under a plain textual reading uninformed by the originalist meaning, that the former president is disqualified.”
Luttig also disagreed that disqualifying Trump would be undemocratic. “The Constitution itself tells us that disqualification is not anti-democratic . . . Disqualification is not what's anti-democratic. What's anti-democratic is the conduct that can give rise to disqualification.” Luttig said. Lash offered a different view, saying that excluding Trump from the ballot is not necessarily undemocratic—if doing so is constitutionally justified. “On the other hand, if it’s not constitutionally justified to disqualify Donald Trump, then it would be profoundly anti-democratic to prevent the country—at least half of the country—from voting for their choice of President.”
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tya2us@virginia.edu
[1] “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” U.S. Constitution, Article 14, §3.
[2] Brief for Professor Kurt T. Lash as Amicus Curiae in Support of Petitioner, Donald J. Trump, Trump v. Anderson, No. 23-719, 2024 WL 61814 (U.S. Jan. 5, 2024).
[3] Brief of Amici Curiae J. Michael Luttig, Peter Keisler, Larry Thompson, Stuart Gerson, Donald Ayer, et al., in Support of The Anderson Respondents, Trump v. Anderson, No. 23-719, 2024 WL 61814 (U.S. Jan. 5, 2024).
[4] The pertinent language of Section Three bars from federal office certain government officials who “having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . .”