The disqualification theory is sound in many ways, but not without problems.
Amendment and the Insurrection Act, that makes it a felony to incite or engage in insurrection or rebellion.
Recognizing the perils of overly broad characterizations, Baude and Paulsen craft their own limiting constructions. “Insurrection,” they write, “is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect,” beyond “mere ordinary lawbreaking.” They define “rebellion” as “an effort to overturn or displace lawful government activity by unlawful means…beyond mere resistance to government authority.
Tribe and Luttig are also deeply concerned about civil liberties, but argue that the solution “lies in the wisdom of judicial decisions as to what constitutes ‘insurrection,’ ‘rebellion,’ or ‘aid or comfort to the enemies’ of the Constitution under Section 3.” They recognize that to effectuate Section 3, demands will have to be made on state election officials to exclude Trump from the ballot, and lawsuits will have to be filed.
Relying on the courts to clarify ambiguous terms is nothing new, but litigation is hardly “self-executing.” This highlights another weakness of the disqualification theory: Enforcement of the Constitution requires human agency. If the long and never-ending struggle for civil rights in this country proves anything, it is thatThis is not to suggest that Baude and Paulsen or Tribe and Luttig are naïve.
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