Page 12 of Baude's paper shows a fundamental misunderstanding of how the past participle works in English. If I refer to something "imposed" by a statute, I use the past tense because the statute was enacted in the past: It does not imply that the amnesty applies only to past actions.
Let's look at the text, shall we: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever.
All persons whomsoever...not all persons alive...not all persons who participated in the war between the states...whomsoever. Congress did not have to use that language, but it did. Indeed. It even said "all persons whomsoever." All persons. Not all living persons. All persons...what kind of persons...whomsoever. I imagine because Congress anticipated some Baude-like fellow attempting this specious argument at some point in the future. It simply cannot be more explicit. Congress used language to ensure that even the densest moron could understand the legislation: But what is clear to a moron can still be misrepresented by a cunning professor on a mission.
Of course, Will knows exactly why whomsoever was chosen; Congress was removing this obnoxious and troublesome amendment---per the amendment's own provisions---for good. Congress was sick of having to grant exemptions on a one-off basis and never wanted to hear of this again. If Will is making these arguments in good faith, it can only be because he is desperate to reach the conclusion he has reached, and this has overcome his common sense.
Indeed, despite the threat of communism and the new left, no one considered making use of the 14th amendment to prevent people from running: Despite the fact that many actions undertaken by the American Communist Party and the SDS could be described as insurrection. The reason was simple; back then people knew what words like "all persons whomsoever" meant. Indeed, all existing case law on the topic points against Baude's interpretation.
Of course, the deeper problem with Baude's argument is that Trump's actions were not acts of insurrection---not in fact and certainly not with respect to his mental state: In his mind, he was looking to ensure a correct election result that would prevent a man who had openly supported the BLM insurrection from taking office.
First, Trump told people to protest peacefully. There is, by definition, no such thing as a peaceful insurrection. Second, Trump could not have anticipated the incompetent security present at the Capitol. Any protest in the future, organized by a Democrat, could result in such a breach if the ratio of police to attendees is 500 to 1 as it was on that occasion. If Baude's interpretation is upheld, any politician in the future can simply neglect his duty to defend the public or government buildings and then use the subsequent chaos to disqualify his opponent.
Furthermore, Biden and Kamala supported their own insurrection, the BLM riots of 2020. Indeed, Kamala and Biden both spoke, and even raised money for, BLM after it became violent, while Trump only spoke before the violence occurred. If Trump is banned from the ballot, Biden and Kamala should be as well. Of course, it is obvious to see how this logic could spiral into the effective dissolution of the entire election process.
Here is Kamala’s post providing support to insurrectionists in Minnesota: Kamala Harris - If you’re able to, chip in now to the Minnesota... | Facebook Here . For those who want to get technical, BLM rioters attacked Federal Courthouses, so you can’t let them off simply because they attacked state government. They also burned down US Post offices, which are Federal Government owned facilities. Moreover, the CHAZ, Capitol Hill Autonomous Zone established by BLM rioters, was a secessionist movement—intrinsically an insurrectionist act.
In his paper, Baude refuses to consider the practical implications of his argument: Almost as if he is trying to prove just how much of an originalist he is: Originalism or death—or better yet both? Only two outcomes can result from Baude’s thesis: We either end up in a world where both sides accuse each other of having participated in “insurrections” in order to gain an electoral advantage or, worse still, we end up in a world where Democrats get to use the 14th amendment against Republicans but the reverse is never accepted. Assuming Baude’s argument carries the day, we either create a one-party state or a Constitutional crisis.
Finally, the idea that the 14th amendment, which instituted due process, was specifically written with a provision that allowed people to be barred from running without due process is utterly absurd. Even if the 14th amendment was sometimes enforced by election officials, having belonged to the Confederate Army was a verifiable fact in a way that simply having been accused of insurrection is not: Indeed, none of the indictments Trump is currently facing accuse him of insurrection—insurrection is extremely difficult to prove, a fact that militates against given election officials the power to take action simply based on their own suspicions. Furthermore, Confederate soldiers swore an oath while accepting Johnson’s general amnesty for their acts of rebellion: By swearing this oath and accepting the pardon, they made their involvement in the Confederacy a matter of public record. Apart from this, discerning whether someone had fought for the Confederacy is much easier than determining whether someone is guilty of “insurrection” more generally. In short, acting on something that is already established by the admission of the accused is very different form acting on something that has not been established legally. This difference invalidates any attempt on Baude’s part to establish a general precedent based on how Confederates were treated. If we examine every other attempt to make use of this section, we find that a court’s ruling or action on the part of the legislature was necessary.
Section three of the 14th amendment is not, generally speaking, self-executing. The context of the Civil War has enough special circumstances, most importantly the general amnesty, that no binding precedent can be formed by looking at it: This is esp. true when one realizes that the 14th amendment establishes a right to due process, and no sane person can possibly think a right to due process and its denial can exist in the same amendment.
Kamala's financial support for the BLM insurrection: https://www.facebook.com/KamalaHarris/posts/if-youre-able-to-chip-in-now-to-the-minnesota-freedom-fund-to-help-post-bail-for/10158943194687923/