The inherent dangers in avoiding the simple directive of Section 3 of the 14th Amendment…
Much has been written by legal scholars and others about applying a plain reading of Section 3 of the 14th Amendment to disqualify Donald Trump from another run for the presidency. The common language of this section written after the Civil War to protect the newly reconstituted union between the North and South has the clear directive to protect the Federal government from a hostile takeover by former Confederate pols who served in government before the war. The amendment would disqualify former office holders who joined the Confederacy from achieving politically what they couldn’t achieve by force. Article II of the Constitution lays out the role of the chief executive and the process of electing one and is separate and seemingly unrelated to Section 3 of the 14th Amendment- except, now, in the unique case of Mr. Trump.
Trump as president was deemed duly elected when the assembled Congress carried out its duties as per Article II, Section 1 and subsequently swore an oath to support the Constitution of the United States as part of his inaugural swearing-in ceremony. Article II of the Constitution includes the following prescription for the process of formally electing the president using state-appointed electors:
It is this very clause that Trump attempted to violate on January 6 and is at the center of the controversy swirling around Section 3, which plainly states:
Section 3: 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… (emphasis mine)
Legal scholars who advocate against employing this constitutional protection in the case of Donald Trump argue “ambiguity” and a lack of specificity about its plain language. They would argue, for example:
When Congress passed the 14th Amendment, there wasn’t a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president. Instead, Republicans feared that the leaders of the rebellion would use their local popularity to disrupt Republican Reconstruction policy in Congress or in the states. Section 3 expressly addressed these concerns and did so without denying loyal Americans their right to choose a president.
NYTimes Guest Essay, “Trump Should Not Be Disqualified by an Ambiguous Clause,” by Kurt Lash
And,
I think it’s clear that the siege of Congress was an insurrection and that Mr. Trump, at the very least, engaged in it. But the scholars’ critics persuasively point out that the provision’s broad, undefined terms are open to abuse, especially if left in the hands of partisan election officials. And any attempt to keep Mr. Trump off the ballot will trigger litigation that will end up at the Supreme Court. It is difficult in the extreme to imagine this lineup of justices ruling that the Republican front-runner for president can’t have the job.
- . “Trump’s Fate Belongs in the Hands of 12 Ordinary Citizens,” by Jesse Wegman
Some would even add without a trace of irony that by applying this constitutional remedy for preventing a government takeover by hostile actors, the remedy will inflame Trump supporters to violence. It is as if the need to prevent a MAGA temper tantrum is of greater import than ensuring that the next president is not a despot. Or put another way, the MAGA base should be given the opportunity to extort the rest of us into letting them conduct an election their way- and may the worse man win.
Before addressing the solution being proposed by those who would have us ignore the clarity of Constitutional language, the ironic understatement in admitting an insurrection took place on January 6 and Donald Trump’s complicity (… at the very least…), while dismissing those admissions as being “open to abuse” defies credulity. The abuse Wegman cites is and continues to be a real and present danger to the nation because it offers the insurrectionist a second bite at the apple. His further concern that applying the plain text protection against a would-be dictator would trigger litigation defines surreal. Giving Trump another opportunity to rip up the Constitution he had once sworn an oath to protect is akin to submitting to a form of national martyrdom- a selfless act but dumb.
And the certitude expressed by Mr. Lash concerning what members of the Congress were thinking (and not thinking) at the time invites skepticism about his motives and affiliation to the conservative Federalist Society and Heritage Foundation. Lash has written broadly limiting the scope of the so-called Reconstruction Amendments which put an end to slavery and granted equal rights and the right to vote for men of all races. He argues persuasively that those rights and privileges are limited to constitutionally enumerated and not fundamental rights. His objection in the Trump case is based upon an intent he could not know — that the restriction placed on insurrectionists was limited to state and local candidates and that the plain meaning of the article also precluded candidates for the presidency. While he argues the unlikelihood of such an occurrence, he cannot rule out the clear intent of the article to disqualify such a candidate based upon sheer pragmatism.
In both the Colorado Supreme Court decision and the decision to remove the ex-president from the Maine ballot, those who advocate for allowing the voters to make the decision are forced to employ tortured logic and verbal jujitsu. They accept whom Section 3 is specifically banning…
…any “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…”
…then claim that the president is neither an executive nor an officer of the state as defined by the 14th Amendment. It is a claim they hope might resonate among the 6 conservative Supreme Court Justices who like to tout originalism as their guide to interpreting the Constitution. However a plain and simple reading of the Constitution. Article II of the United States Constitution establishes the executive branch and the president’s powers and responsibilities and section 4 makes clear the founders’ intent regarding the president and his or her place in the chain of command:
The President, Vice President and all civil officers of the United States shall be removed from office… (emphasis mine)
Article II, section4, U.S. Constitution
Supreme Court Justices have often extrapolated sometimes obscure, sometimes inconvenient 18th and 19th-century verbal constructs to suit their opinions. Most infamously for many has been their interpretation of the Second Amendment “well regulated Militia…” phrase that has supported unbridled gun ownership in the U.S. to daily, deadly consequence. So, over time, the court has identified what are known as “fundamental rights” not specifically included, but implied because of their constitutional entanglement:
Fundamental rights that the Supreme Court decides are implied in the Constitution often have more difficult rulings that change over time compared to rights explicit in the Constitution. Specifically mentioned rights, like the freedom of speech, mainly require the Court to just determine the extent of the right. Implied rights require further connection with Constitutional text, principles, and analogies to support the foundation for the right.
The clarity and unambiguous language of Section 3, supported by Article II’s assertion that the president is lumped in with his VP and all other civil officers, makes impractical their argument that Trump either wasn’t an “officer of the state” or that the clear intent after the Civil War was to ban- constitutionally- those whose behavior was deemed to be anti-democratic and whose actions were not necessarily deemed so in a court of law but simply identified as having broken faith with a sworn oath to the Constitution. The intent was not to eliminate all citizens reunited in the union from holding public office and representing their constituents, only those who had previously sworn an oath to “support” the Constitution that had prior to their insurrectionist acts had allowed them the privilege to serve it.
All other considerations that suggest that Section 3 is either an anachronism or simply an inappropriately applied prohibition for denying such an essential right to run for office fail under the clear intent and supportive language barring those whose desire to gain political power would be self-serving. The counter-argument to their conceit is the rather obvious- and fundamental — assertion that in a democracy the people are sovereign. This is the non-qualifying feature the 14th Amendment enforces barring usurpers from the seats of power.
In their original abstract written in support of applying the Section 3 ban in the case of Donald Trump, Law Professors William Baude (University of Chicago) and William Stokes Paulsen) University of Pennsylvania) make that case:
Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.- “The Sweep and Force of Section Three,” University of Pennsylvania Law Review, Vol. 172,
Opponents of the application of Section 3 will manufacture mostly ex-parte arguments meant to bait and incentivize the court to rule in favor of Trump. It is what they use to convince the public that the law matters less than their will. If they are to succeed it will be at the expense of the very Constitution the Justices have sworn to uphold and the rule of law we have been taught to observe- in short, rendering both moot.
Originally published at https://vincerizzo.substack.com.
