Wednesday, January 3, 2024

Section Three

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If the concept of constitutionally disqualifying Trump from running for president is complex, multi-layered, and controversial, one aspect isn’t. The wording of Section Three of the Fourteenth Amendment is unambiguous:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President,” says Section Three, “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.”

It couldn’t be more clear: if, after taking an oath, you participated in insurrection or rebellion against the US or any state, or aided or encouraged people who did, you are barred from federal or state office. Period. It’s the Constitution. It’s the law. It can’t be selectively enforced, can’t be ignored for any reason, including applying it to a former or current candidate. Political impact isn’t a consideration. In a constitutional republic, the law is to be enforced, undisirregardlessly. Must be.

None of which is to pretend the particulars are clear-cut. Whereas some claims from the right are specious at best – questioning whether a president is an officer of the United States, for example – others deserve consideration. There’s plenty of thoughtful discussion out there, and even non-lawyers should be able to sort through it.

The fundamental question may be who defines an insurrection; it’s at the heart of a related question: is Section Three self-actualizing or does it require some sort of enabling legislation from Congress? Must Congress define the word and state by what standards it’s applied, and by whom? Courts? Secretaries of state? These are fair questions. Coincidentally, they provide a way for the Supreme Court to escape adjudicating Trump’s eligibility to become “president” again. Or, in his case, a dictator as promised.

Looking for a place to hide, the SCOTUS Six may rule that, absent enabling legislation, Section Three is unenforceable. Credible legal scholars, both liberal and conservative, have concluded otherwise, some going so far as to predict an unlikely 9-0 decision that disqualifies Trump. (8-0 if Clarence Thomas, whose wife actively attempted to overturn the election, recuses, in an uncharacteristic display of integrity.) 

Unlike the compelling erudition of the preceding link, a lower-court Colorado judge, before she was overruled by its supreme court, stated that Trump engaged in insurrection but, bizarrely, that presidents aren’t “officers” of the US, as described in Section Three. That, to say the least, is hard to defend, given that the Constitution specifically prescribes the presidential oath, beginning thus: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States...” (My emphasis.) It’s an office, by Constitutional definition. People in office are officers. And Trump took the oath.

Less compelling than the enabling argument is the political one: it’s dangerous; it’ll inflame Trump voters, cause an uprising. Same with “let the voters decide,” which they have, twice rejecting Trump by majority vote. Here’s his lawyer, Christina Bobb, on topic: “The president is elected by the entire nation and it should be the entire nation who determines who they want for president, whether they are guilty of insurrection or not.” Right. Except for, you know, what the law says. About insurrection.

Maybe it shouldn’t be judges who define or decide who participated. (Note that Section Three includes “rebellion.” If January 6 wasn’t that, what is?) On the other hand, we remember Justice Potter Stewart’s response when asked for a definition of obscenity: “I know it when I see it.” In trying then and now, many times, many ways, to overturn a Constitutionally valid election and, therefore, the Constitution itself, Trump is disqualified, by law. Call it insurrection. Call it rebellion. We know it when we see it. Or make it really easy: “Aid or comfort.” His continuing election lies, called out even by his own people, are at the heart of it. That’s a slam, as they say, dunk. 

Would there be violence? Is Fox “news” like a bear in the woods except in our brains? Probably. But unless you believe in selective application of the law, based on status or politics, meaning you don’t believe in law at all, what choice is there? The NRA doesn’t believe the Second Amendment has exceptions. Per the Third, no one’s being forced to quarter troops. Trump pleaded the Fifth hundreds of times. If the Fourteenth is different, how exactly? It’s not politics. It’s the law.

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