One Candidate Shy

The argument appears to be straight forward. Section 3 of the Fourteenth Amendment precludes anyone who provided aid and comfort to insurrectionists from holding public office.

Section 3 Disqualification from Holding Office

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.

At Volokh Conspiracy, Steve Calabresi asserts that this clause covers Trump. Will Baude and Michael Stokes Paulsen make the same argument in The Sweep and Force of Section Three, to be published in the Penn law review. The basis of the argument has little to do with whether you would call January 6 an insurrection, but rather the definition of insurrection at the time the Fourteenth Amendment was approved.

Webster’s 1828 Dictionary of American English defines “insurrection” as follows:

INSURREC’TIONnoun [Latin insurgo; in and surgo, to rise.] 1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy, insurrection is however used with such latitude as to comprehend either sedition or rebellion.

As Baude (who was first to attack the propriety of Qualified Immunity) and Stokes Paulsen assert, “it’s not even close.

The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.

Notably, Section 3 is self-effectuating. In other words, you don’t need to go to court and get a ruling as to whether someone violated the clause. If they did, then the clause applies.

No jury verdict is required to determine whether a candidate who seeks to run for the presidency on a primary or general election ballot is: a natural born citizen, who is 35 years of age, and fourteen years a resident of the United States. Likewise, no jury verdict or act of Congress is required to keep a Secretary of States and their subordinates from printing ballots with the name “Donald J. Trump” on them.

This raises a remarkable possibility. What if some states, say blue states for example, decided that Trump was disqualified under Section 3 and printed ballots without Trump’s name on it? Perhaps he could be written in. Perhaps not. But since the clause is self-effectuating, it could be done without any need for federal approval if whoever prepared ballots for a state, say the secretary of state, told the printer that Trump was disqualified and should not be on the ballot.

Keeping Trump off the ballot after his conduct on January 6, 2021 does not deprive him of life, liberty, or property in the same way that a criminal or a civil jury verdict could. It is a privilege to be eligible to run for President of the United States and that privilege does not extend to constitutional oath breakers who engage “in insurrection or rebellion against the same.”

Then again, leaving millions of Amerians unable to vote for the candidate of their choice, no matter how poor that choice may be, would deprive them of a right. For all the outrage over elected officials being anti-democratic, this wouldn’t exactly be the most democratic way to win an election.

Some will no doubt say that the voters should be the judges of Trump’s insurrection, but that is not what the Constitution says. The Constitution says that only Presidents who follow their oath of office, which includes taking care that the laws be faithfully executed, are eligible to be on the ballot and to run for re-election.

It’s not that Calabresi is wrong about what the Constitution provides, but that if any state actually disqualified Trump from running, it could be the most catastrophic political decision since Hillary called Trump supporters deplorable. Maybe even worse.

7 thoughts on “One Candidate Shy

  1. LocoYokel

    Without speaking (or having) an opinion on how this would work legally, if this is done there probably will be a (several?) insurrections, and really violent ones at that – perhaps bordering on open revolt. It might even make the BLM “mostly peaceful” riots look actually peaceful by comparison.

    Much as I would like to see Trump go away (along with certain other pols, Dem and Rep, who are equally divisive – if not more so) this is not the way to do it. Despite the wording of the amendment and it’s apparent applicability this would pretty much confirm the claims of political persecution in the minds of every Trump supporter out there. At a minimum get a conviction to hang this on for coverage.

  2. Jake

    At the very least, it’s been fun seeing the otherwise originalist commentariat twist themselves around the axle to explain away this part of the Constitution.

  3. Elpey P.

    This prospect would answer the mystery of why they would simultaneously work to elevate his front runner status (again) and yet also seek to block his candidacy. Being able to claim justification to transparently control the outcome and therefore trigger massive civil unrest – and respond accordingly – is a familiar pattern of the security state. And apparently much easier than trying to prevail with sound policies and candidates who aren’t demagogues.

    That 1828 definition of insurrection is pretty milquetoast these days and is almost a prerequisite for political street cred since the 60s. Like comedy and tragedy, the difference between insurrection and civic engagement is you/them vs me/us.

  4. marie c bolen

    While I am as ready for Trump to go away as any rational person , I agree that this would be would not have a good outcome. There are states already talking about keep TFG off the ballot. TFG’s supports would riot and not take hostages. We could end up in the threatened civil war.

  5. Jeff Tyler

    A caveat; I have no legal training, nor even so much as a college degree.
    However, I’m old enough to remember Watergate. While I believe President Ford’s heart was in the right place when he pardoned President Nixon, I believed then, and I believe now, that that was a mistake. I believe the pardoning of President Nixon prior to allowing the justice system’s workings in that matter to be seen to an end has contributed greatly to the rise of the actions of President Trump.
    It’s time to put an end to this nonsense. Make an example of President Trump, and let the chips fall where they may.

  6. Gregory Smith

    some seem to be conflating eligibility to be a candidate with the election process. Article II section 1 defines who is “eligible” to be a candidate. Fourteenth Amendment specifies that “no person shall” hold any office, etc. Article I section 4 assigns responsibility to the states concerning “time, place and manner” of conducting elections. The use of ballots does not appear to be obligatory — seems a state could simply direct voters to write the name of their preferred candidate on a blank sheet of paper and drop it in a ballot box if it so chose. But if states do put names on a ballot, it could be argued that they must meet the eligibility requirements specified in Article II. But the 14th doesn’t appear to bar anyone from seeking office, only from holding it. So it would seem that states could justify keeping Trump off the ballot, but that they are not obliged to do so by the 14th.

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