The president is undoubtedly an “officer” under Section 3. (That the word “officer” is used to refer to subordinate appointees in the appointments clause in the body of the Constitution is utterly irrelevant to its use more than 150 years later to protect the Union from former Confederates.) In any event, the phrase “hold any office” sweeps in the presidency. (As the Colorado Supreme Court noted: “The Constitution refers to the Presidency as an ‘Office’ twenty-five times.”)
The Colorado court’s evidentiary hearing also confirmed that Trump had “engaged in insurrection or rebellion against the same [the Constitution], or given aid or comfort to the enemies thereof.” Its exacting discussion on pages 97-103 of its ruling reiterated that “the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection.”
In addition, contrary to Trump apologists, there is no requirement in the text requiring a conviction before the disqualification. Had the framers intended to make that a precondition, they surely would have said so. (The conviction of former Confederates was not a required under Section 3.)
And finally, arguments that the 14th Amendment is not “self-executing” (i.e., requiring an act of Congress) are plain wrong. Individuals routinely bring suits directly under the due-process and equal-protection clauses of Section 1. As with Section 1, Congress may write enforcement legislation for Section 3, but none is necessary.
An honest originalist would be compelled to agree with the Colorado Supreme Court. Our democracy disallows certain candidates for president — e.g., foreign-born people, insurrectionists. As constitutional scholar Rep. Jamie Raskin (D-Md.) said on CNN’s “State of the Union,” “I have got a colleague who’s a great young politician, Maxwell Frost. He’s 26. He can’t run for president. Now, would we say that that’s undemocratic? Well, that’s the rules of the Constitution. If you don’t like the rules of the Constitution, change the Constitution.” If the Constitution is to mean anything, originalists tell us, its text must be followed even if the outcome is politically dicey. (Certainly, allowing an insurrectionist back on the ballot to do it again would be more problematic.)
And yet, few expect the Supreme Court’s right-wing majority, so profoundly lacking in credibility, to follow Section 3’s clear mandate, any more than they expect Justice Clarence Thomas to recuse himself, given his wife’s alleged involvement in the coup plot. How, then, do the justices get out of doing what the Constitution says they must?
First, the Supreme Court could concoct some novel definition of “insurrection” so it can categorize the attempted coup as something less than the “insurrection” Section 3 requires. Despite the Colorado court’s ample historical research demonstrating that Trump’s action fits squarely within the word’s meaning, the right-wing justices could simply make up a new definition. I would not put it past them.
Second, the court could duck the case on the grounds that it lacks jurisdiction to contravene a state’s ruling on qualifications for a primary, essentially putting off a decision until Trump becomes the Republican nominee. That said, very few court watchers expect the majority would countenance a hodgepodge of conflicting rulings, with some states allowing him on the ballot and others not. (By the way, unleashing utter chaos among states is precisely what the court did on abortion, but this court is no model of consistency.)
Finally, a related argument would be that states alone have the duty to determine qualifications. The only federal role comes when Congress can challenge electors. “Under Article II, Section 1, each state is authorized to appoint presidential electors ‘in such Manner as the Legislature thereof may direct,’” Colorado’s Supreme Court noted. “Absent a separate constitutional constraint, then, states may exercise their plenary appointment power to limit presidential ballot access to those candidates who are constitutionally qualified to hold the office of President.” Those enamored with the (rejected) independent state legislature doctrine might agree, but I suspect this partisan majority will not allow any state to exclude Trump from the ballot.
Bottom line: The partisan majority on the court could duck the question, deeming it premature or a matter for the states, thereby enraging their right-wing patrons, though that is highly unlikely. Alternatively, it could fashion a definition of insurrection to suit its purposes or blatantly defy Section 3’s clear language (e.g., invent a requirement for a criminal conviction). Right-wing justices’ contortions will confirm the utter lack of credibility that now defines the court.
Distinguished person of the week
Maine Secretary of State Shenna Bellows (D) faithfully applied Section 3 of the 14th Amendment to exclude Trump from her state’s primary ballot, defending her duty to prevent “an assault on the foundations of our government.” Constitutional guru Laurence H. Tribe posted on X, “Her decision was masterful.” Her decision can be appealed in court.
Bellows concluded her well-crafted 34-page opinion: “I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.” In contrast to Trump and his enablers, she affirmed that the “oath I swore to uphold the Constitution comes first above all, and my duty under Maine’s election laws, when presented with a [state election law] challenge, is to ensure that candidates who appear on the primary ballot are qualified for the office they seek.”
Just as Georgia election workers persevered in the face of Trump-inspired death threats, Bellows refused to be intimidated. “I certainly worry about the safety of people that I love, people around me, and people charged with protecting me and working alongside me,” she said on CNN’s “Situation Room.” “That being said, we are a nation of laws, and that’s what’s really important. So, I have been laser-focused on that obligation to uphold the Constitution.”
In threatening anyone who stands in his way, Trump and his ilk remind us exactly why the framers of the 14th Amendment wisely disqualified insurrectionists from running for office. And Bellows reminds us of the courage needed to defend constitutional government.
In the waning days of 2023, I saw two movies that warrant placement on the best movie list. The witty “American Fiction” simultaneously skewers academia, limousine liberals, Hollywood, publishing companies and racist assumptions. It depicts an erudite Black academic who, as a lark, writes the sort of exploitive “Black” story that Whites gobble up. There was no better performance last year than Jeffrey Wright’s. His unfolding horror at his stunt’s financial success is simultaneously hilarious and poignant. Intertwined with the comedy is a moving story about a uniquely troubled family battling old wounds, imperfect memories and dementia. And the movie manages to accomplish all that without pretension or cant.
In a different vein, Netflix’s “Bank of Dave” is a genuinely sweet story of communities left behind, local pride and empathy. A businessman in Burnley, England — a manufacturing hub hard hit by economic turmoil caused largely by big banks’ mistakes — decides to start a community bank. Stuffy London bankers are not amused. You know where this is heading, but that does not detract from the joy you experience along the way. It might even boost your faith in the power of communal activism.
Every Wednesday at noon, I host a live Q&A with readers. Read a transcript of this week’s Q&A or submit a question for the next one.
Guest: What will happen to DeSantis campaign staffers and advisers? Will the GOP consultants who worked on Florida Gov. Ron DeSantis’s campaign for president face any consequences? Will future candidates be like “Oh, you fumbled the DeSantis presidential campaign? Sorry, I’m not looking to hire people who are bad at their job.”
Jennifer Rubin: Political operatives can (and often do) lose only to work on future campaigns. In this case, they have a built-in excuse: No campaign could have saved a candidate that bad.
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