Part and Parcel
The Fourteenth Amendment is being challenged… and misinterpreted.
Can you challenge a paper?
Even if Trump is ineligible to hold office, is it the determination of the state overseer of elections to withdraw his name from the official ballot? Is it unconstitutional to withdraw his name? Does any court in the land have the authority to block his name from appearing on the ballot in so far as this deprives ballot access for those who might vote for him? Does the SCOTUS decision in support of those rulings that the 2020 election was not stolen provide the defense a platform to argue that it was Trump’s intention of giving aid and comfort to those who attempted to violently block the certification of the 2020 election?
The ‘paper’ are the words here of section 3 of the fourteenth amendment which states,
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. (1)
and also the history behind the passage of the fourteenth amendment:
“After the ratification of the Fourteenth Amendment, in 1868, Section 3 was used to remove former Confederates from Congress, and to keep others out of office. But, in 1872, Congress granted amnesty to those who aided and abetted the Confederacy. As a result, Section 3 was mostly forgotten — until the storming of the Capitol on January 6, 2021. Armed Trump supporters, encouraged by the outgoing President, breached the halls of Congress in order to disrupt the certification of the election. Trump watched from the White House and, for hours, did nothing to stop them. In the days afterward, many observers, including high-ranking Republicans, were calling it an insurrection. Section 3 suddenly seemed timely and prescient.” (2)
To apply section 3 of the Fourteenth Amendment, assuming there was an insurrection on January 6, is removing Trump’s name permissible? Trump is not currently in office. Unlike the Confederate officeholders who had pledged to destroy the government, Trump is not running on a platform to secede from the Union.
He will not staff his cabinet with campaign regulars — he does not purport to run in 2028. Rather unlike 2020, Trump will take advice from constitutional lawyers with an expansive view of executive authority.
Translation: the political operatives are out, the apologist authoritarians are in.
But as threatening as this sounds, is a Trump ballot entry part and parcel of an insurrection? Is it the Court’s position to intervene in an election?
Consider: The Supreme Court of the United States has intervened in an election.
In Bush v. Gore (2000), by a vote of 5–4, the Court ruled that the Florida Supreme Court could not order the recount of 61,000 ballots that the vote tabulation had missed. (3)
For the reason that ordering the recount would, in the opinion of Justice Antonin Scalia, breach the rights of the Campaign to Elect George W. Bush, whose alleged win had not been certified. Hence, the state procedures to recount “contested votes,” and the Florida Supreme Court in upholding those procedures were blocked by the US Supreme Court.
During the second Trump impeachment trial, Congress, who lacked standing to intervene in the Florida case, saw a reenactment of election intervention. Hadn’t the House decided? That Trump’s charges did not reach a verdict in the Senate to remove him from office for committing “to overthrow the government of the United States,” does not remove his culpability.
The point here is to take Trump out of the equation and consider the collective sanctity of the nation, which is where section 3 applies, as well as the balance of the fourteenth, which was written explicitly to expand the Constitutional underpinnings of a government by, for and of the people, manifested as a institution ruled by laws.
There are two main conclusions that Baude and Paulsen (4) reach. First, January 6th was an insurrection — shorter in duration than the Civil War, obviously, but with no less of an intent to subvert the constitutional order. Second, because Donald Trump took an oath to preserve and protect the Constitution when he was sworn into office in 2017, and because Section 3 explicitly disqualifies any insurrectionist who has taken such an oath, it applies to Trump. They write that, whatever one calls January 6th, “such conduct is covered by Section Three, and is disqualifying.” The fact that a law has not been dusted off in decades, they note, does not render it moot: “The First Amendment is old too, as is the entire original Constitution. But both remain in force.”
Can a nation exist if its constitutional right is violated? And would not the courts be part and parcel of such violation if the courts did not apply the other sections of the fourteenth, eg. equal protection?
Supporting the state’s attempt to block the name on the ballot is a relatively benign method for blocking an overthrow of the Constitution.
It’s not about protecting the outcome, it's about equal access into the process of getting there. Do we shred a process for the purpose of proceeding with an abuse of unaligned institutions, here the electoral boards and the Secretary of State?
There are already restrictions on the people Americans can vote for: a Presidential candidate must be a natural-born American over the age of thirty-five, and the Twenty-second Amendment prohibits a two-term President from running again, even if voters are willing to elect them. There is also precedent for enforcing these restrictions on the state level. Before Neil Gorsuch became a Supreme Court Justice, he sat on the U.S. Court of Appeals for the Tenth Circuit. In 2012, he ruled that Scott Gessler, the Republican secretary of state of Colorado at the time, had the right to “exclude from the ballot candidates who are constitutionally prohibited from assuming office. (5)
The breadth of the equal protection clause of the fourteenth runs as deep as it runs wide, as all elected and appointed officials are sworn to uphold the Constitution of the United States… aren’t they?
November 11
Notes
1-Wikipedia, “Fourteenth Amendment”
2– Sue Halpern, “A High-Risk Legal Effort to Keep Trump Off the Ballot,” New Yorker, November 9
3-Wikipedia, “Bush v. Gore”
4-Baude and Paulsen, article to appear in 2024, University of Pennsylvania Law Review,” cited in Isaac Chotiner, “The Constitutional Case for Barring Trump from the Presidency,” New Yorker, August 23. Quoted in Halpern.
5-Halpern, op. cit.
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