Use the Constitution to Protect the Constitution
Only by twisting the Fourteenth Amendment’s text into absurdity can you claim it doesn’t disqualify Trump from re-election.
ONE OF THE MANY CASUALTIES of Donald Trump’s chaotic, never-ending assault on reality is our collective ability to call a spade a spade. The challenge to Trump’s eligibility to be president under the Fourteenth Amendment, Section 3 of which bans insurrectionists who previously swore an oath to support the Constitution from ever holding state or federal office again, is a case in point. With all that we now know about Trump’s actions leading up to and on January 6, 2021, it should be clear that he engaged in insurrection and thus is constitutionally barred from office. (If you want to get into the specifics of constitutional interpretation on this matter, check out this thorough treatment by Ilya Somin.) And yet, in the politosphere, the effort to disqualify Trump on a Fourteenth Amendment basis is widely regarded as a partisan “long shot,” and even many Trump detractors decry it on the grounds that Trumpism can only be defeated at the ballot box.
That’s the same naïveté that got us into this mess in the first place. It presumes that, if he loses next year, Trump will gracefully concede, making a dignified speech as he exits stage right, and the Republican party will magically revert to some form of sanity. If only. Let’s not forget that Trump has talked up fraud in every general election since 2012, and nearly two-thirds of House Republicans voted to overturn the 2020 election. Many of those who refused to do so were unceremoniously ejected from office or forced to retire, leaving the craziest of the crazy and the dumbest of the dumb—Jim Jordan, James Comer, Marjorie Taylor Greene, et al.—to occupy the party’s various centers of power.
The fate of our democracy is not the sort of thing we can, or should, leave up to yet another round of wishful thinking that there is anything on God’s green earth that might chasten Trump and send him slinking away to Mar-a-Lago as a spent force, rather than transforming him into some new, more virulent form of political pathogen.
But all of this is beside the immediate point. Trump swore an oath to the Constitution, and he then engaged in insurrection. No matter what anyone thinks about the politics of this issue, unless “Congress [were to,] by a vote of two-thirds of each House, remove such disability” (that is, lift the Fourteenth Amendment’s relevant restriction), then the Constitution simply does not allow him to be president again. And, from the lowest court to the highest, all the judges who hear the various eligibility cases must accept that straightforward fact, as well as another that may be even more uncomfortable. Those same judges also swore an oath to support the Constitution—the same one Trump so egregiously violated—and, whether they like it or not, that oath requires no less of them than that they remove Trump from the ballot.
LAST WEEK, THE COLORADO SUPREME COURT heard arguments in the Fourteenth Amendment case most likely to reach the U.S. Supreme Court in the next several months. By way of background, in mid-November, a trial judge in Denver determined that, as a legal and factual matter, Trump’s actions leading up to and on January 6th “easily” satisfy the legal definition of insurrection. Although this finding alone should have rendered him ineligible under any plain reading of the amendment, that judge agreed with Trump’s argument that the presidency was the sole exception to the insurrectionist ban. As Trump’s lawyers explained in their appeal, “the presidency is not an office ‘under the United States,’ the president is not an ‘officer of the United States,’ and President Trump did not take an oath ‘to support the Constitution of the United States.’”
Only highly trained lawyers could, with a straight face, contend that the constitutionally mandated presidential oath to “execute the Office of President of the United States” and “preserve, protect, and defend the Constitution” neither refers to an “office” nor binds the president to “support” the Constitution. You can’t make this stuff up.
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While that style of exquisitely pedantic close reading will assuredly characterize Trump’s case in this and similar lawsuits going forward, the most illuminating moments in the hearing came when the justices stepped back from minute discussions of “post-positive modifiers” and so forth to bring the big picture back into focus. Under repeated questioning about the logical endpoint of Trump’s position, the former president’s lawyer, Scott Gessler, appeared to suggest that voters could in fact overcome any constitutional limits on eligibility. He claimed that Jefferson Davis could have been elected president following the Civil War if the electorate so chose—and that, were Barack Obama to attempt to run for a third term, “states [would] not have the authority” to challenge his qualification (the Twenty-second Amendment be damned, apparently).
Not only that, but Gessler argued that under his strained definition of “office” and “officer,” the president is exempt from the Foreign Emoluments Clause—so presidents could accept any gifts and benefits they wanted from foreign powers—and aspirants to the presidency could be subject to a religious test. Regarding Jefferson Davis’s being eligible for the presidency, the bench made repeated reference to the “absurdity doctrine”: How could there be a legitimate interpretation of the Constitution’s language, or the of the intent of the drafters of the Fourteenth Amendment, that yields such an absurd result as disqualifying traitors from lesser governmental positions while leaving the top job open to any who would apply?
No straightforward and commonly accepted definition is safe in a Fourteenth Amendment case, and that’s especially true when it comes to a load-bearing word from Section 3 like “insurrection.” Gessler presented an oddly specific, revisionist characterization that, naturally, would exclude the events of January 6th. A proper insurrection, he said, “has to be longer than three hours” and “the geographical scope has to be broader than one building.” As far as the magnitude of violence, “a riot is consistent with using flagpoles and broken-up bike racks as weaponry,” whereas “an insurrection is organized, deadly force that’s going to nullify government authority.” When he added that the goal of the mob on January 6th “wasn’t to nullify governmental authority,” one of the justices audibly gasped. Another noted that January 6th could be a “poster child” for insurrection.
In response to all the quibbling about definitions, one member of the bench finally alluded to the famous line by U.S. Supreme Court Justice Potter Stewart, who sheepishly admitted his own inability to precisely define “hard-core pornography” and instead pointed to a common-sense standard: “I know it when I see it.”
I know it when I see it. That, in a nutshell, captures so many of the challenges in dealing with someone like Trump, who is a master of obfuscation, deception, whataboutism, and good old-fashioned lying.
Look at the footage again. January 6th was obviously an insurrection, and what’s also obvious is that Trump is the one who was responsible for it. We all know what happened—millions of us watched live coverage of the attack—but it bears repeating: The then-president summoned his followers to Washington, filled their heads with rage-inducing lies about the election, and then, knowing full well they were armed, directed them to the Capitol. Even the most charitable explanation for his actions—that, as ridiculous as it sounds, he didn’t intend his calls for violence to be taken literally—still entails his using an armed mob to try to intimidate then–Vice President Mike Pence and Republican congressmen into violating their oaths of office and, yes, to “nullify the government” as a result.
AS CLEARCUT AS THAT CASE MAY SEEM, the argument for Trump’s disqualification is even easier than establishing his culpability for the insurrection itself. The plaintiffs in Colorado (and elsewhere) have focused on the part of the Fourteenth Amendment that applies to those who “engaged in insurrection or rebellion against” the Constitution. But there’s another prong in the disqualification clause: Anyone who has merely “given aid or comfort to the enemies” of the Constitution is also disqualified from office.
Trump’s words in the immediate aftermath of the attack on the Capitol alone clear that hurdle. Despite having watched the violence for hours, Trump’s message to those who had stormed the Capitol was one of adoration rather than condemnation: “We love you. You’re very special.” At Trump’s first major campaign rally—held in Waco, Texas, no less—he played a sanitized, hagiographic video of January 6th that glorified the event in accordance with his view that, as he told a CNN town hall earlier this year, “it was a beautiful day.” He contributed his voice to a rendition of the national anthem sung by the “J6 Choir”—a group of January 6th inmates, some of whom are incarcerated for beating police officers—which he plays at rallies, and one assumes that that visibility raises money for them via online music sales.
“I call them the J6 hostages,” Trump recently said of all the incarcerated. “Not prisoners, I call them the hostages.” Not surprisingly, he has spoken favorably of pardoning the nearly one thousand people who have either pleaded guilty or been found guilty by a jury of their peers of charges related to January 6th. Presumably, this would include even those convicted of seditious conspiracy—plotting to overthrow the government by force. As Special Counsel Jack Smith put it in a recent filing, Trump, with his talk of pardons, is “publicly signaling that the law does not apply to those who act at his urging regardless of the legality of their actions.”
If all of that is not “aid or comfort to the enemies” of the Constitution, then what is?
WITH SUCH AN OBVIOUS CASE for Trump’s disqualification, the hesitation among judges thus far appears to be less about clear legal standards and more about the political implications of following the Constitution. A judge in Michigan, for example, washed his hands of the matter by claiming that this is a “nonjusticiable” political matter—that is, that only a political institution like Congress can determine whether the Fourteenth Amendment applies to Trump. Because Congress these days is such a font of equanimity and wisdom.
That approach tracks closely with political commentators who argue that Trump can only be defeated at the ballot box. But saying the electorate should settle this dispute flips the Fourteenth Amendment on its head. The entire point of the disqualification clause was to remove the choice from the electorate.
Here, history may not be repeating itself, but it sure does have a strong rhyme. In the wake of the Civil War, the South tried to return to Congress the same representatives who had violated their oaths of office by initiating the war and swearing fealty to the Confederacy. As the Joint Committee on Reconstruction noted in 1866, Southerners elected “notorious and unpardoned rebels . . . who made no secret of their hostility to the government and people of the United States.”
In response, Congress drafted the Fourteenth Amendment’s disqualification clause to create within the text of the Constitution itself a self-defense mechanism, one that could prevent it from being destroyed by wolves in sheep’s clothing. It was targeted at oathbreakers—for good reason—but it was also targeted at the voters who supported them. The nation that ratified the amendment considered the matter of oathbreaking insurrectionists far too grave to be left to an electorate that might one day find itself once again in the thrall of unreformed insurrectionists.
The disqualification clause was also intended to deny insurrectionists a political platform from which they could rewrite history and propagate lies about the past. In the 1870s, in an effort to move beyond the Civil War, Congress granted amnesty to most former Confederates (aside from several hundred senior leaders), lifted their Fourteenth Amendment disqualifications, and walked away from Reconstruction. Left to their own devices, former Confederates and their supporters neutered the guarantee of equal protection under the law—another key element of the Fourteenth Amendment—and ushered in a century of institutionalized Jim Crow violence. Southerners also went on to propagate the myth of the “Lost Cause,” the idea that their war had been a righteous one in defense of those bygone, halcyon plantation days in which happy slaves and chivalrous masters lived in peace and harmony.
AND SO HERE WE ARE. A former president who led an insurrection against the Constitution—with a political movement at his back, and a once-great party in his pocket—is promising to cleanse the “blood of the nation” and destroy his “vermin” political opponents. And he believes that his judgment of our political moment—and his judgment alone—“allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”
That is of course dead wrong, and it is also a clarion call that this is the moment to break the glass and invoke the Constitution’s only mechanism for self-defense against that kind of threat.
In his closing remarks, one of the plaintiffs’ attorneys in the Colorado case noted that “our Constitution commands no armies, has no police force.” But the Constitution does have guardians charged with protecting it, although they wear robes rather than badges. And if judges across the land are willing to do their duty—to uphold their oaths by removing Trump from the ballot as the Constitution so clearly demands—then the republic may yet be saved.