Passed by Congress June 13, 1866, and ratified July 9, 1868, the 3rd section of the US Constitution’s 14th Amendment appears as unambiguous today as when it was written:
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.
Look carefully and reread the first (very long) sentence.
It makes no hint or mention that any elected official who has sworn to protect the Constitution of the United States must be criminally convicted of insurrection. Rather, the words state that those who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof …”
Nonetheless, therein lies the crux of debate about what this means today.
Constitutional scholars – both academic and judicial – have researched and studied this clause dutifully, especially in recent years.
A law review article claiming that Donald Trump is automatically disqualified from holding elected office is getting attention in large part because it was written by two conservative, originalist law professors, William Baude and Michael Stokes Paulsen, who argue that Trump should be excluded from ballots for giving aid to an “insurrection or rebellion” in violation of Section 3 of the 14th Amendment.
The Washington Post questioned the validity of the scholars’ thesis: “… although Baude and Paulsen’s originalism is honest and conscientious, originalists outside of academia typically won’t apply their originalism if it leads to a result at odds with their conservatism. Second, there is precedent that contradicts their argument — precedent the scholars dismiss because they say it contradicts the original meaning of Section 3.”
When the 14th Amendment was drafted after the Civil War, the original meaning of Section 3 was that anyone who previously held public office and then rebelled against the US government should be automatically barred from office unless two-thirds of Congress made an exception. This constitutional provision is law and requires no further action by Congress to implement it, the article says. Courts can and should apply it, but we don’t need to wait for them to do so. Any government official, state or federal, whose duty it is to apply the Constitution must obey Section 3. It follows, the authors say, that the state officials who set the ballots for the primaries and general elections should exclude Trump. If he wants to fight that in court, he can. But there’s no need for the officials to await a judicial determination.
“To state this argument is to see why it won’t be followed by state officials,” argued the Washington Post in an opinion piece published on August 20, 2023. “Was the Jan. 6 attack on the Capitol an ‘insurrection’? Did Trump participate or give aid and comfort to the ‘enemies’ of the Constitution under Section 3? These are contentious questions of constitutional interpretation.”
From Trump’s second impeachment to his fourth criminal indictment and his very own words, I believe the answers to the Post’s questions are irrefutable:
Apart from the evidence, the case against Donald Trump engaging in insurrection is clear even by his own words.
According to CNN, Trump called for the termination of the Constitution to overturn the 2020 election and reinstate him to power in a continuation of his election denialism and pushing of fringe conspiracy theories:
“Do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION? A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution,” Trump blasted in a post on his Truth Social network and accused “Big Tech” of working closely with Democrats. “Our great ‘Founders’ did not want, and would not condone, False & Fraudulent Elections!”
Trump falsely cited election fraud as a reason to terminate the Constitution, after Elon Musk released information about Twitter’s role in limiting access to a story about Hunter Biden, says Axios.
The irony, huh?
White House spokesman Andrew Bates said that Trump’s remarks are “anathema to the soul of our nation and should be universally condemned.”
“You cannot only love America when you win,” Bates declared. “The American Constitution is a sacrosanct document that for over 200 years has guaranteed that freedom and the rule of law prevail in our great country. The Constitution brings the American people together – regardless of party – and elected leaders swear to uphold it. It’s the ultimate monument to all of the Americans who have given their lives to defeat self-serving despots that abused their power and trampled on fundamental rights.”
Republican Rep. Liz Cheney of Wyoming, an outspoken Trump critic, denounced the former president’s Truth Social statement. Cheney, who served as vice chair of the House select committee investigating the January 6, 2021, attack on the US Capitol, tweeted that, “Donald Trump believes we should terminate ‘all rules, regulations and articles, even those found in the Constitution’ to overturn the 2020 election. That was his view on 1/6 and remains his view today. No honest person can now deny that Trump is an enemy of the Constitution.”
Trump expressed support for the rioters behind the deadly January 6, 2021, attack on the US Capitol, saying in a video played during a fundraiser that, “People have been treated unconstitutionally in my opinion and very, very unfairly, and we’re going to get to the bottom of it.” Further, in a September 2022 interview, Trump said he was “financially supporting” some January 6 defendants and promised he would issue pardons and a government apology to those being prosecuted if he were re-elected.
In the aftermath of the events of January 6, 2021, in and around the U.S. Capitol, there have been calls for accountability for those who participated, as well as for those who may have helped instigate it. The breach of the Capitol resulted in numerous injuries, multiple deaths, and significant property damage. It also delayed Congress’s constitutional duty of certifying electoral votes for President-elect Joseph Biden and caused Capitol Police and other law enforcement personnel to evacuate the Vice President and Members of Congress from the House and Senate floors to safer locations. Some observers, historians, and other commentators are wondering whether the Disqualification Clause of the Fourteenth Amendment might provide a mechanism to disqualify individuals who participated in or encouraged the siege, including former and sitting government officials, from holding office.
“Invocation of the Disqualification Clause raises a number of novel legal questions involving the activities that could trigger disqualification, the offices to which disqualification might apply, and the mechanisms to enforce disqualification,” reports the Congressional Research Service. “The clause has been seldom used, and the few times it has been used in the past mainly arose out of the Civil War—a very different context from the events of January 6. It is therefore unclear to what extent historical precedents provide useful guidance for its application to the events of January 6. This Legal Sidebar describes the Disqualification Clause, explains to whom it might apply and what activities could incur a bar on holding office, and discusses possible mechanisms to implement it.”
The same Congressional Research Service report states, “Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary” and indicates that, “Section 3 does not expressly provide a procedure for its implementation other than Section 5’s general authority of Congress “to enforce [the Fourteenth Amendment] by appropriate legislation.”
There might be multiple ways Congress could enforce the Disqualification Clause, including relying on federal criminal prosecution for insurrection and treason, allowing private civil enforcement through writs of quo warranto or other procedures, enacting legislation establishing general procedures for adjudicating disqualification under Section 3, or for identifying specific disqualified individuals, or measures by the House or Senate to exclude or expel individuals from their respective houses.
In the June 7, 2022 issue of Lawfare, Roger Parloff, a Washington, DC-based journalist who was the main legal correspondent at Fortune magazine for 12 years, writes: “It’s extremely likely that at least one of those election officials will find Trump disqualified under Section 3.” Parloff continues, “There is actually a disquietingly strong case at this point that Trump should be disqualified under Section 3 as a factual matter. I say ‘disquietingly’ because the prospect of seeing his name blocked from the ballot in at least some states — though certainly not in others — gives pause in terms of both the violence it might unleash among his followers and the chaos it could bring to the 2024 presidential election. Still, the prospect of his returning to power, notwithstanding all the evidence of his having incited the Capitol insurrection, is even more disquieting.
“The decisions about whether Trump’s name can appear on the presidential ballot will be made, in the first instance, by 51 different secretaries of state. It’s extremely likely that at least one of those election officials — perhaps quite a few — will find Trump disqualified under Section 3. And that will usher in a truly unprecedented and volatile situation,” concludes Parloff.
Mechanisms to implement Section 3 of the 14th Amendment purportedly involve the secretaries of state in each of the 50 states and “territories” where people vote in the USA. The secretaries of state must approve all candidates who appear on the ballot. A single “nay” can – and will – trigger a constitutional crisis, as the election cannot proceed without the approval of all eligible voters.
The case will immediately be presented to the U.S. Supreme Court for adjudication. With three Trump-appointed associate justices, SCOTUS is heavily conservative (6 to 3).
Unfortunately, the media – mainstream and “(un)social” – have paid but mere and passing attention to Article 3 of the 14th Amendment, preferring, instead, to cover the ever-widening web of intrigue surrounding Donald Trump and his supporters from before the 2020 election to today and beyond. In effect, it’s been a case of the spider (Trump) to the flies (the media).
Back in 1964, Canadian communication theorist Marshall McLuhan coined the “Medium is the message” phrase, contending that a message could be construed by any of three ways: (1) The content of the message, per se, could be construed as the message—i.e., it is what it is and says what it means; (2) The messenger, himself or herself, can personify the message incarnate—witness such charismatic personalities as Oprah Winfrey, Michelle and Barack Obama, Hitler, Winston Churchill, John F. Kennedy, and Donald Trump. What they’re saying is secondary to the people, themselves, who are saying it; and (3) The medium is the message in that what’s most important to a message being received and re/acted upon isn’t what’s being said or by whom, but where—on Fox News or MSNBC, on Rachel Madow or Tucker Carlson, in the New York Times or New York Post, on Facebook or Truth Social.
For Section 3 of the 14th Amendment to become the message even before the general election, it’s up to us to use all the media at our disposal: posts on Facebook, YouTube, Twitter, Instagram, LinkedIn, and others … letters written to the editors of the New York Times, Boston Globe, USA Today, Washington Post, Los Angeles Times, and our local newspapers … emails, faxes, and telephone messages sent to our legislators and justices … feedback and questions sent via the websites of cable news shows and anchors, streaming services, and radio speakers.
There’s a lot of rage in this country at a lot of things, so much so that newscaster Howard Beale’s cry in the 1976 film Network, “I’m as mad as hell and I’m not going to take this anymore!” has become a kind of national mantra.
The Dow goes up. The Dow goes down. Today it’s up. Everybody is smiling. Everybody is happy. Great. Maybe I’m wrong. I don’t think I am, but maybe I am. I think people understand that with all of the spending and the uncertainty from government, we are far from standing on solid ground. But the media seem to be painting a picture of anyone who is worried enough to prepare for the future as crazy. Call them crazy. I’m crazy. You’re crazy. We’re all crazy together.
Bruce Joffe is publisher and creative director of Portugal Living Magazine.
"Exactly!" 