The New York Times reports that:
Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office.
Oh, Lordy, I wish they were right.
But are they?
The NYT article says:
The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.
Upon reading that, my first thought was Groucho Marx’s infamous saying that, “I don’t want to belong to any club that will accept me as a member.” But I digress. I do not adhere to such absolutist thinking about most things, and I suspect there’s a club somewhere that I might want to join, though whether there is one that would have me is another question for another day.
Returning to my new-found idols (if and only if they’re right) in the Federalist Society, they summarize their conclusion this way:
Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.
Affirming what I and many others have been saying since at least January 6, 2021, the esteemed authors of a forthcoming law review article state there is:
“abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.
“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” ….
Abundant evidence. Yes. Unquestionably fair. Without a doubt, reasonable or otherwise.
But is saying it enough? What about innocent until proven guilty, etc. Right to a fair trial. All that.
The relevant sections of the 14thAmendment to the Constitution state:
No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, … as an officer of the United States … 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.
The central question is, I think, whether the provision is self-executing or requires a judicial finding that the person in question has engaged in insurrection, etc. The least relevant question is whether Congress would give Trump a pass. Two-thirds of “each House” means what it says (originalists are stuck with that) and that’s not happening.
According to the Times, the article concludes that:
essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”
It added, “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 3 of the 14th Amendment.”
I’m fully down with that so far but the question remains, I think.
The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.
“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.
In an interview, apparently, Professor Steven Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, said those administrators must act:
“Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.
Therein lies the rub. Republican secretaries of state, many of whom are abjectly committed to support Trump no matter what, cannot be assumed to perform the asserted duty, no matter how forcefully that obligation is confirmed by Federalist Society professors. Some enterprising journalist should immediately put the question to each of the fifty secretaries of state, starting tomorrow. What they say will not, of course, be binding but still would be good to know their answers in fashioning a way forward.
As much as I desperately want to believe that Section 3 of the Fourteenth Amendment is self-executing, the cynics among us (me) do not believe anything so simple could possibly work in the political world Trump has handed down to our country. Lawsuits are going to be necessary, complicated, I suggest, by the fact that Special Counsel Jack Smith elected not to charge Trump with insurrection under the relevant statute:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. [18 U.S. Code § 2383-enacted June 25, 1948]
Why Smith did not bring that charge has not been, and likely will never be, explained, but Trump will try to drive his denial truck through that gap and, typically, more litigation will ensue if anyone tries to disqualify him through legal action.
A final observation. I just read that Alan Dershowitz, ready to defend Trump’s criminality at every turn, has reportedly declared that the 14thAmendment applies only to “those who served the Confederacy during the Civil War.” Reported in the Daily Caller (where else?) but published only in the SmartNews app, apparently. The piece notes that the “the text does not authorize Congress—or any other body or individual—to impose the disqualification in the first place.” Further, the article claims, “It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.”
That’s an odd claim for an ultra-originalist to make. That fact, moreover, undermines Dershowitz’s argument. If no mechanism for applying the law was created, the most reasonable conclusion is that Congress thought it was self-actuating. And, if it were true that the law was only to apply to ex-Confederates, it would be most reasonable to expect that the statutory text would have been explicit to that effect.
The contrary position states that
it was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination. If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures and the criteria for making so important a decision.
That argument ignores that Marbury v Madison was decided by the United States Supreme Court establishing the principle of judicial review, that the Constitution was indeed the supreme law of the land that Congress could not by itself change. While the article lists all kinds of mischief that might ensue without explicit mandates of who decides what, the reality, I suggest, is that the claimed disabilities are overcome by the fact that judicial review of all actions inconsistent with the plain intent of the statute would be available. As with many other laws in which judicial oversight is not expressly mentioned, the supremacy of federal law and the even greater supremacy of the Constitution are sufficient to warrant the conclusion that Congress did not have to established a specific enforcement mechanism for the operative sections of the Amendment. The courts were available to adjudicate any conflicting claims.
Thus, the absence of an explicit provision for judicial review does not support the speculation that the courts “might regard as a political question” the issue of whether a candidate had engaged in insurrection. No reason exists to think of that as a political question beyond the courts’ purview or that “if the controversy were not resolved by the Supreme Court, there would be a constitutional crisis.” Such imaginings are the product of an overactive ultra-originalist imagination.
Dershowitz gives himself away in the ensuing argument that,
Interpreting this post-Civil War amendment as a general provision for disqualifying candidates who some people may believeparticipated in what they regard as an insurrection or rebellion—as distinguished from a protest or even a riot—would create yet another divisive weapon in our increasingly partisan war. It would be used by Republicans against candidates who may have supported (gave “aid or comfort” to) riots such as those that followed the killing of George Floyd or other violence-provoking events. [boldface added]
The Constitution articulated limited qualifications for presidential eligibility. Beyond those neutral criteria, the decision should be made by voters, who are free to consider the participation of a candidate in activities with which they disagree. Unless an amendment was clearly intended to further limit these qualifications, the voters are the ones to decide who is to be their president.
Quite clearly, Dershowitz is fine if “the voters” decide it’s acceptable to elect a criminal who tried to stop the peaceful transfer of presidential power and who has threatened violence and further insurrection if he is elected. That is not the argument of a “constitutionalist,” at least not the one that laid the foundation for the United States. No basis exists, I suggest, for interpreting the Constitution or any federal statute as permitting the overthrow of the government if a bare majority use the ballot box rather than armed revolt to accomplish it.
That said, I believe it is entirely appropriate for lawsuits to be instituted to present to the courts for adjudication the question whether January 6 was an unlawful insurrection and, if so, whether Donald Trump inspired, incited, and directed it. If yes, he’s out. Period.
Let’s get on with it. Somebody (ACLU?) sue to bar his candidacy for the presidency and let the future of our democracy be decided.
SHINING SEA 