(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . A Basic Analysis of the Proper Interpretation of the 14th Amendment [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2024-01-01 Perhaps the most significant legal issue we face as Americans is whether the 14th Amendment to the Constitution bars Donald Trump from running for President. There have been many opinions expressed about how the amendment should be interpreted, and the matter is likely to end up in the Supreme Court. In order to determine how the Court should rule on this highly politicized matter, one should look at their decision in another recent politicized matter, specifically Dobbs v. Jackson Woman’s Health Organization. The Court there held that Constitutional analysis must begin with the language of the constitution, and that since the Constitution made no mention of the right to an abortion the right had to be somehow implicit in the constitutional text. (Dobbs decision pages 5 and 9) The language of Section 3 of the 14th Amendment, is very direct: “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”. An analysis of this amendment must start with the proposition that a challenged person must have engaged in an insurrection, otherwise the amendment has no application. The concept of an insurrection is that it is an attempt to prevent the government from functioning, usually by force. Firing shots at Ft. Sumpter was an insurrection. Preventing the congress from carrying out its work by force is an insurrection. For the purpose of analyzing the application of the provisions of the amendment to Mr. Trump we must start from the position that Mr. Trump is an insurrectionist, if he is not there is no point indiscussing the remaining provisions. It has been suggested that although the amendment says it applies to any office under the United States the amendment does not apply to the office of President, and therefore an insurrectionist can be elected president. It is clear that the President is an officer, both civil and military, of the United States. The Constitution says so in Article II section 1, which states that “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years.” The president also holds the office of Commander in chief of the military. It is also clear that the President has to swear an oath to defend the Constitution. Article VI of the constitution requires that all executive officers of the United States shall be bound by oath to support the Constitution. No specific form of language is specified by this provision and there is nothing in the article that requires that the word “support” be part of an oath. The oath required of the President specified in Article II Section 1 – that he will “preserve, protect and defend” the Constitution of the United States - is even broader and necessarily includes supporting the constitution. The arguments that the president is not an officer or did not swear the proper oath to support the constitution attempt to insert into the text of the 14th Amendment an exception to the term “officer” that the term shall not apply to the office of President, and an exception to the taking of an oath that it can only be a certain form of oath – exceptions which are not found in the language of the amendment nor anywhere else in the constitution. The conclusion of these arguments, which is generally not stated, is that the president, the most powerful office of all, may be held by an insurrectionist, but that lesser offices cannot be so occupied. No explanation has been provided for the obvious question as to why the amendment or its drafters would have intended for the insurrection disqualification to apply to every federal office except the most important one, or why an insurrectionist should be allowed to be the President - the most powerful officer - but not allowed to hold any lesser office. And in fact the debate that took place in congress before the passage of the amendment shows that it was intended to apply to all officers, including the president. Allowing an insurrectionist to be president should not be based on conclusions that are not clearly written in the constitutional text and – given the seriousness of the situation - should not be read in by implication. Other arguments that have been raised include that the application of the 14th Amendment to Mr. Trump should be decided by the voters, or that the 14th amendment does not apply unless there is first a criminal conviction. These arguments again attempt to avoid the plain meaning of the language of the constitution which states that no person shall hold any office who engaged in the prohibited acts. There is no language that requires disqualification to depend on the results of an election, indeed such suggestion would render the amendment utterly meaningless – the insurrectionist is disqualified from holding office unless he is elected to the office in which case he is not disqualified. The constitution in fact says just the opposite – Article III section 2 says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” Therefore, the application of the amendment is a matter to be decided by the judiciary, and ultimately by the Supreme Court. In addition, the amendment specifically provides a procedure to remove the disqualification, namely by a vote of 2/3rds of both houses of congress. Having provided a specific procedure, common law principles require that no other mechanism can be implied. Similarly, there is nothing in the text of the amendment that states that a criminal conviction is required before disqualification, or that some further act of congress is needed to make the amendment effective. Many recent analyses of the application of the constitution have danced around the facts of what Mr. Trump did. They claim that because Mr. Trump’s supporters won’t accept the facts either of the election or the events of January 6, there is some legitimate controversy over whether he was engaged in insurrection. If they really believed he is not an insurrectionist, they should state their factual case as to why he is not, in which case their legal arguments would be irrelevant. Perhaps the unstated reason for nullifying the constitution by suggesting that an election be required to have a disqualification is the underlying unstated fear that if Mr. Trump is disqualified he will encourage, and that some of his supporters will engage in, a further insurrection, or that it will tear this country apart. Given the events of January 6, this may be a reasonable fear, and may be deterring courts from applying the 14th amendment, and inducing courts to find reasons not to apply it, in order to avoid civil conflict. However, the Supreme Court in Dobbs had an answer to this issue, stating: “We do not pretend to know how our political system or society will respond to today’s decision …. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, … and decide this case accordingly.” (Dobbs decision pg 69). One would expect the Supreme Court to follow through on this principle and decide any 14th Amendment case based on the facts and what is expressly written in the Constitution. If we are to continue as a democracy governed by laws, the requirements of the Constitution must be followed. Whether the Supreme Court will continue to apply the legal principles it has previously espoused is of course an open question. There is widespread belief that the current Court is politically motivated, and two of its members have been accused of ethical violations in participating in cases where they should recuse themselves due to obvious conflicts of interest. Unfortunately, the future of our democracy will hang in the balance. Marc Luxemburg [END] --- [1] Url: https://www.dailykos.com/stories/2024/1/1/2214877/-A-Basic-Analysis-of-the-Proper-Interpretation-of-the-14th-Amendment?pm_campaign=front_page&pm_source=more_community&pm_medium=web Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/