Perspective 133. Trump the Insurrectionist: Ineligible for Public Office?
Two states (so far) have judged Donald J. Trump to be disqualified for public office in the United States under Amendment 14, Section 3, of the U.S. Constitution. Given that this provision dates from the Civil War period, can it really be said to apply to Trump’s more modern mischief, as pernicious as it may have been?
Yes. By the plain wording of the 14th Amendment, Trump’s behavior on January 6, 2021, clearly qualifies him for disqualification. But will the Supreme Court, despite its supposed embrace of “originalism,” stick to the plain meaning of the words? Don’t count on it.
In perspective, eight officials have been removed from public office under the 14th Amendment. Six had served in the Confederate army; no debate there. Another was the first elected socialist Congressman, Victor Berger of Wisconsin, whose opposition to U.S. participation in World War led Congress in 1919 to refuse to seat him, under the 14th Amendment. The eighth was a New Mexico County Commissioner who was more recently deposed, quite relevantly, for his participation in the Jan. 6 storming of the U.S. Congress.
The fact that this disqualification was imposed on so few of those who fought for the Confederacy was a reflection of the amendment’s broad acceptance. Thousands who might have sought office were deterred from doing so by the sure knowledge that they would be disqualified. It was only with the explicit granting of amnesty, something made possible in the amendment itself, that former Confederate supporters could return to office.
The 14th Amendment states quite simply that any officer of the United States who has taken an oath to defend the Constitution, but “shall have engaged in insurrection or rebellion” against the United States, shall no longer be allowed to hold office. A simple dictionary definition of insurrection defines it as “an act or instance of rising in revolt, rebellion, or resistance against civil authority or an established government.”
Donald Trump was clearly involved in “resistance against civil authority” before and on January 6. He and his collaborators organized a conspiracy to submit entirely fallacious slates of electors from seven states, and to have Congress throw out the certified slates in favor of his fake electors. He tried to force the Vice President, as presiding officer over Congressional certification, to violate official proceedings and commit illegal acts. He then beseeched his hooligan hordes to descend on Congress and “fight like hell.” If this is not an act of insurrection, then the word has lost any real meaning.
The claim is made, by the minority on the Colorado Supreme Court and others, that the amendment does not apply to Trump because he has not been convicted of insurrection. This is nonsense. The provisions of 14:3 are not a penalty for a past criminal act, but a statement of qualification for holding future office. None of those disqualified were formally convicted or penalized for insurrection; they were simply deprived of the privilege of holding public office once again after they had violated their oath of office.
As has Donald J. Trump. But will the courts show the wisdom and the courage to deny him a second opportunity to misgovern, even worse than his first farce? If the “originalists” were really focused on the intent of the framers and the plain meaning of their words, they would send Donald packing. But unfortunately this is almost certainly not going to happen.