The Fourteen Amendment gets its day in court.
On January 6, 2021, as I sat in stunned disbelief about the depths that the Trump Administration had dragged our republic down too, I thought, “Trump should be arrested, put on trial, and shot.” In a healthy republic, that’s what you do with traitors, isn’t it? But healthy republics don’t hand power to shady conmen and demagogues in the first place, do they? However you want to see it, Jan 6 showed us all that the American Republic is not as healthy as we imagined it to be. Yes, Trump was impeached for an unprecedented third time and he received more votes against him from his own party than ever before, but the Senate waited until after he left office to conduct the trial and the Chief Justice of the Supreme Court didn’t even show up. And yes, Trump is finally facing criminal charges for his actions, but that too is still dragging out after three years, while he has gone on to commit new crimes, stealing countless classified documents and doing who knows what with them. Most troubling of all, Trump is set to win the Republican nomination and make a comeback that would be even worse. But there is a ray of hope, a silver lining, a light at the end of the tunnel, or some such cliche that may yet restore a bit of sanity and end this long, national nightmare.
The men who altered the character of the Constitution with the 13th, 14th, and 15th Amendments following the Civil War, the men who basically re-founded the nation, gave us the means to safeguard the republic and stop Trump from holding any office, ever again. Somewhat ironically, these men were Republicans, but elephants of a very different color.
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.
Fourteenth Amendment, Section 3
This coming Thursday, February 8, 2024, the Supreme Court will hear arguments is the case of Trump v. Anderson, concerning Trump’s removal from the ballot in the State of Colorado, under the Fourteenth Amendment, Section 3 of the U.S. Constitution. Trump’s largely inept legal team tried to fight this in Colorado and lost, both in the original trial and an appeal to the Colorado Supreme Court. If Trump loses at the Supreme Court, that’s it, every state will be able to remove him from the ballot with no further chance for appeal. This is exactly the situation the Civil War Generation wrote Section 3 to combat, a seditious, yet popular political figure, who has proven they care nothing about keeping their word and have no respect for the Constitution. It has taken more than 150 years for such a horrible figure to emerge and a significant portion of the public to be willing to follow him, but we should be grateful that Section 3 is here when we need it. The big question, however, is will the Supreme Court do the right thing, or will they try to find a way to worm their way out of their responsibility?
Trump Seeks Protection from the Constitution He Tried to Subvert
The Trump camp’s battle cry centers on the Fourteenth Amendment’s Equal Protection Clause. They argue that Colorado’s disqualification, based on an unsubstantiated accusation, sets a dangerous precedent. Disqualifying candidates for their political speech or opinions, they warn, could have a chilling effect on free expression and undermine the bedrock of democratic participation. Trump’s team highlights historical instances where disqualification was reserved for individuals directly involved in acts of violence, not mere assertions of inciting such acts. Additionally, they raise concerns about the standard of proof employed by Colorado, advocating for a high threshold requiring concrete evidence of insurrectionary intent.
I am sure his supporters, especially the Ultra MAGA folks, find this to be a very compelling argument, but I see it as a typical extremist tactic. From Communists to Fascist and all points in between, any extremists who attempt to operate in the democratic process are always claiming that their rights are being abuse and demanding more protection from the law, until they gain power. After that, they don’t care about the concept of human rights or legal rights, because they never believed in any such thing to begin with.
Colorado is Guarding the Gates of Democracy
Colorado’s argument is that Section Three of the Fourteenth Amendment means what it says and it empowers states to bar individuals from holding office if they have previously taken an oath to support the Constitution and then engaged in an insurrection or rebellious actions against the Constitution, including any aid or comfort given to other insurrectionists. The January 6th attack on the Capitol, they argue, falls squarely within this purview. Trump’s actions, they contend, amounted to an attempt to overturn a legitimate election outcome, a direct attack on the democratic process as prescribe by the Constitution. National security experts bolstered this argument, expressing fears about the potential threat posed by a candidate who encouraged an insurrection against the Constitution. Upholding the integrity of the electoral system, they emphasize, necessitates barring such individuals from holding office. And, as previously stated, the Colorado Courts agreed.
In his most absurd and laughable argument to date, Trump has claimed that he, as President, was not an, “officer of the United States,” and that the Constitutionally mandated Oath of Office taken by all Presidents, “[to] preserve, protect and defend the Constitution,” doesn’t mean that the President has to “support” the Constitution. What else can you expect from a man who will say anything?
Brief Amicus Curiae
In addition to the briefs filed with the Supreme Court from the parties most directly involved in the case, many amicus curiae briefs, “friend of the court” briefs have been filed by other interested and knowledgable parties. I have found none from any knowledgable or noteworthy people who are making an argument in favor of Trump, but there are many substantive briefs very unfriendly to Trump, including one from three Former Republican Governors, one from twenty five distinguished Historians of the Civil War and Reconstruction era, and one from well-respected Federal Judges, including Former Judge Luttig, who convince Vice President Pence not to follow Trump’s unconstitutional orders on Jan 6. On point after point, these briefs go into exhaustive historical detail to explain how and why we know that Trump engaged in insurrection and should be removed from the ballot. MAGAs and other “Real Conservatives” can disparage “intellectual elites” all they like, but they cannot change the facts. These people know what they are talking about. They don’t simply make things up, like Trump.
But the Question Remains
What will the Supreme Court do with a case so lopsidedly balance against Trump? This court, with a Republican appointed, Conservative super majority — with three justices who are on the bench thanks to Trump — have the opportunity on February 8 to be monumentally brave in defense of the Constitution and the republic it lays out. Or they can open the door to future insurrectionists and greatly weaken the safeguards built into the Constitution. I really doubt that they will directly rule in favor of Trump, but will they find a way around the truth; a way to avoid doing the right thing? Will they see this only in terms of Trump and what he might do for them, or against them? Or will they see this for what it really is? The Fourteenth Amendment, if not the entire Constitution, is on trial next Thursday. As Benjamin Franklin warned, we do not automatically live in a republic, now and forever. It is only a republic, “if you can keep it.”