The Disqualification Clause Debate

The 14th Amendment is one of the most important parts of the Constitution. Its equal protection clause has been used to expand many rights. Not much was said about the Disqualification Clause until recently. The Dipshit Insurrection changed that.

The text of Section 3 aka the Disqualification Clause is straightforward:

“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.”

Does it apply only to Confederates? Politico’s Joshua Zeitz has an excellent summary of the arguments against that dubious proposition:

“There is a debate among legal scholars about whether Section 3 is “self-enacting” — meaning, whether Donald Trump’s acts disqualify him, even in the absence of a conviction. There is also some, though less, disagreement as to whether Section 3 was meant to apply narrowly to ex-Confederates, rather than to establish a permanent standard for eligibility to serve in federal office.

But the history behind the 14th Amendment proves its general applicability. Conspiring, whether by violence or coercion, to overturn the outcome of an election is precisely what Confederate officers and officeholders did. They didn’t like the outcome of the 1860 election, so they tried to dismantle the United States, first by walking away, then by force.

That was what Section 3 called “insurrection or rebellion” against the United States government. It’s hard to argue that the same thing didn’t happen in the aftermath of the 2020 election. For symbolic measure, insurrectionists carried the Confederate battle flag into the Capitol on Jan. 6, marching in lock step with an earlier generation of Americans who aspired to end our system of government. That it was a bungled attempt, and that it didn’t work, doesn’t make it different.”

I concur with that assessment and that of the big guns of this debate, Judge Luttig and Larry Tribe. The real question is whether we should go there? That’s a trickier issue. I haven’t reached a firm conclusion yet, so consider this post thinking out loud.

Behind the Disqualification Clause debate is the idea that insurrectionists should be punished. Again, I agree. The question is what form that punishment should take. I’m down with all the court cases, indictments, and convictions that have declared  the January 6th attack on the Capitol an insurrection. Yet, I’m queasy about using the Disqualification Clause to bar the Dipshit Insurrectionist In Chief from office unless and until he’s been convicted on charges related to the coup plot.

The legal case for removal is solid but the political case is ambiguous. My gut instinct is that Trumpism needs to be defeated at the ballot box, not by barring the Kaiser of Chaos from the ballot. His dismal electoral track record makes me cautiously optimistic that he will lose the next general election.

The more Trump centers his campaign on the past, the worse his chances are: elections are about the future, not the past. They should also be about the common good, not the selfish interests of one candidate. That’s what happens when a major political party degenerates into a cult of personality.

I dismissed the validity of current horse race polls yesterday. Later that day, a news analysis piece by NYT number cruncher Nate Cohn had good news for Democrats. The headline says it all: Trump’s Electoral College Edge Seems To Be Fading.

The electoral college is how we elect our president, so the bedwetters should change their sheets and buck up. Do I think Cohn’s analysis is sacred script? Hell, no. It too is a snapshot of the current national mood. Between Trumpist fear mongering and the pandemic, the country has been in a bad mood for years. President Biden has taken steps to improve the national mood, but it’s been a heavy lift. The media’s obsession with his age has made that doubly hard. Do they really think Biden’s age is more significant than the GOP’s threat to democracy? If so, they should be ashamed of themselves, especially since Trump is only three years younger.

Back to Section 3 of the 14th Amendment. I’m inclined to think that Trump’s conviction in the DOJ’s coup plot case is a prerequisite for invoking the Disqualification Clause. But I remain leery of removing Trump from the ballot by undemocratic means. Also, who knows what the current SCOTUS will do with cases based on Section 3?

I’m rarely this equivocal about important issues but wearing my lawyer hat has me pondering its intricacies. It’s a close call as to what practical measures should be taken to prevent Trump’s return to office. It’s imperative to get this right.

My mind remains open. Before the Charlottesville white riot, I believed in Godwin’s Law and eschewed Nazi analogies. Those days are long gone.

The last word goes to The Band:

4 thoughts on “The Disqualification Clause Debate

  1. The standard appellate court formulation for rejecting an argument not based on the specific language of a law is: If Congress had meant the Disqualification Clause to apply only to former Confederates, it would have said so in the language of the Amendment. That language isn’t there, so the court isn’t going to read it into the text.

    As for whether an actual criminal conviction is necessary to disqualify a candidate, I’ll leave that for more sophisticated legal minds. I will point out, though, that the language of the Amendment doesn’t specify that a conviction is required. If a judge or appellate panel or the Supreme Court is going to interpret the Disqualification Clause based on the language that is or isn’t there, those tribunals are going to have to explain very carefully why any ruling doesn’t depend on the actual language of the Amendment.

  2. Note that it doesn’t require a “conviction” to bounce someone from the Presidential ballot if they are younger than 35 years old.

    It might require a court ruling to ENFORCE that provision, but it’s up to the person disqualified (by age, citizenship, blatant treason) to make the case in front of a judge.

    A few weeks ago, before all the current 14th Amendment brouhaha, I was *ahem* ahead of the pack, by suggesting that Biden offer some pardons for “insurrection”, and those who were pardoned would automatically get disqualified. Unfortunately, Biden didn’t do that in the immediate aftermath of Jan 6th (or DID he???) because most of the congressional GOP would be barred from office.

    1. My stress on convictions is more about the political side of the equation, which is just as important as the legal side. I want to give the Trumpers as little genuine evidence as possible to spin.

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