Impolite Company: The Democrat Plot to use the 14th Amendment to Stop Donald Trump
Any Constitutional Conservative worth their salt should look at the events of January 6th, 2021, and come away with the notion that the mob that trespassed the halls of Congress clearly crossed a line from a lawful protest protected by the 1st Amendment and morphed into a mob that was engaging in an illegal riot. This is beyond dispute, however, while criminal trespassing is a crime, it falls very short of a rebellion, or insurrection. These undeniable facts have not stopped Marxist tyrants on the left from attempting to use the 3rd Clause of the 14th Amendment as a political cudgel to punish and forever get rid of their political boogeyman, the mean tweeting orange man, Donald Trump. They are aided in their endeavors by two “conservative” legal scholars William Baude & Michael Stokes Paulsen, who have recently released a 124-page journal article in which they argue that Donald J. Trump, and anyone else who either participated in the January 6th riot or gave aid and comfort to those who did are completely ineligible to ever run for political office ever again. As of the writing of this article there are 5 states (Colorado, Georgia, Michigan, Minnesota, and New Hampshire) who are contemplating removing Trump and other Republicans from the ballot citing the 3rd Clause of the 14th Amendment, a move that is sure to have dire consequences for the stability of our body politic. Before we get too far into the weeds, let us examine the plain language of the Clause.
“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.”
The historical context of the 14th Amendment came directly out of the fallout from the US Civil War. The Amendment was ratified in 1868 and the intent was simple: The United States will not allow any former Confederate officials from now serving in any capacity in either their state governments, or in the national government. After former Confederate States began to rejoin the Union, many former CSA officials were re-elected and sent to Washington as Senators or Representatives. The most audacious of these was Alexander Stevens, the former Vice President of the Confederacy, and author of the infamous “Cornerstone Speech” in which he stated that the “Cornerstone” of the new Confederacy was slavery. This was unacceptable to the Republican controlled Congress, who refused to seat these former rebels. To codify this decision, the 3rd Clause of the 14th Amendment was adopted.
Baude and Paulsen, both of whom claim to be “originalist” jurists argue quite compellingly that “Section Three remains an enforceable part of the Constitution, not limited to the Civil War… [and that Section 3]] is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.” They also argue very well the point that Clause 3 is still a part of the US Constitution unless it is repealed by amendment. Fair enough, but there are some dubious claims made in the journal by the authors that warrant some investigation in this author’s opinion. I would point the attention of the reader to the second sentence of the clause that states that Congress can remove such disability by a two-thirds vote of both Houses. This very thing has occurred twice in history, the first being in 1872, and the second in 1898. There is not enough space within this article go to into detail regarding these Acts of Congress, but suffice it to say that the trouble with the clause in question is that it gives Congress the plenary power of pardoning power, a power that had been traditionally reserved for the Executive Branch solely.
When questioning the constitutional power to pardon criminals, the most famous example in US History is when President Jimmy Carter granted a very broad pardon to the Vietnam Draft Dodgers in 1977. No one questions the authority of President Carter to grant the blanket pardon to “all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder…” We must bear in mind the political environment that the 39th Congress found itself in when they drafted the 14th Amendment. Lincoln had been assassinated, and he had selected Andrew Johnson, a Southern Democrat to be his Vice President. Johnson held deep Southern sympathies that were a political thorn in the side of the Radical Republicans in Congress. Had Lincoln been President, then this clause may not have been written. While “What if history” is a dangerous game for the historian to play, the point is the Congress grabbed enumerated powers that traditionally belonged to the Executive Branch and codified it into a Constitutional Amendment. It is not surprising then that we are now dealing with a potential Constitutional Crisis. Separation of Powers is a very delicate thing to balance after all.
Regardless, the power to put aside the “self-executing” disqualifications of the 3rd Clause now resides with the Congress. But as noted, in 1898, two-thirds of Congress said “[T]he disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.” Baude and Paulson argue that because the Act of Congress contains the past tense in the words “imposed” and “heretofore incurred” the meaning only applies to previous violators of their oath, and therefore, the 3rd Clause would apply to any Maga Republican’s that the anti-Trump crowd wishes it to.
The question at hand is this: Did the events on January 6th, 2021, constitute an insurrection or rebellion, and if so, then what constitutes the giving of aid and comfort to those who undertook said action? Out of the many people who have been arrested and sentenced in what amounts to in this author’s opinion as a violation of their 8th Amendment rights not even one has been charged with insurrection, or rebellion. 15-20 years in prison seems excessive to most people for a criminal trespassing charge that usually is a misdemeanor. So, can we say that the people who went into the Capital building are insurrectionists? In answering this question, Baude and Paulson’s arguments fall apart. In their own words (in a footnote on page 112) they betray their cause by relying on the Stalinist Show Trial conducted by the unconstitutional and controversial January 6th Committee in Congress. “In describing these events, we rely generally here and throughout on the public record assembled by the House January 6th Committee. Final Report, Select Committee to Investigate the January 6th Attack on the United States Capitol, H.R. 117-000 (117th Cong., 2nd Sess.)” Not biased at all…
Let me be very clear here, there is no doubt that the 2020 election for President was a complete disaster, and in many cases conducted in violation of State Constitutions. The Wisconsin Supreme Court has said as much, and the same is true in Pennsylvania. However, it was the responsibility of the Legislators in these States to take back their plenary power and select electors as they saw fit when the election became tainted beyond repair. They did not and allowed Democratic Electors to cast their vote for Joe Biden, and then certified that vote, and sent it to Congress. Had they done their duty, and rejected the election results in their State, as unlawful and invalid, they could have prevented all of this, however, they instead certified the vote out of cowardice. The people were upset, and then were let into the building by Capitol Police. But was this an insurrection? It doesn’t have the hallmarks that one would expect to see when compared to coups in history. Where were all the armed insurrectionists? They planned to storm the Capitol building, and steal the certified Electoral College Ballots, but all of them forgot to bring their guns? It was not an insurrection; it was a riot. Still criminal, still a tragedy, but not on the same level as the US CIVIL WAR!
But let’s play along, let’s say that it was an insurrection. Where does that leave the 45th President? Did he tell them to “Storm the Capitol”? Obviously, Donald Trump did not lead these men and women into the Capitol building the way that Washington took troops across the Delaware, so in what way did he engage in insurrection or rebellion? How did he provide “aid and comfort” to the insurrectionists? He told them to “peacefully protest” at the Capitol building. He suggested to Mike Pence that he did not have to certify the ballots. I personally disagree with that legal claim, but that is not a coup.
Finally, let’s talk about the implications of this interpretation if pursued by the left. Do they really want to open this can of worms into our body politic? Who decides what is a riot, and what constitutes the automatic “self-executing, operating trigger” of the disqualification arm of the 3rd Clause of the 14th Amendment? Make no mistake, the left is not just going after Donald Trump with this strategy. They already tried it with former Congressman Madison Cawthorn, and have suggested using it against Jim Jordan, Ted Cruz, and Josh Hawley. They will use this as a cudgel to get rid of anyone they deem politically undesirable. Finally, if they get away with it, the Republicans can do just the same. If riots are insurrections, then can Kamala Harris run in 2024? She did voice support for Antifa Thugs who were arrested during the 2020 BLM riots. Does this not constitute “aid and comfort” to insurrectionists? They attacked and burned buildings, to include Federal Court buildings causing over $2 Billion in damage where she said “If you’re able to, chip in now to the @MNFreedomFund to help post bail for those protesting on the ground in Minnesota.”
I really hope that the Republican Party does not engage in such behavior, just as much as I hope that the left does not. This is not a stable way to conduct free and fair elections. It will just end up further dividing Red and Blue States. The 14th Amendment was designed to heal the wounds of the American Civil War, not start a new one.
Scott Wingerter is a political junkie and historian. Scott has served 12 years in Air Force Intelligence, worked as a social studies teacher for public school for 10 years, and recently has served as a headmaster for Paideia Classical School. He holds a bachelor’s degree in history and education from Park University, and a Master’s in US History from Sam Houston State University. The opinions expressed in the article are not necessarily shared by those of the magazine.