Why The Hesitation Over 14th Amendment, Section 3?
We need to have a conversation on why we have rule of law and why we’re supposed to hold people like Trump accountable for such egregious crimes and failed coup attempts in moments like this.
Charles D. Ellison | Publisher’s Riff
Two bombshells dropped on the Trump campaign this week: 1) the Colorado state Supreme Court - at the urging, actually, of 4 Republican voters and 2 Independents (per state law) - determined that he should be removed from the Centennial state’s primary ballot; and the Detroit News presents clear phone audio of Trump, along with Republican National Committee chair Ronna McDaniel, pressuring two GOP Wayne County, Michigan Board of Canvasser members (in organized crime fashion) not to sign the certification of the 2020 election. But what’s also happened this past week is a lot of strange commentary and hesitation in pundit world over applying the U.S. Constitutional provision the Colorado court cites and that outright forbids what Trump did on that phone call to Michigan: 14th Amendment, Section 3. For those who don’t know and haven’t read it, here it is …
It’s highly likely most Americans don’t know about this very useful provision in the U.S. Constitution - which was, for glaringly obvious reasons, enacted after a brutal Civil War of 1.5 million American casualties - when you see basic, but very needed recent headlines like this …
Most Americans, seeing the news alert, were probably scratching their heads as to what exactly was going on and how exactly a presidential candidate (regardless of the person) could be removed from the ballot. But it is very simple: there’s abundant evidence that Trump did, indeed, engage in insurrection against the federal government as he attempted to block the peaceful transition of presidential power from his administration to the next one. Democracies don’t do that, especially ones with clearly invoked Constitutional provisions that absolutely forbid it.
Yet, there’s hesitation from much of the pundit class on whether courts should even go here. It explains the reason behind media ignoring “14.3” lawsuits and stories for a few years as organizations like Free Speech for People carried out its longtime “14point3” campaign amid much civic ignorance. Much of the hesitation stems from fear of what a Trump removal from the 2024 ballot would mean … or what it would spark. Republicans themselves are pushing that fear through active advocacy for “civil unrest” should Trump be held accountable …
The thinking goes: If Trump was able to make 2,000 insurrectionists attack the U.S. Capitol or convince thousands of “MAGA”-others to intimidate election workers doing their jobs, what stops him from prompting his followers to unleash violence in if he’s removed from the ballot? Some on his side, the narrative continues, would view the ballot removal as solely a political move and worth a response that causes instability. They believe he didn’t engage in insurrection even though he’s unable provide overwhelming evidence to show he didn’t. The best legal defense he’s been able to mount, at this stage, is lots of delay.
But do we let fascist political upstarts bully us into submission when the law is on our side? Did President Lincoln allow Confederates to just step over and dissolve the Union through force? What would our world have been like if he had, how long would official slavery have lasted? And since when did Americans get into the habit of holding back on the exercise of the “rule of law” simply out of fear it might cause instability? Of course, Americans and their legal systems don’t hesitate to impose liability and all forms of criminal and civil statute on vulnerable groups who are systematically targeted or who can’t afford a strong defense, right? For a case of this magnitude, this would be the time not to hesitate and to express vocal public support for activation of 14.3, regardless of the response from Trump’s minions and otherwise misguided lackeys. This is why we have rule of law, and this is why we’re supposed to hold people like this accountable for such egregious crimes in moments like this. Why would we be second-guessing the motivations behind Congress passing a law of this importance right after the Civil War? If they didn’t think it was useful or critical at the time, right after that conflict cracked the nation in half, they wouldn’t have done it.
With the Colorado Supreme Court decision predictably going to the appeal phase as Trump responds to it, we’ll now have to watch the U.S. Supreme Court’s next move. Conventional wisdom states the conservative majority finds Trump didn’t “engage” in insurrection because he was never convicted of it (a bogus claim considering the clear language in 14.3 which says nothing about a condition for conviction), hence the need for speed on cases in Georgia and D.C. Still, with the Supreme Court’s reputation completely muddied by allegations of corruption, perhaps Chief Justice John Roberts plays correctly and 1) not only forces Justice Clarence Thomas to recuse himself from this case (due to his wife’s role in the insurrection), but 2) manages to reason with another justice or two. And so, politically, what happens should the Supreme Court vote in favor of ballot removal?
Conventional wisdom would dictate that MAGA Republicans get emboldened. But, recent polling suggests a growing number of Republican voters would not want Trump as a nominee if he were convicted. That sentiment would extend to a Trump-nominee filled Supreme Court that Republicans voters trust - if conservative justices believe Trump was involved in criminal wrongdoing then there must be enough to that narrative to withhold a vote. Additionally, we could see a scenario where a growing number of independents who were either for Trump or on the fence would suddenly put themselves in a firmer place for President Biden. Lastly: holding Trump accountable could also jumpstart Democratic voters or Democrats who’ve found themselves discouraged by recent events. This would be the kind of political adrenaline they, and the rest of us, would need.