Monday, September 18, 2023

Does the Original Meaning of the 14th Amendment (Section 3) Disqualify Trump from Future Office?

If laws are moral ideas created by the human mind and expressed in language, one illustration is the constitutional laws that establish the American presidency.  Human minds have created the American presidency through the language of the Constitution, which determines the eligibility for the office (such as being at least 35 years old), the procedure for electing the president (the Electoral College), the four-year term for the office, the powers of the office, the terms for removing (impeaching) the President, and how someone is disqualified for the office.  The American people have invented and sustained the moral authority of the American president by consenting to the language of the Constitution and thus creating the presidency as a moral idea in their minds.  

Aristotle was right in saying that the uniquely human capacity for speech or rhetorical persuasion (logos) makes humans more political than the other political animals, because while other political animals can share their perceptions of pleasure and pain, humans can use speech to share their conceptions of the advantageous, the just, and the good.  Through speech, humans cooperate for common ends in ways that are more complex, more flexible, and more extensive than is possible for other animals.  Through speech, humans can deliberate about the common interest as the standard of justice.  A just political community can be judged to be one that serves the common interest of all or most of its members, as contrasted with an unjust political community that serves only the private interest of its ruling group.

This is a distinctly human power of the evolved human mind, because while other primates can recognize the social status of an alpha male or alpha female in a dominance hierarchy, they do not have the mental capacity for creating the moral idea of someone having the constitutional authority of a leader as prescribed by the language of a constitution.   This unique capacity of the human mind for creating moral rules expressed in language is an emergent evolutionary product of the 16 billion neurons in the human cerebral cortex.

We are now using that human mental capacity to debate whether the original meaning of the language of the 14th Amendment in Section Three disqualifies Donald Trump from future office.  

Since Trump began his attempt to overturn the 2020 presidential election, there has been a growing number of people who say that Trump should be disqualified from holding any public office under Section Three.  Now, we have a long paper by William Baude and Michael Stokes Paulsen, to be published in the University of Pennsylvania Law Review, that shows how the original meaning of Section Three justifies this conclusion.   Baude and Paulsen are two of the most prominent originalist constitutionalists who are leading members of the Federalist Society.  

Despite the fact that as President Trump allowed his judicial appointments to be dictated by the Federalist Society, many of the originalists are not supporting Trump's attack on the Constitution in trying to overturn the 2020 election.  Many of the judges appointed by Trump have rejected his legal arguments for claiming that the election was stolen from him.

In contrast to those originalists who have looked for the "original intent" of lawmakers, Paulsen and Baude look for the "original meaning" of the laws, which is often broader than what the framers of the law might have intended (8-14, 33, 41).  For most of those who wrote and voted for the 14th Amendment, the primary intent might have been to punish those who had supported the Confederacy in the Civil War and to overturn the social and political regime of the South as founded on slavery.  But the actual language of the 14th Amendment states broad moral principles that extend far beyond the original intentions of those who wrote and ratified the Amendment.

Here is what Section Three says:

"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, 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 vote of two-thirds of each House, remove such disability."

I am persuaded by Baude and Paulsen in their four main arguments about the original meaning of this language.  First, Section Three is legally operative today.  Second, Section Three is legally self-executing in that it is an automatic legal disqualification.  Third, Section Three supersedes, qualifies, or satisfies prior constitutional provisions (such as bills of attainder, ex post facto laws, due process of law, and freedom of speech).  Fourth, Section Three's substantive disqualification is sweeping:  it applies to anyone who, having taken an oath to support the Constitution, has violated that oath by engaging in insurrection or rebellion against the Constitution, or has given aid or comfort to the enemies of the Constitution.

Baude and Paulsen can then apply this interpretation of Section Three to the case of Trump.  If the mob assault on the U.S. Capitol on January 6, 2021, was an "insurrection," and if Trump incited or "engaged" in that insurrection, then he violated his presidential oath to support the Constitution, and he was thereby disqualified from any future office.

In fact, majorities of both houses of Congress have determined that Trump was guilty of "incitement of insurrection" for the events of January 6th.  On January 25, 2021, a majority of the House of Representatives approved (232 to 197) this charge as an article of impeachment.  Later, a majority of the Senate voted (57 to 43) to convict Trump of this charge.  Even though this fell short of the two-thirds majority of the Senate required for impeachment, this could have been seen as a congressional declaration that Trump was disqualified from future office under Section Three of the 14th Amendment.

Now, some of the secretaries of state in the states have said that they are considering the possibility of refusing to put Trump's name on the ballots for the presidential primaries in 2024 because he is disqualified under Section Three.  If that happens, then Trump will surely file lawsuits that eventually will reach the U.S. Supreme Court.

Actually, this question has already reached the Supreme Court.  John Castro is a candidate for the Republican nomination for President, and he has filed a petition with the Court asking that the Court intervene in his federal lawsuits in 14 states that argue that Trump is disqualified under Article Three for being a candidate for the Republican nomination for President because he has engaged in insurrection against the Constitution.  He claims to have standing to bring this suit because he will suffer "a political competitive injury" if he has to compete with Trump for Republican primary votes.  John Castro v. Donald Trump has been distributed to the justices ahead of the upcoming term that begins October 2.  The Court will decide on or before October 9 whether to take up the case.

There have been a few cases in which courts have been asked to apply Section Three to January 6th insurrectionists.  For example, the state of New Mexico removed Couy Griffin from his office as elected commissioner for Otero County, New Mexico, because he had participated in the January 6 insurrection, and a group of New Mexico citizens had filed a quo warranto action against him seeking his removal from office under Section Three (Baud and Paulsen, 27-28).  A writ of quo warranto is a common law remedy that asks "by what warrant (or authority)" does someone hold a public office.

But even if one accepts the interpretation of Section Three by Baude and Paulsen, there are two fundamental questions that they do not answer--a practical question of prudence and a theoretical question of political philosophy.  The practical question is whether it would be prudent to declare Trump disqualified from any future public office.  Would the likely costs from the turbulent resistance of Trump's supporters exceed the likely benefits from denying Trump access to the ballot?

The imprudence of fully enforcing Article Three became clear even to the Congress that had originally voted for the 14th Amendment.  Section Three anticipated this by stipulating that "Congress may be vote of two-thirds of each House, remove such disability."  And, indeed, the Congress did this for a large number of Confederates who were willing to join the Republican Party and accept the expansion of rights of African Americans during Reconstruction.  One of the most prominent was General James Longstreet, who had served under General Robert E. Lee.  In 1874, Longstreet led the Metropolitan Police of New Orleans and African-American militia troops to battle the anti-Reconstructionist White League that had launched a violent uprising to overthrow the biracial Reconstruction government of Louisiana, which was a kind of precursor to the insurrection of January 6.

In 1872, the Congress passed the Amnesty Act, which removed the Section Three office-holding disqualifications from all but the most prominent Confederates.  At the same time, President Ulysses S. Grant pardoned all but 500 former top Confederate leaders.  Congress and Grant had concluded that the disqualification under Section Three was not helping Reconstruction, and it was making things worse by driving white Southerners to support the Ku Klux Kan in its violent resistance to Reconstruction.  Similarly, declaring Trump disqualified from public office might drive his supporters to the same kind of violent resistance.

There is also a theoretical question here that Baude and Paulsen do not answer.  How does one reconcile the right of the government established by the Constitution to suppress and punish insurrection or rebellion against the Constitution with the right to revolution in the Declaration of Independence?  When the American revolutionaries declared their independence from Great Britain, the British asserted their legal right to suppress that rebellion.  

The American Revolution was actually the first American Civil War because many Americans were Loyalists who regarded the American revolutionaries as traitorous rebels against the legally established government.  Some historians have estimated that as many as 15% to 20% of American colonists were Loyalists.  Similarly, there might be as many as 20% of Americans today who would say that disqualifying Trump from office is unjust.

When the American revolutionaries established their new state and national governments, those governments claimed the right to suppress insurrectionary or rebellious conduct.  Although the Constitution of 1787 was a peaceful coup d'├ętat that overthrew the Articles of Confederation, the Constitution did not explicitly recognize a right to revolution.  On the contrary, it granted to the Congress the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" (Art. 1, Sec. 8).  

In 1794, acting under the Insurrection Act of 1792, President George Washington personally led militia forces into western Pennsylvania to suppress an uprising against the national government provoked by resistance to a federal tax on whiskey distilleries.  The participants in this "Whiskey Rebellion" echoed the arguments of the American revolutionaries in complaining that the federal tax was "taxation without local representation," because the people of western Pennsylvania had not consented to this tax.

In 1796, in his "Farewell Address" to the nation, Washington stressed the sacred obligation to uphold the Constitution as established by the right of the people to make and consent to constitutional government:

The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all. The very idea of the power and the right of the People to establish Government presupposes the duty of every Individual to obey the established Government.

All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, controul counteract, or awe the regular deliberation and action of the Constituted authorities are distructive of this fundamental principle and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force—to put in the place of the delegated will of the Nation, the will of a party; often a small but artful and enterprizing minority of the Community; and, according to the alternate triumphs of different parties, to make the public administration the Mirror of the ill concerted and incongruous projects of faction, rather than the Organ of consistent and wholesome plans digested by common councils and modefied by mutual interests. However combinations or Associations of the above description may now & then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious and unprincipled men will be enabled to subvert the Power of the People, & to usurp for themselves the reins of Government; destroying afterwards the very engines which have lifted them to unjust dominion.

Here Washington foresaw people like Trump--"ambitious and unprincipled men" who can lead a "faction . . . to usurp for themselves the reins of Government."

In the months after Abraham Lincoln was elected President on November 6, 1860, the Southern States began to announce their secession from the Union and their formation of the Confederate States of America, beginning with South Carolina in December of 1860.  As indicated by the Declaration from South Carolina, they appealed to the Declaration of Independence and particularly the principle that "whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government."  This is close to the language of the Declaration of Independence, but it does not mention "the ends for which it was established"--that is, "to secure these rights" of "Life, Liberty, and the pursuit of Happiness" that belong to "all men" as "created equal."

They also argued that the National Government and the northern States had violated the Constitution by failing to fully enforce the Fugitive Slave clause (in Article 4) that required the return of those slaves who had run away into the Northern States.

For these reasons, the Confederates claimed a natural and constitutional right to refuse to accept the outcome of the presidential election of 1860 and to launch the violent insurrection that began with the attack on Fort Sumter in April of 1861.

Similarly, Trump has implicitly employed a syllogism from the Declaration of Independence to justify insurrection to overturn the presidential election of 2020:

Major premise:  The American people have the right to overthrow tyrannical government.

Minor premise:  The Democratic Party has been conspiring to steal elections so that they can rule over America tyrannically.

Conclusion:  The American people have the right to engage in a violent insurrection to stop this tyrannical conspiracy for stealing elections.

Trump's MAGA Republicans believe that this syllogism is true.  Most Americans, however, believe that the minor premise is false, and that the failure of Trump and his lawyers to present any convincing evidence for this premise was clear in the many lawsuits filed by Trump in state and federal courts that all failed because the judges could not see the evidence for it.

Similarly, while many Americans agreed with the Confederate claim to be justified in rebelling against the Union, most Americans disagreed.  That dispute was finally settled by war--or by what John Locke called "an appeal to Heaven."  

We must hope that our dispute today can be settled without war.  And we must decide whether applying Section Three of the 14th Amendment to Trump will help us avoid a new civil war, or whether doing that would make a war more likely.

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