A recent Colorado lawsuit claims that Section 3 of the 14th Amendment disqualifies Donald Trump from running for president. Section 3 dictates that no person who has sworn an oath to support the Constitution shall hold office if that person has later “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Some folks discount Section 3 and argue that voters should decide whether Trump deserves a second term in the Oval Office. Their advocacy for voters is respectable, but they misconstrue the law.
The question about disqualification isn’t difficult from a semantic view. Section 3 says what it says, and the Constitution proclaims it is “the supreme Law of the Land.” Section 3 is not optional.
The Constitution prevails, and voters have no legal say in disqualification any more than if they wanted to nominate a candidate who wasn’t qualified under the nation’s charter.
The Constitution places several limitations on whom voters may choose as their president. For example, the president must be a natural-born citizen who has “attained to the age of thirty five Years, and been fourteen Years a Resident within the United States,” to quote Article II with its original capitalization.
Former California Gov. Arnold Schwarzenegger wouldn’t qualify because of his Austrian nativity. As much as fans adore her, rising pop star Olivia Rodrigo, 20, would not qualify for another 15 years. Additionally, the Constitution limits presidents to two terms, so former presidents Bill Clinton, George W. Bush and Barack Obama would not be eligible.
Why can’t voters choose Schwarzenegger, Rodrigo or a former two-term president as their commander in chief? Because the Constitution says so.
Next, consider how in 2016 voters chose Hillary Clinton over Trump by nearly three million votes, but the Electoral College sent Trump to the White House. In 2020, voters chose Joe Biden over Trump by more than seven million votes. However, if voters in three states had cast some 44,000 more ballots in Trump’s favor – a miniscule 0.6 percent of Biden’s margin of victory – Trump probably would be president today due to how Electoral College ties are resolved under the 12th Amendment.
Why do we choose our president via the Electoral College and not by the direct will of voters? Because the Constitution says so.
Trump swore an oath to “preserve, protect and defend the Constitution” when he assumed office in 2017. If he has since engaged in or aided an insurrection against the Constitution, Section 3 disqualifies him from holding public office. Voters cannot legally bypass this constitutional mandate.
In a commentary for the Wall Street Journal, Georgia Secretary of State Brad Raffensperger wrote that keeping Trump off the ballot “would only reinforce the grievances of those who see the system as rigged and corrupt.”
Maybe so. But thanks to Trump’s persistent gaslighting over the years, his supporters have long imagined the system was fixed.
The grooming began as early as 2016, when candidate Trump said he would accept the election results – if he won. Yet, four months in office and disgruntled about losing the popular vote, President Trump formed a commission to investigate unsubstantiated claims that millions of undocumented immigrants had voted. The commission disbanded eight months later, having failed to uncover evidence of significant voter fraud. Nonetheless, Trump continued his baseless assertions. When he lost the 2020 election, Trump fomented the Big Lie, which echoes today.
Trump polluted the ether with the “rigged and corrupt” toxin years before Secretary Raffensperger assumed his current office in 2019.
Besides, how would Trump’s acolytes respond if their candidate were to lose the 2024 election? Would they accept the outcome? Would their grievances subside?
No matter how inconvenient, disruptive or problematic, our task is not to coddle or appease disillusioned voters. Rather, our first obligation is to preserve the Constitution.
In ratifying the 14th Amendment and Section 3 after the Civil War, our forebears wisely refused to give rebels and insurrectionists the keys to legislative halls and executive offices — as if to say “rebel once, shame on you; rebel twice, shame on us.” Section 3 still reigns supreme, in authority and counsel.
The attack on the Capitol on Jan. 6, 2021 and the conspiracies to overturn the 2020 election were assaults on the Constitution, free and fair elections, the peaceful transfer of power, and adherence to the rule of law – pillars that hold up the United States as the paragon of democratic nations.
To shore up these pillars, the Constitution requires us to determine whether Trump engaged in or aided an insurrection as these terms are understood in Section 3. If the answer is “yes,” then the Constitution disqualifies Trump from holding office, no matter what voters want. If the answer is “no,” only then would Section 3 permit voters to decide.
NOTE: The sub-headline to this column was amended on Sept. 27 at 2:17 p.m. to establish need to determine whether Donald Trump engaged in insurrection.
Erik R. Moeller lives in Pueblo.
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