Disability under Section Three

Another of my Common Sense columns from Lake Champlain Weekly. This one was published on September 20th.

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There will be several attempts in the coming months to have Donald Trump barred from seeking the Presidency under Section Three of the Fourteenth Amendment. It is doubtful that individual voters have any standing to sue on this matter. Recall, that all challenges to President Obama’s constitutional eligibility to hold the office were dismissed on grounds of standing. The non-existent merits of the claims were never examined by any court. Around half the challenges to the 2020 result by Trump supporters were also dismissed on standing grounds.

There is, however, one route which could lead to a case being accepted. If a state bars Trump from the ballot, then Trump would have standing to challenge that. In the case of a red or purple state he would certainly do so. (He might pass up the opportunity to challenge such a ruling in a state he couldn’t win anyway).

Section Three is designed to exclude from office people who having previously taken an oath of office then “engaged in insurrection or rebellion . . . or gave aid and comfort to the enemies of [the Constitution]”.

The full text refers to any “office under the United States”. If the presidency is not such an office, then Donald Trump is not covered by the section, as he has held no public office other than President and even people who are covered by it are excluded from Congress, the cabinet, or being a presidential elector, but not from the presidency itself. That exposes the absurdity of this argument. It is impossible to suppose that the drafters of this section intended to exclude people from being electors for president but not from being president.

Which brings us to the question of whether Donald Trump either “engaged in” or gave “aid and comfort” to an insurrection or rebellion. These are issues which will be somewhat covered in his federal and state trials over his attempts to overturn the 2020 presidential election. He does not need to be convicted of any crime to be covered by this section, but many of the facts and arguments relating to those charges also impact his supposed ineligibility to serve. In this columnist’s view, the clearest “aid and comfort” he gave was in declining to order the Washington National Guard to secure Congress while Trump’s supporters tried to disrupt the certification of the election. Ultimately, it was Vice President, Mike Pence, who ordered the National Guard into action. Trump was fully aware of what was happening. Accounts suggest he was excitedly watching events on TV. But he consciously committed dereliction of duty by not controlling the riot.

But was this riot an “insurrection or rebellion”? These terms are not defined in the Constitution. It was an attempt to prevent the constitutional and peaceful transfer of power, so it seems probable, but the matter is clearly debatable.

However, it seems to this columnist that excluding Trump from the primary elections, even if he is disbarred from the presidency, would breach the First Amendment’s freedom of association provisions. The Republican Party may nominate whom it likes: Donald Trump, Arnold Schwarzenegger, Ronald Reagan, or Charles III. The law only controls who may serve.?

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Quentin Langley lives in New York and teaches at Fordham University and Manhattan College. His book, Business and the Culture of Ethics was published in September 2020

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