The 14th Amendment of
the U.S. Constitution “bans anyone who took an oath to uphold the Constitution
but who subsequently ‘engaged in insurrection or rebellion against,’ or gave
‘aid or comfort of the enemies’ of the Constitution from seeking any federal or
state office.”[1]
Did Donald Trump, when he was President of the United States, engage in
insurrection? Furthermore, who decides this and bars him from office?
During the summer of 2023,
lawyers opined on whether Don Trump is eligible to run for the U.S. presidency
in 2024. It is one thing for lawyers on law-school faculties to decide whether
Donald Trump, a former U.S. President as of 2023, is ineligible to run for
president in 2024; it is quite another thing for the U.S. Supreme Court to make
the determination; only the latter has governmental legitimacy that can legally
be enforced, for the U.S. Constitution gives the federal supreme court the task
of interpreting that constitution. In this case, the high court would be in the
position of making decisions of fact—did Trump engage in an insurrection—and
applying that decision to the 14th Amendment. “The question of
Donald Trump’s disqualification under the 14th Amendment will be
decided by the Supreme Court,” Michael Luttig, a conservative former federal
appellate judge said in 2023.[2]
Aside from the prediction, I contend that it should be.
The comment made by Luttig, who
had actually been a judge, didn’t stop lawyers who teach at law schools from
writing as if their own opinion were enough to render the former president
ineligible to run for president. Just because someone ventures an opinion does
not make it so. Even lawyers who specialize on writing in the field of
constitutional law are, after all, merely private citizens like the rest of us.
Of course, they, along with the rest of the American electorate, could decide indirectly
through voting for or against Don Trump on the basis of determinations of
whether he engaged in an insurrection. There are several problems with this
method.
First, the voters would need to
know how the framers used the word, insurrection, assuming an original
intent hermeneutic, or else what the word means in its legal sense in
2023. The electorate would also have to “research”—and some potential voters
put me off when I canvassed door to door by saying that they needed to research
the candidates (yeah, right)—the Trumps various actions that could be
considered to be insurrectionist: urging a crowd to pressure Congress on
January 6, 2020 when it was counting the states’ respective ballots of
electors, telling Vice President Pence that he had the authority to substitute
slates of Trump electors in Arizona, Georgia, and other states, pressuring
election officials in Georgia to “find” votes so Trump would win the state, and
considering the use of the military on the capitol so Congress would use his
slates of electors in states that he lost. Thomas Jefferson and John Adams
agreed in retirement that an educated and virtuous citizenry is essential to
the viability of a republic. They are also necessary for an electorate to apply
constitutional vigor even to a candidate whom some voters like.
Secondly, letting the voters
decide cannot keep Trump off any ballot prior to the election, not to mention
prior to the Republican Party’s nomination process, because an election is the
means by which voters would decide Trump’s fate. Former New Jersey governor
Chris Kristy’s assertion, “The voters of our party are going to need to
determine this question,” is neither competent nor fair to the Republic Party.
An election before the election might be feasible, but then perhaps the first
election would then de facto be the presidential election itself.
Deciding the matter by whatever
means after the Republican Party’s convention would not be fair to the party.
If election officials or a court later decide that Trump is ineligible, the
party would suddenly be left, after its convention, without a nominee for
president.[3]
Because the U.S. Supreme Court “keeps its own schedule and is not bound by
electoral deadlines, there exists the possibility that Trump could lock down
enough delegates to win the Republican nomination—or even be officially
nominated—only to be subsequently removed from the presidential ballot.”[4]
Perhaps in such a case the Republican National Committee would be tasked with
selecting the nominee, opening the door to the possibility of “back room”
political deal-making and even bribes. That rather undemocratic consequence
would be ironic if the people had been the deciders in a special election or
referendum.
So, leaving the matter up to the
voters is problematic; the matter of a nominee could ironically be decided by
committee. That leaves us with either election officials acting independently
of each other or all together, or the U.S. Supreme Court justices to decide.
Just because some citizens claim that Trump is ineligible to run for office
does not make it so. That almost all lawyers teaching constitutional law in the
United States have only one—hence undergraduate—degree in law is all the more
reason why their writings should not be taken as binding for election
officials. Even if “the case is not even close,” as William Baude and Michael
Paulsen wrote, it is not necessarily the case that, “All who are committed to
the Constitution should take note and say so.”[5]
Not only are articles in law reviews, whose editors are undergraduate law
students, not objective analysis at least in constitutional law; such writings
can be deemed political, and even instances of political activism claiming that
readers should take action of a political sort.
But should election officials of
local, state, or federal jurisdiction be the deciders? I contend that they
should not. Firstly, if even just a few officials at the local or state level
decide to exclude Don Trump, then the judgment in favor of Trump by other
election officials would be impaired because he would not be on the ballot in
every locale or state. It would be extra-constitutional (i.e., outside of the constitution)
should all of the officials in the U.S. vote on whether to exclude him, for all
of the officials, as a group, are not organized as a group constitutionally.
Secondly, election officials do not necessarily have expertise on what exactly
constitutes insurrection. Thirdly, they would inevitably be sued, whatever they
decide, so the U.S. Supreme Court would be the final decider anyway.
An alternative way that the high
court could wind up deciding on Trump’s eligibility would be deciding the inevitable
appeal that would be made if Trump will have been found guilty of insurrection
by a jury. It is significant that Trump had not been indicted on the charge of
insurrection even though 91 charges were leveled against him as of August,
2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department,
would have charged the former president with insurrection had evidence existed
to support that particular charge. Unlike the lawyers who teach in law schools,
Smith had a formal means—a grand jury and a court with a judge—to make the
charge, and he did not. Smith also had access to the evidence, which lawyers in
law schools did not have. So, it is odd that the lawyers who claimed that Trump
had engaged in an insurrection did so knowing that Smith had decided not to
level that charge. Even stranger would be such a lawyer presuming that one’s
opinion, whether in an interview or argued in an article in a law school’s
undergraduate publication, is sufficient for election officials to keep Trump
off their respective ballots.
In short, it could be argued that
because Trump has not even been charged with insurrection, he cannot be found
to be ineligible for office based on insurrectionist activities. It could also
be argued, however, that the inclusion of insurrection in the 14th
Amendment is a political rather than a judicial matter. Under this reading,
Congress could pass a law—rather than using the word insurrection for January 6th
in an award given to three Capitol Hill police employees—declaring that Trump
engaged in an insurrection, and the high court would decide the inevitable
constitutional challenge in court. But unlike impeaching and removing a
president from office, no constitutional language supports applying the
political process of how a bill becomes law.
Of all the chatter by experts and
non-experts alike, the fact that Jack Smith did not charge Don Trump with
having engaged in an insurrection is most salient to me in this case. To be
sure, the U.S. Supreme Court justices could find that if he is found guilty of
any of the existing charges bearing on January 6, 2020, pressuring
Georgian officials to “find” votes, or instigating false slates of electors in
a few states, that they constitute insurrectionist activities. The “finding” of votes, such as probably
happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption
in American politics, however. Even so, the justices could find on their own
that Trump is guilty of fomenting or agitating an insurrection. The justices
would need a suit to be brought to the court, however.
The legitimacy of the court as the final arbiter hinges on the nonpartisan nature of a judicial ruling that is based on legal reasoning. Unfortunately, the U.S. Supreme Court had its legitimacy tarnished by imprints of politics. In 2023, the media reported that Justice Sandra Day O’Conner had written the majority opinion of Bush v. Gore (2000)—the case that effectively handed the presidency to George H.W. Bush—before even the oral arguments. She had been a Republican legislator in the Arizona legislature. In signing onto the court’s majority opinion in Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade as precedent on abortion. All of those justices had been nominated by Republican presidents. In this context, the court’s ruling on whether Don Trump is ineligible to run for president would likely be seen as political, especially if the majority were to hold that he is ineligible even though the Special Counsel had not included insurrection among the charges bearing on the riot at the Capitol on January 6, 2020. The need for an impartial, judicially-oriented supreme court could not be more; in fact, the eventual undoing of the United States might be triggered by the absence of any such honest broker outside the reach of political factions.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
