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(50,960 posts)
Tue Aug 22, 2023, 06:26 PM Aug 2023

Charles Pierce: The 14th Amendment Has Always Been Pretty Clear to Me


I find it interesting that serious thought is being given to the possibility that the former president* may have disqualified himself for the presidency under Article 3 of the 14th Amendment.

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

It's always seemed fairly clear-cut to me, especially that "aid and comfort" part. Hell, on January 6, when he finally released a video telling the goon squads to go home, the former president* gave the comfort of telling them, And it also seemed to me to be a fairly neat way to answer the questions posed by any attempt by the former president* to get the job back. On the other hand, I knew that the 14th Amendment always has scared the eyebrows off the kind of people who would get behind another campaign by The Defendant. Ignoring its plain text has been an American pastime almost from the day of its passage. This has led to some remarkable perversions of its intent; corporate personhood is based in the 14th Amendment, and the Supreme Court blithely hand-waved it out of the way in deciding Plessy v. Ferguson. In his opinion, Justice Henry Brown said that any feeling of inferiority stemming from segregation was all in the minds of its victims. So, in light of much of its history, the idea of disqualifying a former president* under the 14th amendment seems to me beyond the courage of our current political class.

But, at the beginning of August, an article for a future issue of the University of Pennsylvania Law Review became available in which two very conservative constitutional scholars, William Baude and Michael Stokes Paulsen, not merely validated the relevance of Section 3 to the current circumstances, but demanded in no uncertain terms that it be enforced, and damn the torpedoes otherwise.

Despite its long slumber, Section Three of the Fourteenth Amendment is alive and in force. It remains fully legally operative. It is constitutionally self-executing— that is, its command is automatically effective, directly enacted by the Constitution itself. And it is sweeping: It sweeps over earlier and inconsistent constitutional provisions. It sweeps in a broad range of conduct attacking the authority of the United States. And it sweeps in a broad category of former oath-swearing officeholders turned insurrectionists or aiders and comforters of insurrection or rebellion. It is enforceable by anybody whose duties provide occasion for judging legal eligibility for office. Indeed, each of these actors has a duty to faithfully apply Section Three. All possess legitimate constitutional interpretive authority to construe and apply this constitutional prohibition, many of them independently of other actors, including court.

No official should shrink from these duties. It would be wrong – indeed, arguably itself a breach of one’s constitutional oath of office—to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three. It is wrong to shrink on the pretext that some other officials may or should exercise their authority—as if one’s own constitutional obligations cease to exist if others fail to act. And it is wrong to shrink from observing, and enforcing, the Constitution’s commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, or resentment, or opposition, or retaliation. The Constitution is not optional and Section Three is not an optional part of the Constitution.


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Charles Pierce: The 14th Amendment Has Always Been Pretty Clear to Me (Original Post) Nevilledog Aug 2023 OP
I was ridiculed for suggesting this way back when. Hermit-The-Prog Aug 2023 #1
I like this. Very much. Hekate Aug 2023 #2
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