Columnists: Applying Section 3 of the 14th Amendment to Trump is necessary

“… when a person criticizes Section 3 as undemocratic or undermining democracy, your answer should be simple: Yes, it is undemocratic, exactly as it was intended to be. The amendments’ authors were worried that voters would send former Confederates right back into public office. If they had believed that the American electorate was wise enough not to vote for insurrectionists, they never would have drafted Section 3.

Moreover, it’s important to note that none of the legal analysis I’ve offered above relies on any sort of progressive or liberal constitutional analysis. It’s all text and history, the essence of originalism….

So no, it would not be a stretch for a conservative Supreme Court to apply Section 3 to Trump.”

“In 2020, Trump faced the voters, participated in a free and fair election, and refused to accept the outcome. He triggered arguably the greatest threat to American democracy since the Civil War. He sent a single message, loudly and clearly, to his opponents: He will not admit defeat. Victory is the only election outcome he recognizes.

Given that history, why does anyone believe it will be safer to keep him on the ballot?”

“We already know what he does when he loses. For him, counting the votes is only the beginning of the battle. If he loses, he’ll challenge the results, conspire to overturn the election and incite political violence.

And if he wins? Then you have an insurrectionist in command of the most powerful military in the world, who is hellbent on seeking vengeance on his political enemies. Does anything at all sound stabilizing about that?

There is no easy path, and the court should not overthink its task. It’s time to apply the plain language of the Constitution and disqualify Trump.”

“The language of the 14th Amendment is clear and it is wise. The law and history both teach us the same lesson: Donald Trump is more dangerous in the Oval Office than he is at Mar-a-Lago, and the safest course for the Constitution is to keep an insurrectionist out of the White House.”

Read his columns here, here and here.

“We also know that the framers of the 14th Amendment did not aim or intend to exclude the president of the United States from its terms….

Under a plain reading of Section 3 — and given the evidence uncovered by the Jan. 6 committee — Trump cannot stand for the presidency of the United States or any other federal office, for that matter.”

“Trump is not simply a candidate who does not believe in the norms, values and institutions we call American democracy — although that is troubling enough. Trump is all that and a former president who used the power of his office to try to overturn constitutional government in the United States.”

“What unites Trump with the former secessionists under the disqualification clause is that like them, he refused to listen to the voice of the voting public. He rejected the bedrock principle of democratic life, the peaceful transfer of power.”

“Disqualification, goes the argument, would bring American democracy to the breaking point.

But these objections rest on a poor foundation. They treat Trump as an ordinary candidate and Jan. 6 as a variation on ordinary politics. But as the House select committee established, Jan. 6 and the events leading up to it were nothing of the sort.”

“There is no rule that says democracies must give endless and unlimited grace to those who used the public trust to conspire, for all the world to see, against them.”

Read his column here.

“Yes, Trump’s supporters will feel alienated if he is excluded from the ballot. On the other hand, millions of others and I will feel jolly alienated if the Court tells us that politics require he be allowed to run again and win. It’s far from clear to me why one alienation is more privileged than the other.”

“To create special rules for Donald Trump would be to perfect the assault he has mounted on American law.”

“The authors of Section Three were deadly serious in their determination to keep the government out of the hands of traitors and rebels…. They weren’t writing talking points or guidelines; they were writing law.”

Read his column here.

“Hiding beneath the surface of many of the arguments against disqualifying Trump is the sneaky suggestion that January 6 wasn’t all that bad—unpleasant, perhaps, but nothing worthy of being called an insurrection. This ignores both the horror of that day and the risk posed by a presidential candidate who continues to insist that he won in 2020, refuses to say that he will accept the results of the 2024 election, and routinely eggs his supporters on to further violence.

The Fourteenth Amendment establishes that such conduct is unacceptable for a potential president, and it is in the interests of American democracy—unless you define democracy as mob rule—to reaffirm that determination. If the Court balks at this, then Trump will once again take away the message that he can act with impunity.”

“The Fourteenth Amendment was a radical document, intended to remake American society. Rejecting its dictates here downplays not only the catastrophe and lasting damage of what happened on January 6, but also the force of what Congress did when it passed Section 3 in 1866—establishing clearly that such events cannot be acceptable in a democracy.”

Read her column here.

“… in reality, the threat of violence will be the same (or higher) with Trump on the ballot than with him off it. We know this because Trump was already on the ballot in 2020, when voters showed him the “correct” exit from the American political system by a seven million-vote margin. This did not forestall violence. Instead, Trump incited it.”

“When it comes to preventing violence from Trump supporters, “leave it to the voters” is quite literally the only approach that has a proven track record of failure, which is precisely why the Fourteenth Amendment is even available as a remedy here.”

“If the courts are simply not up to the task of determining whether his behavior on and leading up to January 6 triggers the Constitution’s insurrection ban, can they be trusted to determine if those same actions carry criminal liability?”

“The only way forward is to fight [reactionaries] using every tool at our disposal, which includes holding them accountable when they break the law.”

“Making the Constitution and the rule of law contingent on not upsetting a right-wing mob is not saving democracy. It is ceding democracy entirely.”

Read his column here.

“Democracy is not simply voting; it includes limits on how and under what circumstances political power can be disputed and wielded so that democracy itself can survive from generation to generation…. Democracies cannot function without durable rules that set guidelines for contesting political power. That is the entire purpose of a written constitution, to place certain rights and principles outside the back-and-forth of normal political competition.”

“The prospect of allowing Trump on the ballot is not itself so dire, but doing so demands disregarding the rule of law on Trump’s behalf simply because of who he is.”

“If the fear of violence from one political faction is sufficient justification for disregarding the rule of law, then the rule of law cannot be said to exist.”

“But those making the argument against disqualification should understand the breadth of the political argument they are making, which is that a political faction capable of credibly leveraging the threat of violence will be allowed to randomly and arbitrarily decide what the law is. That is not democracy; that is domination.”

“The arguments in favor of obeying the Trump Rules are much broader than they appear: Their proponents are not simply arguing against Trump’s disqualification. They are arguing that neither the Constitution nor the law should apply to a figure popular enough to disregard them…. Insurrection? When you are a star, they let you do it.”

Read his columns here and here.

“However troubling its political implications might be, the Colorado Supreme Court’s ruling… demonstrates that the judicial system is still functioning in the United States. The reason is straightforward: The court applied the plain language of the Constitution, doing its job with clarity and fidelity to the rule of law.”

“If the purportedly conservative members of the U.S. Supreme Court are intellectually honest about their jurisprudential approach to the law, this case should not be hard.”

Read her column here.

“So, the profoundly serious complaint remains: that to apply 14:3 to disqualify Trump would be wrongly antidemocratic. This is a policy or political issue, not a legal question.

The antidemocratic lament goes to the essence of our system of constitutional government as a democratic republic. The Constitution is replete with provisions that constrain democratic majoritarianism. We may not always like them, but they are there.”

“I do not make light of applying 14:3 to disqualify a leading presidential candidate. It will cause an uproar and a crisis. But it is a crisis which the Constitution compels and which the country can survive.”

Read his column here.