The 14th Amendment Does Not Apply To The Presidency.

There was no insurrection or rebellion, but even if there had been, the 14th Amendment does not apply to Trump.

Lately, the Democrat “scholarly law” lie machine has ramped up their amplification of Section 3 of the Fourteenth Amendment to suggest that Trump (and others) may be removed from the ballot. We have written about several aspects of this Subsection of the Constitution on many occasions, explaining arguments surrounding it for the hoaxes that they are. The latest iteration of the scheme is that it has been elevated to attack the highest office in the land.

Among the problems, however, is that while it did not apply during its last applications, it plainly cannot apply to the Presidency based on the subsection’s plain language. The fact that it cannot possibly apply to the office of the President has not stopped Democrat “thought leaders” one iota. Supposed experts from Yale law professor and constitutional law book writer Lawrence Tribe to supposed former “conservative” Republican jurist Judge Luttig have opined at length that Section 3 of the Fourteenth Amendment not only could apply to the office of the President, it obviously does. In addition to being all over social media lately, the two on August 31, 2023 authored a long piece in the The Atlantic detailing why Section 3 of the 14th Amendment renders Trump ineligible for the presidency.

As I will explain, this interpretation of the law not only would cause a first year law student to fail constitutional law, it should embarrass any legal American scholar. The fact that the obvious ridiculousness of the proposition no longer acts as a check and balance on Democrat political thought says much of what is wrong with our current political ecosystem. However, the point of this article is to explain why Section 3 has no application in the 2024 race for the Presidency. Analyzing the depths to which the Democrat Party no longer communicates rationally or abides by the plain language of the law will have to wait.

We must start, of course, with the language of the Amendment. Section 3 of the Fourteenth Amendment reads, in its entirety:

"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."

At the outset, it is clear that it does not apply to the office of the President because that office is not named in the opening sentence delineating those offices to which it applies. As one would expect of demagogues, neither Tribe nor Luttig, nor any other legal “scholar” making the argument bother to quote the Amendment itself. By failing to do so, they save themselves of having to grabble with the unassailable argument that no one in 1868 intended to disqualify any Civil War combatant from running and becoming President. One could imagine a myriad of reasons why this office (and the Supreme Court) were excluded, but the reasons are not relevant for our purposes here. In fact, the opening sentence plainly excludes the office of the President.

To be sure, those untrained in the laws or otherwise willing to make specious arguments could suggest that the clause “hold any office, civil or military, under the United States,” includes the Presidency. This proposition is frivolous when basic rationale would reveal that the drafters would not have specifically named “Senator” and “Representative in Congress,” but failed to list the most powerful post in the entire Federal government. If common sense were insufficient, and it is not, principles of statutory construction reveal that such “savings clauses” as they known, do not expand the lists coming before them but are limited by the prior named examples. Plainly Tribe and Luttig know this; explaining why they avoid the language altogether.

At this juncture, there is no point is attempting to determine if the remaining portion of the Amendment applies to the Presidency. Plainly it does not. However, in light of the fact that it could apply to “Senators” or “Representatives in Congress” running in 2024 (and beyond), it is worth analyzing to see if it has any relevance to those and other offices. Naturally, if the clause does not apply to offices everyone can agree it might apply, this is yet another argument why it would not apply to Trump running for the Presidency.

According to the plain language, to apply to the remaining offices, a person must have: (i) previously “taken an oath . . . to defend the Constitution,” and (ii) “shall have engaged in insurrection or rebellion against the same [the United States], or given aid or comfort to the enemies thereof.” Even Tribe and Luttig have not taken the extraordinary and frivolous step of suggesting that the disqualification clause applies to persons who had not held office before January 6, 2021 yet (again, a subject for a future article, but look for people like them to argue that the section explaining “given aid or comfort to the enemies thereof” may be used to exclude those they dislike from the ballot).

So, to date, the portion of the clause that requires that persons shall have taken an oath to defend the Constitution has been satisfied. The next question then is whether they engaged in: (i) insurrection or rebellion or (ii) “give[] aid or comfort to the enemies [of the United States].” Before examining that question, which every reader knows fraudulent commentators such as Tribe and Luttig claim they believe, it is valuable to examine two (2) other reasons why the clause might not apply even assuming one were considering an official covered by the clause and who admittedly had participated in an insurrection or given aid to someone who had because each would cause the disqualification clause not to apply.

The first such exemption comes from the language of the disqualification clause itself. The last sentence reads: “But Congress may by a vote of two-thirds of each House, remove such disability.” In fact, Congress has twice voted to remove the disability. In 1872, the disabilities were removed, by a blanket act, from all persons except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, military and naval service of the United States, heads of departments, and foreign ministers of the United States. Essentially, this limited the disability to members of Congress from March 4, 1859 through March 4, 1863 and all persons having actually served in the United States government.

Thereafter, in June 1898, Congress expanded those included to all persons impacted by the Amendment. The Act provided: “That the disability imposed by section 3 of the Fourteenth Amendment of the Constitution of the United States heretofore incurred is hereby removed.” Based on prior Congress’ actions, the disability has been removed twice and no longer applies.

Of course, for those unwilling to be bound by the rule of law, this hurdle is easily overcome by suggesting that the disqualification clause was not meant to apply solely to the Civil War, but to any such “insurrection” or “rebellion.” Accordingly, unless and until a Congress following any such insurrection or rebellion votes to remove the disability, it remains. The arguments against this construction are strong. Among them, a Supreme Court justice in interpreted Section 3 in 1871 and determined that it was limited to the Civil War. History also provides explosive evidence considering the fact that few, if any, were ever disqualified and no one has even tried, until recently, in over 100 years.

The second issue for those attempting to thwart democracy and keep candidates off of the ballot requires more legal training. As written, the Amendment has no actuating clause contained within it. As a result, it cannot apply until Congress writes legislation putting it in to place, pursuant to Section 5 of the Fourteenth Amendment. Section 5 provides: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” As is plain to anyone, Congress has never passed a law to enforce this provision. This should end debate to any reasonable person that respects the rule of law.

The fact that it is not even considered by those seeking to “disqualify” persons from office tells you just how far from the rule of law the party that supposedly supports “democracy” has strayed. Just about every other “legal” claim against Trump follows a similar pattern where words either are ignored or given tortured construction to avoid following the law or to prevent those wishing to take action from doing so.

To make the point more obvious, consider, for example, the Sixteenth Amendment providing that Congress shall have the power to collect taxes on the income of citizens. No taxes are collected until Congress drafts legislation making use of the power. Similarly, the disqualification power exists potentially, but only when and if Congress passes legislation explaining how it is to be applied. For example, an “insurrection shall be defined to be . . .” and “a person shall only be understood to have engaged in rebellion when found guilty in a Federal or State court.” To date, this has not occurred. As a result, the most realistic interpretation of the clause is that it is not applicable, even assuming January 6, 2021 was an “insurrection or rebellion.” Powerful evidence supporting this interpretation is that the disqualification clause has sat more or less dormant for one hundred and fifty years.

It is obvious to anyone that Section 3 of the Fourteenth Amendment has no application to the Presidency given the many argument discussed above. The totality of them renders the suggestion frivolous. Yet, the suggestion persists and, as this is written, is being pursued in various States to remove Trump from the 2024 ballot. You do not have a republic, and certainly not a Constitutional one, when ridiculous interpretations of the law not only are advanced, but then embraced by the institutions and thought leaders that supposedly exist solely to make sure the rule of law acts as a check on the passions of those seeking to use the law for improper gain.

In the coming months, we shall see how this plays out. Until then, we should all be horrified that our political environment permits obviously absurd partisan interpretations of the law to take root, germinate, and thereafter potentially wreak havoc on our political systems and, thus, our lives.