In the continuing malarkey surrounding the former President Donald Trump, yet again we find that every limit of the US Constitution is being tested every which way. In the continuing testing of provisions and clauses left right and centre, once again we find ourselves looking under the hood of the 14th Amendment to the United States.
After having argued that the The President Of The United States despite taking an oath of office and despite the US Constitution naming the office as an office, and a dearth of case law which has agreed that the The President Of The United States is in fact the chief executive officer (See Horse 3281 - Yes, The President Is An Officer) the cult of personality which defends Trump as though he were a hemi-semi-demi-god has now moved on to asserting things that aren't even in the constitution.
The most commonly repeated argument which has been thrown up of late, is that as Donald Trump has not yet been convicted of insurrection, that the provisions of the 14th Amendment do not apply to him. (Or even deny that they was an insurrection, despite and in spite of the 814 page House Committee Report into the January 6th Insurrection.)
Since we're asking why the 14th Amendment to the United States Constitution should or should not apply to Trump, then it is handy to be reminded of what it says. The text of the relevant section of the 14th Amendment (14A S3) is as follows:
https://constitution.congress.gov/constitution/amendment-14/
Section 3
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.
- 14th Amendment to the US Constitution, 28th July 1868
There are two points of order that the fanatics of Donald Trump want to impose into this text which are simply not there; which I shall deal with in turn.
Firstly, that he needs to have been found guilty of insurrection. On the face of it, it would seem as though this is a reasonable assertion, until you actually read the words of the text. There are no such provisions in the words of 14A S3 which say that anyone needs to be found guilty of anything. Once again we find a difference between what people want the text to say when it suits them, and what it actually says if they do not like it.
This begs the question of why would there be no such provision, detailing someone to have been found guilty of insurrection in 14A S3? Surely it stands to reason that the operation of law in order to be just, would need to explicitly spell this out but it does not. The reason is actually lurking within that very last piece of citation here - namely, the date.
The date of 28th July 1868 is highly important here. Earlier in the decade, the United States suffered a bout of unpleasantness resulting from 13 states that had signed on to form their own nation based upon the premise of keeping and retaining slavery. The truth in point was that the United States had started as a result of people wanting to keep and retain slavery following the British High Court ruling in Somerset v Stewart (1772), which ruled that slavery was an abomination in Britain and the 13 colonies were very unhappy about this. The British Government them imposed a series of punitive taxation measures when it became increasingly obvious that the 13 colonies would not give up keeping slaves. The Revolutionary War solved the first problem of throwing off British Rule; which meant that Knight v Wedderburn (1777) would never fall into the corpus of American common law, and the subsequent acts of Parliament such as the Slave Trade Act (1803) and the Abolition Of Slavery Act (1833) would never ever apply. This meant that the second problem of people wanting to keep and retain slavery was never resolved, and even the Civil War didn't solve the issue. It was in fact the 14th Amendment which includes other sections to do with slavery, servitude which put an end to this issue.
However, reconstructing the United States meant that suddenly there were all these people who had waged in insurrection and rebellion against the United States, who were now once again United States' citizens who would have been eligible for all kinds of government offices. This would be both ironic and extremely dangerous when you consider that they had literally fought a war against the country which they were now a part of.
14A S3 openly and blankly, disqualifies anyone from holding any office, civil or military, under the United States, or under any State, if they had previously taken an oath to support the Constitution of the United States. There are a lot of hinge clauses here but 14A S3 appears to not disqualify people who had fought in the Civil War against the United States, if they were just rank and file soldiers. 14A S3 acutely targets people who had been in government positions previously who had engaged in insurrection or rebellion, from holding office again. The unsaid question here is why would you want to run as a Senator or Representative in Congress, or be an or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, if you had fought against the United States? If you hate it that much what possible cause would you have to run again? The only reasonable assumption is that you want to get back inside to break the United States again.
From a purely administrative logistical point of view, trying what could be potentially thousands upon thousands of people for insurrection or rebellion, or given aid or comfort to the enemies thereof, in the wake of the Civil War, is a hideously expensive nightmare. Actually, if you wanted to hurt the United States from an economic perspective and 14A S3 contained the express provision that someone needed to be found guilty, then all you would need to do is mount case after case, applying for those positions in government. They would very much be frivolous cases but the law would be obliged to try them.
This is almost an aside here but I think that Donald Trump with 91 charges against him, actually does like running frivolous cases in court because they are in effect cheaper than paying for advertising. In his eyes, controversy is the game and it doesn't matter if the people think that you are a liar, a cheat, a devil, or a knave, or even if they hate you, if they say your name then you already have publicity. Just as in 2015, there didn't need to be any public education advertising program because everyone already knew who he was.
The 14th Amendment makes no express provision that someone needed to be found guilty of insurrection or rebellion to be disqualified, largely because it does not need to; as such, the actual words of the text make no such demand or provision at all. Since the United States and the various states make the rules, regulations, and laws, about who can be employed and the terms and conditions by which they are employed, then there doesn't need to be any express demand or provision at all. Has a person engaged in insurrection or rebellion against the United States or the States, or given aid or comfort to the enemies thereof? This is a simple question which the courts themselves can answer whether or not a given person is present or not. 14A S3 allows a court to issue writ on this subject; which is precisely what has happened in the various States who have made rulings which remove Donald Trump from the ballot.
This brings me to the Second point of order; which is that the fanatics of Donald Trump want to impose some kind of vague reading of Due Process despite those words also being absent in 14A S3. Again this would seem as though this is a reasonable assertion, until you actually read the words of the text. There are no such provisions in the words of 14A S3 which say that anyone needs to be found guilty of anything. Once again we find a difference between what people want the text to say when it suits them, and what it actually says if they do not like it.
It should be self-evident that if a State Supreme Court, which is charged with the administration of th law within that state, and the states themselves are charged with the terms and conditions for running their own elections for Senators or Representatives in Congress, or elector of Presidents and Vice-Presidents et cetera, that if a State Supreme Court has made a ruling then that State Supreme Court has in fact followed Due Process. How can it not? A court of law, ruling on a point of law, makes a direction based upon the rule of law. What's not to understand here? You can not simply demand some process of "Due Process" on your terms, just because you do not like the existing process and rule of law.
Aside:
I have a beef with the entire discussion about the intent of the law, or what the founding fathers wanted, or what the spirit of the law is. The law at it core only exists in two places: namely the text of the words currently in force, and the opinions of the people who are ultimately charged with deciding what is equitable, what the words of the law mean, and how they apply to the case immediately before them. This is a thing which comes up time and time again and always you have to ask what does the text of the law say? If there is a difference between what people want the text to say when it suits them, and what it actually says if they do not like it, then the way to change that is through legislation.
In fact the law itself never belongs to the either the legislatures, or the courts, but that non-corporeal person called The Crown, The People, The State, or other some such. I couldn't give a peppercorn of care what the founding fathers wanted. They're dead. If the text of the words of the law remain, then that is what remains as far as the law is concerned.
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