Does The 14th Amendment Section 3 Apply To Trump?

 In one of the amicus briefs before the Supreme Court, attorneys Vikram Amar and Akhil Amar makes a very compelling case that Section 3 does in fact apply to Donald J. Trump.  But he adds to the debate the historical background to the language in the Section.  I encourage you to read the Brief.  It's written in very clear and plain English and tells a remarkable story of why it was written to disqualify people like Donald J. Trump from the Presidency.

He tells us that many aspects of the Constitution and its Amendments are not merely theoretical , rather they are there in response to specific"the event, the evil, the mischief" and that Justices did best when they 

"Over the centuries, America’s best constitutional interpreters, both on and off the bench, have generally excelled when they first spotted and then heeded the key historical episode—the event, the evil, the mischief—that prompted a given patch of constitutional text.

For example, the Constitution forbids those under age thirty-five from the presidency. Why? Because of a concern about dynasties—young favorite sons of famous fathers, such as William Pitt the Younger, the British prime minister in 1787, who took office at age 24. The Constitution’s requirement that a president be “natural born” had nothing to do with C-section babies or Shakespeare’s Macbeth, and everything to do with the Founders’ anxieties about European noblemen who might seek political power in America. Article I’s rules for congressional membership were crafted with Englishman John Wilkes in mind, as were the later rules of the Fourth Amendment. The first sentence of the Fourteenth Amendment repudiated specific language in Dred Scott. The equality commands of Section One of the Fourteenth Amendment aimed especially at ending Black Codes in the Deep South. In affirming fundamental rights from state and local abridgment, Section One had centrally in mind—among other things—the urgent need to protect freedom of speech, freedom of worship, and the right to keep guns for personal protection."

Much of the brief discusses the historical events that cause Section 3 to be written the way it was:  John Floyd's actions, as President Buchanan's Secretary of War to move soldiers from and ammunition to Southern and his attempts to prevent the newly elected President Abraham Lincoln from being sworn in as President by Congress.

In the end, this momentous case is easier than it may at first seem, once one understands the historical events that triggered Section Three.

The insurrectionary betrayals perpetrated by Floyd and other top officials in the lame-duck Buchanan Administration went far beyond the abandonment of southern forts. They also involved, through both actions and inactions of Floyd and his allies, efforts to prevent President-elect Lincoln from lawfully assuming power at his inauguration.

Even before the inauguration, alarms rang out in Congress about the First Insurrection already underway. On February 1, 1861, Pennsylvania’s Representative John W. Killinger declared on the House floor that “preparations are actually threatened to take possession of this Capitol, and prevent the inauguration of the President elect. So far has the conspiracy progressed, that it . . . holds within its grasp the sworn officers of the Government. . . . Before Mr. Lincoln is inaugurated, this District will be the theater of commotion, and it may be, of violence.”11 Later that month, Killinger’s fellow Pennsylvanian James Hepburn Campbell echoed this point about oath-breaking insurrectionists: “[T]his treasonable conspiracy, to resist the inauguration by force of arms, . . . has drawn within its fatal vortex chiefs of the Cabinet.”12 And on February 18, 1861, Floyd’s successor in the War Department—Joseph Holt, himself true to his oath—confirmed that oath-breaking insurrectionists such as Floyd had indeed aimed to prevent the inauguration: (emphasis added)

But in one obvious and high-profile respect, Section Three as enacted went far beyond the early draft. It referred to all insurrections, past and future, and not merely to “the late insurrection” of the 1860s. It laid down a rule for the benefit of generations yet unborn—for us today, if only we are wise enough and faithful enough to follow its words as written and intended. (emphasis added)

Why is this important?  I imagine most readers have already figured it out.  Amar is showing the Justices that the language in Section 3 are based on actions that are almost identical to Trump's.  They leave no ethical way for the Justices to sidestep the fact that this Section was written to prevent people like Trump who had sworn and oath to protect the Constitution and then violated that oath by, Floyd's case and Trump's, trying to prevent the certification and inauguration of a duly elected President.  Not only in the 1860s, but "to all insurrections, past and future."

In addition to providing the story of Floyd, Amar also highlights the fact that Colorado, like every state, has the power to create its own election rules.  And Amar goes through, in Part Two, a list of twenty questions that have been raised by this case.  

In Part Two, we shall canvass a wide range of issues raised by this case and explain why many of them are easy. Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally. And so on.

Will five justices find this and other arguments persuasive?  We already know that Justice Thomas' wife strongly supported the insurrection and he has not recused himself from this case so far.  But what about the others?  

Leaving Trump off the ballot in Colorado well might make any difference.  Colorado has been more blue than red lately and Biden is likely to win there.  So those Justices who generally don't let the constitution get in their way to support the far right, could go along in this case.  But if Colorado doesn't have to put Trump on the ballot, how many other states - particularly purple states - copy them?  That will be the rub members of the Court's staunch right wingers.