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Is the 14th Amendment, Sec. 3 anti-democratic? [1]
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Date: 2023-12-29
"A republic, if you can keep it," was Benjamin Franklin’s reply when asked what form of government the Constitutional Convention had written for the United States in 1787. Merriam-Webster says that a republic is “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law” (emphasis added).
In the USA, people elect representatives, who make laws, which are interpreted by judges, and the executive branch enforces the law. The Supreme Court of Colorado has said that the 14th Amendment excludes Donald Trump from eligibility to be president.
“The court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.”
The Supreme Court of the US will decide the question for all of us. Many in the pundit class have said that regardless of the clear text of Article 3 of the 14th, it should be disregarded and the people should just vote, for example:
The Supreme Court Should Overturn the Colorado Ruling Unanimously
The Anti-Democratic Quest to Save Democracy From Trump
We will get to that question. But, first of all, do Trump’s actions meet the requirements for disqualification under Section 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.”
Very briefly, yes!
As Egberto Willies says, the textualist justices cannot escape the original intent of the writers of 14.3. The President is an officer of the United States. The Colorado SC agreed.
The President is an officer of the United States. The Colorado SC agreed. Was Jan 6 an insurrection? Ryan McMaken, Editor of Mises Wire and The Austrian says: “Well, my view is that it is a riot in the sense that it’s difficult to attribute any particular goal to the people who were actually involved at the Capitol.” In fact, the January 6th invasion and attempted disruption of the certification of the election was not just an isolated incident. Jan 6 also includes the planning that went into it, which constitutes an insurrection. The Colorado SC agreed.
Now to return to the original question. Is the Colorado decision anti-democratic? Should SCOTUS ignore the 14th Amendment and “let the people decide”? Let’s think that through.
Q: How did the 14th come about? Did a King dictate it? Did it just appear on tablets brought down from a mountain?
A: No, it was by a 2/3 vote of both houses of Congress, followed by a vote by ¾ of the state legislatures. Sounds like the will of the people to me. BTW, if we ignore the 14th, what other Amendments could be thrown out?
Q: Well, should voters in 2024 be held to a decision that was made back in 1868?
A: If we don’t like the decision that was made 155 years ago, we could amend it with a new law. And while we’re at, why don’t we get rid of some other parts of the Constitution, like the Electoral College that was created 236 years ago. Keep in mind that if we had “let the people decide” directly, Trump would never have been elected.
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