“No person shall be a [federal or state official] who, having previously taken an oath… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against [the government],” reads Section Three of the Fourteenth Amendment. After applying a textualist interpretation and drawing on standard statutory interpretation guidelines, the plain meaning appears evident.

When it was ratified in 1868, the country was just getting over a bloody Civil War that had claimed 620,000 lives. Everyone knew back then how the Amendment applied to former Confederates. They were notable figures, such as General Robert E. Lee and former Confederate President Jefferson Davis, to mention a couple.

It comprised former sworn federal or state government officials as well as Confederate troops and other supporters of the Confederacy in various contexts. Politicians in the Union opposed the Confederates assuming control of what was clearly a precarious country. One hundred and fifty-six years later, history appears to be repeating itself.

Most people are aware of the participants in the January 6th uprising that attempted to rig the 2020 election. The public saw the assault on the capital firsthand as they watched it on television. Video footage of the rebellion was shot for hours upon hours. The violence directly affected personnel, police, senators, and members of Congress. Since that day, more than a thousand people have been accused, found guilty, or given prison sentences.

Numerous victims who experienced the events firsthand have spoken out against them and the people responsible, even bringing up the involvement of the previous president Trump. Numerous criminal defendants have publicly stated that they were persuaded to participate by the former President. During the 2020 presidential debates, the former President requested that the “Proud Boys,” a well-known far-right, neo-fascist militant group that encourages and participates in political violence, “stand back and stand by.”

Two of the criminal cases in which the former President is a defendant are connected to the momentous events of January 6. A week after the attack, erstwhile political allies accused the former President of “responsibility” for the uprising and claimed that his “rhetoric crossed a line.” Shortly after the impeachment trial of the former President concluded, Congressional leadership publicly declared, “President Trump’s actions prior to the riot were a disgraceful, disgraceful dereliction of duty…” Without a doubt, President Trump bears both practical and moral responsibility for inciting today’s actions.

This not only calls into question the former President’s moral fiber, suitability for office, and readiness to protect the Constitution, but it also lends support to the criminal allegations brought against him by grand juries. According to current allegations, the former President is a felon who, among other things, tried to void American citizens’ constitutionally guaranteed right to vote. He also appears more like a criminal than a worthy contender for the presidency. The arguments against including the former president on the ballot in 2024 are not just strong but also appear self-evident.

The legal world is, shockingly, divided over whether this disqualifies the former president from appearing on any primary vote or the ballot for the 2024 presidential election, even for a little period of time. The argument put forth by those who oppose applying Section Three to the former President is technical and offers little to no justification for why a person who has been accused of violating our citizens’ constitutional rights should hold any public position, much less the presidency.

The main points of contention are whether Section Three can be enforced without Congressional enactment, whether it applies to the President’s office, whether an insurrection took place, what behavior counts as participating in an insurrection, and whether or not due process is necessary under Section Three. The amicus brief that Professor Mark Graber filed with the Colorado Supreme Court sheds light on these issues by outlining the legal and historical rationale for applying Section Three to the former President and by confronting academics who attempt to argue against its application.

These topics covered by the Graber amicus brief are discussed in the four opinions of the Colorado Supreme Court decision and the Maine Secretary of State’s judgment. Historians without legal backgrounds have also submitted an amicus brief to help the Court comprehend the historical background of the Amendment and justify its application to the previous President.

However, during the recent oral arguments in Trump v. Anderson, the Supreme Court appeared to be obsessed on the notion that the other forty-nine states would be bound by Colorado’s decision to remove the former president from the ballot. This seemed to be off the mark because the behavior described above was that of the prior president.

Giving regard to the intent and clear wording of the Amendment appeared to be less important to the Court than finding an excuse not to fulfill its duty to interpret and administer the law.

In addition, there are strong arguments that the former president shouldn’t be permitted to appear on any state’s ballot in 2024, in accordance with the plain language of Section Three, in addition to the factual and historical records. These arguments have received little to no attention during the Court’s oral argument and debate.

First, our democracy is in jeopardy, just like it was in the political climate of 1868. The former President’s “life and limb” are not in jeopardy.

Until his criminal cases are tried, whatever that may be, nothing is at risk. The question at hand is whether the Court will permit an accused felon who may be found guilty to hold the office of President of the United States, thereby enabling him to challenge the rule of law. The argument that the Amendment only applies to the individuals and events of the 1860s and excludes the President’s office is unfounded. The amendment would state as much if it did.

Second, the former president ought to have his day in court to demonstrate his innocence and refute any claims that his actions on January 6th were criminally motivated. Nevertheless, in light of Section Three’s self-executing language,

Third, the legal system operates too slowly to provide a criminal defendant with due process and to reach a decision before the election, which in this case would be advantageous to the nation. At that rate, the nation may suffer if a former president who has been charged with a crime but has not yet been found guilty were to retake the presidency. The Supreme Court ought to behave as an equity court given its status as such.

The country is shielded by Section Three’s wording from those who would attack the government’s continued existence—a threat that the “Second Founders” intended to avert. If it is true that “no person is above the law,” the Colorado Supreme Court should be upheld by the Supreme Court, and the former President should be disqualified from all elections.

This is not Colorado’s fault; rather, it is the past President’s actions. A federal officeholder may be able to avoid both federal and state prosecution if the Court renders a different decision. This hardly seems like the kind of provision that the “Framers of the Second Founding” intended to safeguard the nation from those who engage in or support violent uprisings against the government. The justices of the Supreme Court need to get on with their jobs now that the state courts have completed theirs.

Jim Saranteas is an active lawyer with more than 20 years of expertise in civil litigation, both at the trial and appellate levels. Among the courts he has successfully argued and made decisions for are the Illinois Supreme Court. He was selected for the prestigious St. Bellarmine Award by the Board of Governors of Loyola University Chicago School of Law in 2012 in honor of his outstanding contributions to the legal community. He coached appellate argument moot court students at Loyola Law in addition to serving as an adjunct professor. This year, Saranteas is serving as a volunteer appellate advocacy coach for the Duke Law Moot Court Board. Saranteas graduated with a B.A. in Economics & Business Administration from Knox College and a J.D. from the Loyola University Chicago School of Law.

#american #nationalsecurity #supremecourt #trump

Ghazala Siddique