Using the 14th Amendment, Section 3 to rid us of TFG (or Opening Up a Can O’ Legal Worms)
Might not be such a good idea to use the 14th in the long run to keep TFG off of election ballots and here’s why.
If the 14th is used to keep TFG off of state ballots, what’s to keep the 14th from being abused in the future by bad actors?
Why we should be wary: A legal paper titled The Sweep and Force of Section Three written by two members of The Federalist Society undergirds the use of the 14th Section 3 as a means to keep people off of the ballot and not necessarily only for insurrections.
This paper will undoubtedly be seen by the Supremes because that’s where the current case in Colorado is likely heading. We’ve learned by experience with Dodds and in the makeup of the current SC that The Federalist Society is patient and plays the long game.
Opening up a possible can o’ worms, using the 14th amendment to rid us of Chump on the national stage, for most folk, would be exactly what the country needs. Right here and right now.
But we should be clear-eyed on the possibility that it could bite us on the ass later. What if a RW organization like Leonard Leo’s Federalist Society helps others use the 14th as a tool to remove their political enemies?
There is the very real possibility that the 14th could be used as a tool for political revenge.
There are those on the left who are advising caution in using the 14th for the clear and present danger of TFG. Here are the first and final paragraphs from Banning Trump, an op-ed by Eric Posner who is a contributor with Project Syndicate.
“While historians view the US Constitution's insurrection clause as firmly rooted in the conditions of the post-Civil War era, legal scholars and lawsuits seeking to remove Donald Trump from the ballot in 2024 choose to ignore this context. In their attempt to protect American democracy, they may end up undermining it.”
“It is tempting to summon a deus ex machina to rid the country of a man who has done more to undermine American democracy than any person since Jefferson Davis. But would it revive democracy, or weaken it further, to allow the 2024 election to be decided by the electorate of 1868?”
In a wildly imaginative look at the past, suppose this: What if the abolitionist John Brown wasn’t executed after the insurrection of Harpers Ferry but instead ends up in prison? Imagine a few years down the road; he’s pardoned, sprung from jail, gets a huge progressive political movement started, then decides he wants to run for president. But Alabama says his attempted insurrection violated the constitution and he’s ineligible for the ballot in their state. As president, Brown could’ve been successful at holding and keeping Reconstruction in place. Just think how different our history would’ve been in that scenario.
As Twain once said, “History doesn’t repeat itself, but it often rhymes”.
The word “weaponized” is overused. But the 14th Section 3 is constitutionally overly broad, and for that reason, more easily made into a tool, a weapon to cudgel one’s political enemies.
Whenever the Federalist Society is at work, especially under the radar like they do, we need to be watching our backs for a knife.
The links below should be non-paywall.
Federalist Society legal paper title:
The Sweep and Force of Section Three- William Baude and Michael Stokes Paulsen
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
Project Syndicate Posner op-ed title:
Banning Trump- Eric Posner
https://www.project-syndicate.org/commentary/trump-disqualification-14th-amendment-section-three-is-there-legal-merit-by-eric-posner-2023-09
Project Syndicate Wiki
https://www.project-syndicate.org/commentary/trump-disqualification-14th-amendment-section-three-is-there-legal-merit-by-eric-posner-2023-09