This is the second and last of two articles on how to interpret the Constitution, and the implications of these interpretations for the case for keeping Donald Trump off the 2024 presidential ballot. Both the originalist and the modernist interpretations (in my opinion) reach the same conclusion. He is barred from office by the Fourteenth Amendment.
I’ve ruled out using the originalist interpretation. But if we accept the modernist interpretation as valid (and the originalist interpretation isn’t, or is at most secondary), then what is the modernist interpretation of the Fourteenth Amendment?
Here’s what that Amendment says:
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.
[Fourteenth Amendment, Section 3]
What is our agreement as the people of the United States with our government regarding when someone is qualified to be President of the United States? This is how we can know what this text means in today’s world.
I think the clear opinion of citizens of this country is our belief in democracy. This is supported by the fact that for hundreds of years the citizens of this country have turned out at elections to determine which candidates and policies will govern, at all levels (local, state, and federal) of our government.
This, despite wars that temporarily halted the process. The nascent U.S. was occupied by Britain during the War of 1812, including British troops controlling Washington, D.C. The American Civil War disrupted the election of federal officials for about four years during the war and for some time after in the South. Despite this, and horrific terrorist attacks and the expansion of the country from 13 states to 50, elections have been restored whenever possible.
More recently, according to Dave Leip’s Atlas of U.S. Presidential Elections, 158,590,894 people voted for President in 2020. According to NBC News at the time, with about 99% of the expected vote in, 158,431,190 people had voted for President. That means roughly 158.5 million people voted for President in 2020.
I argue that these facts demonstrate the commitment of the American people to democracy.
We know it isn’t perfect. We know that our governing institutions don’t perfectly reflect the will of the people. But we put up with the flaws in service of the principle. And we move (slowly, deliberately) toward a more accurate reflection of the will of the people. Because we still believe in the concept, popular originally and still popular today, of popular sovereignty. In the U.S., the people are sovereign. Sovereignty passed from the King of England to the people of the United States during the Treaty of Paris that ended the American War of Independence.
According to the American people, we are in charge.
Not a king. Not a dictator. The President serves us, not the other way round.
Given this fact, we can only expect that the President is bound by the terms of the Fourteenth Amendment. We therefore conclude:
- The President holds an office under the United States and is an officer of the United States.
- That the presidential oath is an oath to support the Constitution of the United States.
- That if the President engages in insurrection or rebellion against the United States, that person may not again hold the office of the presidency of the United States.
It is impossible to square the idea that someone could violate this provision and the United States could continue as a democracy. This would violate the principle of popular sovereignty.
So, does Donald Trump fit the criteria of the Fourteenth Amendment of someone who engaged in insurrection or rebellion, or gave aid or comfort to our enemies? In the language of the amendment, is he someone who has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”?
A court of law has already found he fits this criteria. In November 2023, Judge Sarah B. Wallace ruled he engaged in insurrection. The court found that:
“insurrection” at the time of ratification of the Fourteenth Amendment was understood to refer to any public use of force or threat of force by a group of people to hinder or prevent the execution of law.
(Anderson v. Griswold)
In today’s terms, an insurrection is a violent uprising against the government. According to Wiktionary, an insurrection is:
The action of part or all of a national population violently rising up against the government or other authority; (countable) an instance of this; a revolt, an uprising; specifically, one that is at an initial stage or limited in nature.
[Wiktionary “Insurrection”]
The essential elements of the term are that it is violent and it is against the government. Generally, an insurrection has the intent of overthrowing the government, or at least getting the government to bend to the will of the insurrectionists. As a violent action, it is directly opposed to democracy.
In the case of the attack on the Capitol on 6 January 2021, we have a violent mob attempting to stop the official vote count. This fits the definition perfectly, because it is a violent attempt to overthrow the government.
So, did Donald Trump engaged in that insurrection or give aid or comfort to our enemies?
Yes, the crowd that attacked the Capitol was carrying out his wishes, which he had expressed to them repeatedly since the election in 2020 and they believed he wanted.
The first proof of this is that he lied to them about the outcome of the election. He falsely proclaimed that he had won. If he hadn’t lied to them about this, then they wouldn’t have believed they were doing the right thing by attacking Congress.
The second proof is that he didn’t respond to the violence by telling them to stop. If they were not doing his bidding, then when he learned they were violently attacking the Capitol, he would have sent them the message that this wasn’t what he intended.
The third proof is that he had an obligation to protect the Capitol, both the property and all federal employees, including members of Congress. He took an oath to “faithfully execute the Office of President of the United States”. That includes taking care the laws are faithfully executed. So, he had a presidential responsibility to protect the people and property of the Capitol, and failed to act on that responsibility. This shows that he was part of the insurrection.
In addition, he gave aid and comfort to the people who were attacking the Capitol. In doing so, he aided (by not sending a force to stop them) the insurrectionists in the building, and he gave them comfort (by sending a message to them that he loved them).
Even if he were not guilty of insurrection on its own terms, giving aid and comfort to the insurrectionists disqualifies him from office.
What we see in all this is Donald Trump’s opposition to democracy. He has shown by his words and action he violently opposes it.
But the American people support democracy, and allowing someone who has proven to be its opponent into office is against the interests of the American people. It is contrary to the provisions of the Fourteenth Amendment because he has shown he opposes the rule of the American people, and is therefore disqualified.
In conclusion, we don’t need to go back to the meaning of the original authors of the Fourteenth Amendment to understand it or apply it in 2024. We only need to look at what the American people of today, of now, agree to in our contract with the government. We agree to be governed by democracy, with the government deriving its just powers from the consent of the governed, as eloquently put in the Declaration of Independence.
We don’t consent to be governed by an insurrectionist, an opponent of democracy.
Here is a link to the introduction to the series.
Here is a link to the first article in the series.