Fourteenth Amendment Follies

Democrats and progressives cut a road through the law to get after the Devil

The Ogre Trump has driven the comrades mad…

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The supreme law of our country, the Constitution of the United States of America, defines only one crime, treason, in Article III, Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Framers of the Constitution included this very limited definition of treason to prevent the charge from being used, as it had been so often in times past, as a political weapon.

A famous English case was that of Sir Thomas More, one-time Chancellor of England and Catholic saint, who was convicted of treason and executed in July 1535. More was indicted on four counts of treasonous behavior: (1) that he opposed King Henry VIII’s marriage to Anne Boleyn by not positively supporting it; (2) that he refused to swear the oath of the Act of Supremacy, recognizing the King as the Supreme Head of the Church in England; (3) that while imprisoned he wrote letters of a treasonous character; (4) that in a conversation with Richard Ryche, the Solicitor General, he said that Parliament had not the power to enact the Act of Supremacy.

More based his defense on the fact that he had never spoken out against the marriage or the Act of Supremacy (implying that Ryche had perjured himself) and that in law, his silence must be construed as consent. But this cut no ice with the court. More was a well-known and much-admired public figure; his silence was intensely irritating and embarrassing to the King. It was well understood that Henry desired his former chancellor’s conviction and condemnation. And so it happened: Sir Thomas More was convicted and executed. This was the precisely the kind of judicial persecution that the Framers sought to exclude from American politics by narrowly defining the crime of treason and the specifying the evidence required to support a charge of treason.

Due process of law is the foundation of any system of justice worthy of the title, and due process is founded on a body of law that defines offences with a high degree of specificity. In general, the federal and state criminal codes do this by defining the elements of the crime. There are exceptions, however. Federal law criminalizing insurrection and treason broadly defines those offences but provides no specifics. According to 18 U.S. CODE § 2383:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

And that’s it. A charge of insurrection, therefore, places a heavy burden on the shoulders of the prosecution. What, for instance, constitutes incitement? At what point do First Amendment protections of free speech and assembly rights cease to apply? These and other thorny questions explain why no one involved in the January 6, 2021, invasion of the United States Capitol has been charged with insurrection or rebellion. It is by its nature an extremely difficult crime to prove—this because the elements of the crime are not clearly set forth.

As it happens, insurrection is also mentioned in the Fourteenth Amendment to the Constitution, which states in Section 3:

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.

This of course was aimed at former civilian officials and military officers of the defunct Confederate States of America, who either figuratively or literally had taken up arms against the United States. Note, however, that it applied only to individuals who’d previously taken an oath to the United States, for instance Robert E. Lee of Virginia, a West Point graduate who’d risen to the rank of colonel in the US Army before exchanging blue for gray. Four years of bloody conflict had left no doubt that he and men like him had engaged in insurrection.

In its lawfare campaign against former president Donald Trump, Democrats and progressives have seized upon Section 3, claiming that it empowers the several states to bar the former president from appearing on the 2024 ballot because he led an insurrection against the United States on January 6, 2021. Supposedly, by relying in “context” and ‘fluidity of language” state courts and officials can determine, without all the fuss and bother of a trial, that in some sense Trump is indeed guilty of insurrection. Not only is this idea legally dubious, but it constitutes a grievous offense against “our democracy”—the very thing that the lawfare crowd purports to be defending.

Insurrection is a crime defined in federal law, and since not one single solitary person connected to January 6 has been so charged, no insurrection can be said to have taken place. Nevertheless, it is argued that a state court or a state official can exclude him from the ballot as an insurrectionist. It’s an extraordinary argument, and those making it would do well to scroll up to Section 1 of the Fourteenth Amendment, which includes the following:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The privileges and immunities of United States citizens include the privilege of running for political office, providing only that one meets the qualifications stipulated in federal and state law. You can argue until you’re blue in the face that Trump’s a bad man who ought not to be president, and I might agree with you, but according to the Constitution he meets the qualifications for that office. Nor can he be denied due process of law or the equal protection of the law, for instance by excluding him from the ballot for a crime he never committed.

And viewed as a political matter, this campaign of exclusion is doubly objectionable. It’s being waged by political partisans to derail the candidacy of a political rival. There’s scarcely any pretense that high-minded motives inspire those involved. Very obviously their objective is to get Trump—whatever that may take. The excuse, of course, is that “our democracy” is in danger if Trump wins the presidency back. A more likely motive, however, is the uneasy suspicion that the incumbent president, increasingly frail and befuddled, patently incapable of doing the job, could actually lose to Trump. In an election that asks voters to choose the least worst candidate, there’s no reason to be confident that they’d pick Joe Biden over Donald Trump.

The Fourteenth Amendment lawfare campaign shows that for all their blather about “our democracy,” Democrats and progressives have zero faith in the American people. As far as they’re concerned, democracy is only working properly when it advances progressivism; any other outcome is a descent into fascism. So if it seems possible that voters might choose Trump over Biden, they must be deprived of the opportunity to do so: effectively disenfranchised by underhanded lawfare maneuvering. It’s a sorry spectacle, not least because it reveals with crystal clarity that all too many Democrats and progressives don’t believe a single thing they say about democratic accountability and institutional norms. They’ll violate any norm, they’ll trample over any law, to stop Trump—and the consequences be damned. As Robert Bolt has Sir Thomas More say in his celebrated play, A Man For All Seasons:

Cut a road through the law to get after the Devil? And when the last law was down, and the Devil turned on you, where would you hide, Roper, the laws all being flat? This country is planted with laws from coast to coast, Man's laws, not God's, and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the wind that would blow then?

Or to put it more prosaically: What goes around comes around, comrades.