Making a Picture

The Left's Fourteenth Amendment fantasies go boom

Sorry comrades, not an insurrection

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Back in February, I wrote about the defective thinking and bad faith behind the Democrat/progressive attempt to weaponize the Fourteenth Amendment against Donald Trump. And I was pleased to note that in its unanimous ruling on the matter, the United States Supreme Court sent the Colorado Attorney General away with a flea in her ear. The Court declared in no uncertain terms that state officials are not empowered by Section 3 of the Fourteenth Amendment to disqualify candidates for federal office and remove them from the ballot.

In my previous article on the subject (see below), I cited the Framers’ inclusion in the US Constitution of the crime of treason, noting that it’s the only crime mentioned in our governing charter and explaining why that is. The men who wrote the Constitution knew their history, knew that the charge of treason had often been used to silence or eliminate political opponents and dissidents. The famous case I used as an example was that of Sir Thomas More, Chancellor of England and Catholic saint, who was convicted of treason and executed under King Henry VIII.

More had raised no rebellion against the King. He had not spoken against the King or opposed him in any way. Merely, he had refused to take the oath of the Act of Supremacy, recognizing the King as Supreme Head of the Church in England. Because More was a famous and much-admired figure, his silence on the matter of the Act infuriated the King. So More was prosecuted, convicted and put to death for political reasons, not because he had committed any definite crime under English law.

And this, I realized, was precisely what Democrats and progressives were trying to do to Trump: convict him of an ill-defined political crime, relying on dubious legal reasoning to find a way around due process. In other words, they were trying to do with the charge of insurrection exactly what the Framers sought to prevent regarding the charge of treason. It was strange behavior indeed by people who make so much of their desire to defend “our democracy.”

For without the rule of law, there can be no democracy. The very foundation of our constitutional order and political system is, or ought to be, the principle that a person who has not been convicted of a crime cannot be denied the rights, liberties, privileges, and immunities to which every American citizen is entitled. This, incidentally, is stipulated in Section 1 of the Fourteenth Amendment:

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.

It goes without saying that Donald Trump received from Colorado no due process of law—as indeed the dissenting justices on the Colorado Supreme Court noted. The majority’s determination that the former president had engaged in insurrection was a lawless and reckless act of judicial tyranny. Section 5 of the Fourteenth Amendment stipulates that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress, not some state supreme court. And this Congress has done by criminalizing insurrection in federal law.

It's certainly true that Trump bears a considerable share of the responsibility for what happened on January 6, and for that two remedies were available. First, Congress could have impeached and convicted him of “high crimes and misdemeanors,” and removed him from office. Impeachment being a political process with limited penalties, it would not have branded Trump a criminal. It would, however, have barred him from running for president again. And indeed, Congress did impeach him—but failed to convict him.

Second, Trump could have been charged with the crime of insurrection, which is right there in federal law. But special prosecutor Jack Smith, the celebrated Lawfare Warrior, has not charged him with insurrection. Nor, indeed, were any of the people prosecuted for their part in the January 6 riot charged with insurrection. In the eyes of the law, therefore, no insurrection occurred. And if it’s your opinion that an insurrection did occur on January 6, 2021, well, you’re certainly entitled to your opinion, but it has no legal standing.

Prior to the Supreme Court’s ruling, Substack and other venues were abuzz with eager speculation about what the justices might do to dodge the issue. Surely Chief Justice Roberts, an “institutionalist” concerned with the Court’s public image, would produce some solution or other that would let Colorado boot Trump from the ballot. All this was ridiculous from start to finish. There was never any possibility that the United States Supreme Court would let a bunch of state-level partisan hacks in black robes meddle in a presidential election. The hate-Trump crowd was engaged in what Napoleon called “making a picture”: rearranging reality to match their preconceived notions.

This was, the Emperor remarked, one of the worst mistakes a general can commit. Democrats and progressives should take note of his admonition—because the picture they’ve made, which led them up a blind alley of fancy Fourteenth Amendment theorizing, is also crowding out the realities of this presidential election year.