Feb 8, 2024 5 min read

Trump, the 14th Amendment, and the Supreme Court

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This week, the Supreme Court’s going to begin hearing one of the more momentous cases in American history. Is Trump eligible to be a the ballot for President? This comes after Colorado and Maine both ruled that he wasn’t—because he’d violated the 14th Amendment.

How much does this matter? A very great deal.

The 14th Amendment’s remarkably clear on the issue at hand.

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.

Perhaps because it’s so strikingly clear, Trump’s lawyers have already had to argue plenty of crackpot theories. The President isn’t an officer, and the Presidency isn’t an office. Of the United States. Go ahead, roll your eyes. It cues up the next absurd defense—the President doesn’t take the same oath of office as others do. Next, that Congress isn’t required to “enforce” it, as if the Constitution were merely…optional.

To call these defenses laughable is to understate the case. They bring us to the Big One, which is the only one, really. That what happened wasn’t an “insurrection. This is really the issue before the Supreme Court. I think it’s probably quite obvious, though, you can form your own judgments, about what the truth is regarding this question. If attempting to overthrow democracy and overturn an election by storming a nation’s seat of power isn’t “insurrection,” then what is? If a naked hard coup attempt isn’t “insurrection—the modern term for it, versus the antiquated one—then what could be?

Sadly, this is where America’s pathetic Supreme Court—unbelievably—is. “Chief Justice John G. Roberts Jr. challenged lawyer Jason Murray to define the limits of the 14th Amendment’s bar on insurrection — and how to decide who qualifies as a participant in an insurrection.” Hello, earth to John Roberts—if inciting a mob of paramilitaries and fanatics to spill blood on the steps of Congress, for the sake of overthrowing an election, doesn’t count as “insurrection,” what would it take? A ninety foot tall Godzilla, only with a Trump face?

So this isn’t really about Trump, in a larger sense, at all. Rather, it’s the Supreme Court itself who’s on trial here. You couldn’t have a more clear-cut a) piece of legislation, in this case, the 14th Amendment, whose language and intent are both crystal clear b) cornucopia of evidence before you, given that not only was all this captured on the modern wonder of video, streamed around the world, but whose larger puzzle pieces were neatly assembled by the Jan 6th Committee.

This shouldn’t be a hard case to decide. It shouldn’t be one that brooks much argument, either way. The only real debate that’s to be had is a “strategic” one, a political one, which is: is it sensible to remove such a candidate from the ballot, given the inevitable backlash. But that’s politics, not the law. An easier case has rarely ever sat before a Supreme Court—and certainly not one of such grave historic importance.

And yet we all know that the decision is hardly likely to be so clear cut. And that’s precisely the problem. They might decide for Trump on a technicality. They might buy the absurd arguments put forth by his lawyers. They might decide—remember, this is a court made up of die-hard Trumpists—to just throw the whole baby out with the bathwater of democracy, throw their hands up, and basically say, the 14th Amendment doesn’t really matter at all.

This is why America’s been downgraded as a democracy. Precisely this sort of disjuncture. We now have a case before the judiciary which should be a slam dunk for democracy, and yet we all know it hardly will be. That’s banana republic level territory, to use a phrase I don’t like, but it makes the point, I suppose. Which is that in this case, the judiciary can hardly be trusted to uphold the constitution. That’s a bad place for a country to be, and it’s why American democracy’s already on the brink.

Another way to put that is: America’s well into a constitutional crisis, only it doesn’t quite know it yet. How can it be the case that a figure who led a hard coup is now the leading contender for President? Surely the crossing of that line must come with some consequences, or democracy has little meaning, in the sense of equality under the rule of law. And yet the consequences for Trump have been fleeting and vanishing. The foot soldiers of Jan 6th received a metier of justice, but Trump’s largely…gotten away with it. That’s the territory, make no mistake, of a constitutional crisis, because no constitution worth its salt says: leading a coup is perfectly OK, we forgive you.

It’s this context that’s most troubling. The decision before the Supreme Court should be easy…were it a sane one. Instead, it’s an openly corrupt one which largely lacks legitimacy, and can hardly be relied upon to defend democracy.

It’s hardly a coincidence that all this hinges around the 14th Amendment. It’s perhaps the most crucial of the Reconstruction Amendments, whose first section grants citizenship universally, and whose second section provides equal protection under the law. The third section—the one about a President betraying his oath, and undertaking an insurrection—seems to have been written precisely to safeguard the rest of the Amendment, from those who wished to undo democracy with violence. And in the Trump era, with it’s open supremacy, demagogic appeal, and naked fascism—all of that is exactly what seems to have happened, a Neo-Confederate vision of America only for “real” Americans, imbuing the framers of this revolutionary piece of statecraft with visionary prescience.

All this lies before the Supreme Court. The legitimacy of the 14th Amendment is what’s at stake here, and should the decision go Trump’s way, his fanatics are hardly likely to stop with section three. A judiciary which cloaks clear-cut issues in veils of nonsense for the sake of fanaticism—that’s an institution barely worth the name. Yet that’s where America is now, and so the decision isn’t likely to fully go democracy’s way—that much is almost certain. The question then becomes: what good is a constitution, if ignorance and deceit leave it silent, tattered, unheard—and unspoken? Isn’t that, too, a rebuke and rejection of democracy?

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