You don't see presidential candidates
who are less than 35 years old or who are not US citizens by birth
because those qualities are required by our constitution. Thanks to
former president Trump there is another constitutional requirement
that applies to presidential candidates that needs to be considered
this cycle.
The 14th Amendment, Section 3 of the US
Constitution makes it clear that a former office holder who has taken
an oath to defend the Constitution and then participates in an
insurrection or gives aid or comfort to a participant is disqualified
from holding office. The 14th Amendment does not specify the
criteria for imposing disqualification. It also does not require the
legal standard of proof beyond a reasonable doubt or a conviction. We
may eventually want an amendment, law or Supreme Court ruling to make
this more clear, but for now we are faced with an immediate need and
the Constitution provides a solution.
One obvious answer of who would enforce
this requirement and decide what criteria they would use might be the person
or offices in each state who would determine if a candidate meets other requirements to be on the ballot (such as age and citizenship). I think the person who makes
those decisions in most states is the Secretary of State.
Another option is a court ruling.
A court in Colorado was asked to remove Trump's name as a
presidential candidate from the Colorado ballot. The judge agreed
that former president Trump “incited” the January 6, 2021 riots
and backed that with evidence including testimony given to the House
January 6th Committee.
After clearly stating that former
president Trump had participated in an insurrection, the judge
accepted the defense claim that the presidency was not an office as
required in the amendment. The judge agreed that if the authors of
the amendment intended for it to apply to a former president they
would have explicitly said that. The judge then refused to remove
Trump from the ballot.
Granted that the amendment wording is
very vague, but that sounds like a judge searching for a way to not
remove Trump's name from the ballot. This will have to go to the
Supreme Court and would have even if the judge's decision had gone the
other way and had removed Trump's name from the ballot.
The most important thing is the judge
clearly said former president Trump had participated in an insurrection. Of course, the January 6th Committee also proved
he incited an insurrection. I would argue there is stronger and more
timely proof that Trump incited an insurrection.
Former president Donald Trump was
impeached by a bipartisan majority in the House (including ten
Republicans) for “incitement of insurrection”. Although there
were not enough votes in the Senate to convict him, there was a
bipartisan majority in the Senate (including seven Republicans) who
believed he was guilty as charged. Every Representative and Senator
who voted to impeach or convict knew that their vote would not remove
former president Trump from office. President Biden had already been
sworn in before the final Senate impeachment vote. However, their vote did
show they believed former president Trump had participated in an
insurrection and should not be allowed to be president again (impeachment conviction means the person is removed from office and disqualified from holding office again). Their votes had nothing to do with the 14th Amendment, but they clearly declared he had participated in an insurrection and should not be allowed to serve again.
I
believe the bipartisan majority votes for impeachment in the House
and Senate are enough by themselves to satisfy the constitutional
requirement to disqualify former president Donald Trump from becoming
president again on a national basis, not just the state level. As I said, this will need Supreme Court
approval, but a clear reading of the text should support his
disqualification.
I hear a lot of claims that Trump's fitness to hold office again should be decided by voters. I'm sympathetic to that claim, but the 14th Amendment was written after the Civil War to prevent southern sympathizers from electing people to offices in a government they violently tried to destroy. That sounds close to the situation we face today. We have a large segment of the citizens who seem very willing to re-elect a man who lies that the last presidential election was stolen, incited an insurrection, tried to overthrow the validly elected government (as certified by all state governments and many court cases) and continuously brags he will take unconstitutional actions if re-elected. The 14th Amendment is still in the Constitution and until it is revised or revoked we should use it to counter a charlatan who seriously threatens our country.
Text of the 14th Amendment,
Section 3, to the United States Constitution
“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.”
The highlights are mine.