The Fourteenth Amendment Scolds Abetting Trump’s Return

The media spent a large part of Donald Trump’s presidency waiting for the moment that he might become presidential. Like fools, they manned this post in spite of the fact that Trump had very specifically refused to comport with one of the central notions of the constitutional order: that there are reasonable limits on presidential power. Trump was hardly the first to abjure the notion that the chief executive was in any way constrained, but he was perhaps the most flamboyant occupant of the Oval Office at flouting this norm—the weeks he spent cultivating and then inciting an attack on the Capitol being the ne plus ultra of his misrule.

A lack of accountability since then has served our nation poorly. Three years on from the January 6 insurrection, but before the primary elections have even begun, Republican lawmakers are already refusing to commit to certifying this November’s winner. I suppose the silver lining here is that there won’t be much violence a year from now—there’s no need to ransack a Capitol whose occupants have provided for its pillage in advance.

This week, however, Trump’s lawyers upped the stakes considerably, contending that the president could not be prosecuted for ordering SEAL Team Six to assassinate a political opponent, unless he was swiftly impeached by Congress and convicted for the crime in the Senate first. That’s cold comfort to Trump’s murdered rival, to say nothing of any impeachment-minded lawmakers, who in this infernal thought exercise would obviously be the next under the gun of Trump’s mercenaries.

We are, however, not completely unarmed against Trump’s thuggery: Article 3 of the Fourteenth Amendment lays out a fail-safe, disqualifying anyone who played a part in inciting an insurrection from holding office again. Unfortunately, while it is rare for the Supreme Court to disarm anyone, it will, in all likelihood, deny the American people this protection. But the Roberts court has been vastly aided and abetted by our political media, who after waiting so long for Trump to discover virtue, have quickly declared the Article 3 tool to be a vice—either searingly unfair to use in this instance or invalid on its face. When the decision eventually comes, the press will have created an environment in which the Supreme Court’s disregard for the Constitution’s text won’t be viewed as a radical act.

That this consensus was reached so quickly is something of a surprise, as the dominant mode of the pundit class is to venerate the Constitution as a peerless document, the final answer to all questions. As The New Republic’s Osita Nwanevu has written, this reverence may be unearned. But the media has gone to strange lengths to specifically discount this one part of the Constitution that was designed to prevent the crisis we now face.

An indelible example of this rough treatment was published in The New York Times on December 28, the day that Maine’s secretary of state decided that a plain reading of Article 3 compelled her to remove Trump from her state’s ballot. The Times could not let the matter pass without injecting opinion into what purported to be a straight news story, referring to Article 3 in derogatory terms: “an obscure clause of a constitutional amendment enacted after the Civil War.” The Fourteenth Amendment, in toto, is about 400 words long. There are no “obscure” parts to it—no small-print footnotes stuffed away in the back pages or lost-to-memory secret lore that requires Nicolas Cage’s help to unearth.

Those who’ve been more up front about their opinion-mongering haven’t been any less meretricious in their treatment of Article 3. Writing for his newsletter, Indignity, Tom Scocca provides a concise survey of those who’ve recently endeavored to “pretend” that the Fourteenth Amendment doesn’t say what it says, from the “half-baked excuses” from pundits to the “feeble political claims” of legal experts doing business as Constitution doubters.

One example that stands out for its sheer mendacity comes from Yale Law professor (and it’s almost always a Yale Law professor) Jed Rubenfeld, who pooh-poohed Article 3 for The Wall Street Journal’s opinion section, admonishing those who might wield it to save the country from harm that while the “Colorado Supreme Court didn’t exactly get the law wrong” when it plucked Trump from its ballot, the “problem” was “there was no law to get right,” on account of the fact that “almost no case law exists on Section 3 of the 14th Amendment.”

Indeed, one of the big reasons that there’s precious little case law on that particular part of the Fourteenth Amendment is that it’s hitherto proven to be such an adequate bulwark against a president ordering an insurrection that hardly any presidents have tried it. It’s generally pretty hard to generate case law when everyone agrees not to break a law. But Rubenfeld’s reprimands ring pretty hollow if we must, at the first instance of this law being broken, concede that the plain text of the Constitution is invalid.

The most idiotic case against the Fourteenth Amendment solution is the one that’s been made the most often: the idea that the people, and not judges, must decide Trump’s fate. As Kurt Lash recently scolded from the New York Times opinion page, this battle for the Republic must take place in voting booths or not at all: “Let the people make their own decision about Donald Trump.”

But where did Article 3 of the Fourteenth Amendment come from, if not “the people?” These words were ratified through the same democratic process as every other amendment to the Constitution. They weren’t put there by gods or monsters. Moreover, as The New Republic contributor Andrew Koppelman pointed out, “The people” have, on two occasions now, unambiguously rejected Trump. In 2016, their decision was thwarted by the Electoral College; in 2020, Trump reacted to his Electoral College loss by trying to overthrow its decision through the corrupt means that this Constitutional amendment was specifically written to prevent. How many times do “the people” have to render a decision before they’re allowed to use the Constitution to enforce it?

There is every possibility that, this November, the American people will, for a third consecutive time, do exactly what Lash demands and again decide that Trump is unfit to rule. It will be well within the realm of possibility that the popular vote will once again be overruled by the Electoral College—or there may simply be enough Republicans on hand to deny the American people the right to the decision they’ve rendered. How will those chiding the effort to forestall this fate through lawful means account for themselves, should this come to pass? What is it about the broken America they’re helping to usher in through their empty, repetitive screeds that they find so appealing? Are the clicks really that good?

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.