Photograph Source: Matt Johnson – CC BY 2.0
This week I had a misunderstanding on Facebook with a woman who posted a meme that announced California Governor Newsome’s request to that state’s Assembly to pass a bill to remove Trump from future ballots. The woman declared above this: “True patriotism requires upholding the Constitution, ALL of the Constitution!” She added: “I support defending the Constitution in its entirety!”
I quibbled over her word usage. “We who support using the 14th A insurrection clause to prohibit Trump from running for President (or any elected office) ever again (myself included) are not ‘defending’ the Constn. Nor are we upholding it. We are simply supporting the legal position taken by the legal experts in how that clause should be interpreted.”
The woman took umbrage and remarked (incorrectly) that I was making a “ludicrous statement” and saying “otherwise” than the legal experts.
Both this woman and I believe that Trump should be prohibited from holding elected office. Why does word choice matter?
Quibbling over word use is part of what lawyers and courts do in their efforts to interpret law. And it matters.
Technically, courts do not “defend” the Constitution. It is not the job of judges to defend anything. That is the advocate’s job — the lawyer’s job.
When a case comes before a judge that raises a constitutional question. the judge decides what the clause in question means and applies that meaning to the facts of the case.
Does this mean the judge upholds the Constitution? Yes. Kind of. At least when a constitutional issue arises, judges are required to interpret and apply the law in a way that is consistent with a valid interpretation of the Constitution. What is considered to be a valid interpretation differs according to the context. For example, where a fundamental right is in question, judges are required to apply “strict scrutiny.” The law must be narrowly tailored to serve a compelling government interest in order to pass strict scrutiny.
Fundamental rights are rights specifically identified in the Constitution (especially in the Bill of Rights) or have been implied through interpretation of clauses, such as under due process.
However, “rational basis review” is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment. To pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals.
(For “intermediate scrutiny” see here.)
Okay, but here no constitutional question is raised. No law was passed that potentially violates the insurrection clause. And no question has (yet) been raised that applying the insurrection clause to Trump would violate his constitutional rights. (Or that doing so would violate another section of the Constitution.)
So, what about deciding whether the 14th Amendment “insurrection clause” applies to Trump? Does this require defending the Constitution? At the outset, it requires deciding whether the clause applies to him. And that raises the question: who makes this decision?
Section 3 of the 14th Amendment states:
“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.”
Does Trump meet this definition? Clearly, yes. He held office, was an officer of the U.S., and took an oath to support the U.S. Constitution.
Has Trump engaged in insurrection or rebellion against the U.S.? On this, many disagree. He has neither been charged with nor convicted of doing so.
Judges are required by the canons of statutory and constitutional construction to apply the ordinary (or plain) meaning of the words they interpret. The insurrection clause does not require a conviction in order to prohibit an individual engaged in insurrection from holding office. Nor does the clause exclude a serving or former president.
According to the Oxford dictionary: an insurrection is a “violent uprising against an authority or government.” A rebellion is “an act of violent or open resistance to an established government or ruler.”
Did Trump engage in insurrection or rebellion? He didn’t actually march on the Capitol. He didn’t commit violence himself. How could he engage in a rebellion against himself as President or the government that he himself was still presiding over? Did he provide aid and comfort to those who did?
Who decides the answers to these questions?
According to Sam Levine in The Guardian:
“The push to disqualify Trump is likely to play out at the state level in parallel to both the federal and state cases criminally charging Trump and allies in connection with their efforts to overturn the election. The left-leaning group Free Speech for People has already sent letters to election officials in 10 states urging them to declare Trump ineligible to run for office under the 14th amendment. Crew is also preparing to file litigation in several states to disqualify Trump from the ballot.”
So, in the end, the courts may be the ones to decide. And this brings me back to my statement that words matter, because quibbling over words is exactly what a court will do if the case comes before it. Or rather, the lawyers will quibble and the court will decide. By engaging in these quibbles, both the lawyers and the judge will be upholding the Constitution.