Twitter, Donald Trump, and the 14th Amendment

There is someone who
I follow on Twitter and know from Second Life, who’s opinions I
respect (even though I sometimes disagree with them), and through
following, I’ve learned much from. He’s currently of the belief
that the 14th Amendment should prevent electors from
voting for Donald Trump, or in some way force the Supreme Court to
void such an election. (I hope I am not mischaracterizing his
position here).

The problem is that
Section 3 of the 14th

Amendment does not say what he thinks it does,
nor can it apply to Donald Trump.

image

(Photo of Original
Section 3 of the 14th

Amendment

from National Archives)

Amendment XIV;
Section 3

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
14th

Amendment was passed originally to prevent former Confederate office
holders and military officers from holding positions in the US
government. It restricts that disability to people 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”. As Donald Trump has never
fallen into any of those classes, nor has he ever taken any oath to
support the Constitution of the United States, Section 3 does not
apply to him.

While you could
argue that upon taking the Presidential Oath of Office, Trump would
be immediately disqualified, but that then becomes a matter for
Congress to deal with via the Impeachment process. And any such
arguments would come up against the vagueness of the “given aid
or comfort to the enemies thereof” clause. Note that the
language used here (“given aid or comfort to the enemies
thereof”) is deliberately similar to the definition of Treason
in Article III, Section 3 (“Treason against the United States,
shall consist only in levying War against them, or in adhering to
their Enemies, giving them Aid and Comfort”).

But who are
“enemies”? How does someone define that? Do we have to be
at war with someone for them to be our “enemy”? Is it just
nations the current administration dislikes? What is “aid or
comfort”? Does a business relationship qualify? Does verbal
support? Who knows? There is a reason Treason prosecutions have been
extremely rare in US history, and convictions even rarer. The danger
of broad definitions of “enemies” and “aid or comfort”
should be obvious based on how often politicians of all sides accuse
people who disagree with them politically of “treason”.

Most importantly,
even if we assume Russia is an enemy of the United States for
14th

Amendment purposes, the commonly raised charge against the Trump—that
Russian hackers deliberately undermined the Clinton campaign to help
his election—would not be covered by the language of that
Amendment.

Why? Because the key
phrase of Second III is “give[] aid or comfort to the enemies
thereof”. It is not enough to show Trump was helped by the
Russians; the 14th Amendment requires that he be shown to have helped
the Russians. The 14th Amendment specifically lacks the
more general “adhering to their Enemies” clause of the Treason
definition in Article III. (The reason for that goes back to the
post-Civil War historical context of the 14th Amendment.
The writers did not want to disqualify everyone in the South; they
wanted to unify the country.)

While a good
constitutional case can be made for the independence of Presidential
Electors, and their ability to vote for whoever they choose, for
whatever reasons they decide, Section 3 of the 14th Amendment
provides no support for such an argument.

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