There’s a Constitutional Amendment that’s getting more discussion than the two most talked about.

Commentary

Put the First and Second Amendments on the back burner. The big story is the 14th Amendment and, particularly, Section 3

First, some background.

The Constitution of the United States has 27 amendments. The first ten amendments were adopted (September 25, 1789) and ratified (December 15, 1791) simultaneously and are known collectively as the Bill of Rights. The post civil war 13th, 14th, and 15th amendments, collectively known as the Reconstruction Amendments, were ratified between 1865 and 1870. Those three are considered by some to be the most important amendments after the Bill of Rights. The 13th abolishes slavery. The 14th defines citizenship and contains the Privileges or Immunities Clause, the Due Process Clause, the Disqualification Clause and the Equal Protection Clause. The 15th prohibits the denial of the right to vote based on race, color or previous condition of servitude. And the last? The 27th, was, like the Bill of Rights, proposed on September 25, 1789. But it wasn’t ratified until May 7, 1992, an astonishing 202 years, 223 days later! What was in it that took almost 203 years to ratify? The 27th is that incredibly important amendment that delays laws affecting Congressional salary from taking effect until after the next election of representatives. As the late, great Jack Paar would have said, “I kid you not.”

Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states. Three of them, at least in my view, would seem to reflect what America should stand for, but apparently doesn’t:

• Child Labor Amendment which would empower the federal government to limit, regulate, and prohibit child labor.  Pending since June 2, 1924. Latest ratification took place on February 25, 1937.

• Equal Rights Amendment which would prohibit deprivation of equality of rights by the federal or state governments on account of sex. It was proposed March 22, 1972. Initial ratification period ended March 22, 1979 and the extension period ended June 30, 1982.

• District of Columbia Voting Rights Amendment which would treat the District of Columbia, as if it were a state regarding representation in the United States Congress giving DC representation in the Electoral College (which it already has per the 23rd Amendment which would be repealed in this new amendment) and participation in the process by which the Constitution is amended. [For reference, the District of Columbia has a larger population than two states with the representation sought in this amendment, Vermont and Wyoming.]

With all the above as background, why the sudden interest in the 14th Amendment ratified 155 years ago? And why is it currently so prominent in the public discourse among both liberal and conservative constitutional scholars? Can you say, “Disqualification Clause?”

Section 3 of the 14th Amendment

“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.”

So?

Heather Cox Richardson, the Boston College history professor and author of the newsletter, “Letters from an American,” firmly in the liberal/progressive/”Blue America” camp, began her August 19 letter with this:

“Various constitutional lawyers have been weighing in lately on whether former president Donald Trump and others who participated in the effort to overturn the results of the 2020 presidential election are disqualified from holding office under the Fourteenth Amendment to the Constitution.”

Wait, some doubters might ask, “do you really want me to believe a radical left-wing, nut-job like Heather Cox Richardson?” Of course not, silly. But how about listening to these constitutional scholars who are calling for Trump’s disqualification? (Rather than paraphrase or simply excerpt parts of these articles I will provide a short overview and also will include links to PDFs of each since not everyone has access to the articles.)

J. Michael Luttig and Laurence Tribe

Michael Luttig, a conservative former federal judge on the U.S. Court of Appeals for the Fourth Circuit appointed by President George H.W. Bush, and the more liberal Laurence Tribe, the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University and one of America’s foremost judicial scholars, joined forces to publish an article in The Atlantic titled: “The Constitution Prohibits Trump From Ever Being President Again”

Luttig and Tribe’s central thesis: “The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.”

Edward B. Foley

Edward B. Foley is an American lawyer, law professor, election law scholar, and former Ohio Solicitor General. A Republican, he is the theorist of the “blue shift,” a phenomenon in American politics in which in-person votes overstate overall percentage of votes for the Republican Party (whose color is red), while provisional votes, which are counted after election day, tend to overstate overall percentage of votes for the Democratic Party (whose color is blue). When the provisional votes are counted after the election, there is often a shift in totals toward the Democrat, or blue, candidate. His recent op-ed in The Washington Post was headlined: “Forget the Trump trials. He might already be ineligible for 2024.”

Foley’s opens his argument with this: “None of the criminal prosecutions of Donald Trump, even if he is convicted, can constitutionally stop him from running in — and winning — next year’s election. But there’s a serious argument that, separate from any criminal charges, Trump is constitutionally disqualified from returning to the White House because of his role in the Jan. 6, 2021, insurrection at the Capitol. And if the Constitution bars him from the presidency, then he’s not entitled to be on the ballot, and it becomes the job of state election officials to keep him off.”

William Baude and Michael Stokes Paulsen

Baude, is a professor at the University of Chicago Law School and director of its Constitutional Law Institute. He is a scholar of constitutional law and originalism. Paulson, a member of the conservative Federalist Society, is Distinguished University Chair & Professor of Law at the University of St. Thomas, They have a forthcoming paper to be published in the University of Pennsylvania Law Review to be titled, “The Sweep and Force of Section Three.” In it they argue, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.” They go on to write, “All who are committed to the Constitution should take note and say so.” Both Luttig/Tribe and Foley point to Baude/Paulson in their arguments. (At this point, only an abstract of the Baude/Paulson paper is widely available.)

I’m going to let all this sink in for a while pending a final review; I need to get ready for the first GOP presidential debate tonight. With Trump missing in action, do you think one of the candidates who so desperately wants to topple him will bring up the 14th Amendment and disqualification? I mean even one of their Federalist Society colleagues has. Ok, I doubt it. But maybe someone will surprise me. Chris Christie? Possible. Or mealy-mouth Mike Pence? LOL!