Chicken Supremes

Cop with James Earle Fraser's statue of The Contemplation of Justice, waiting for the outcome of Trump vs. Anderson. AP Photo/Jose Luis Magana, via WJTV, Jackson, MS. 

I told you the main purpose of the Supreme Court in the Colorado case would be to avoid getting within 500 feet of an opinion on whether the adjudicated rapist and bank fraud Donald Trump ever violated his presidential oath by engaging in insurrection after he took the oath in 2017, and sure enough, they avoided it, though the three liberals, in their dissent-concurrence, did manage to use the phrase "oathbreaking insurrectionist" four times, which is all to the good.

The majority even avoided making the case about the questions of standing and venue—whether the plaintiffs (Colorado Republicans) had standing to sue to keep Trump off the ballot and whether the Colorado judiciary was the place to do it. Instead they argued, effectively, that there was nobody with standing and noplace for them to go anyway, and blaming that on Congress, I mean the Congress of the late 19th century, which had never passed any legislation telling people how it's supposed to get done, so it's useless: it's illegal for an oathbreaking insurrectionist to hold federal office, but impossible to stop him from doing it, because the technique is a lost secret of the ancients.

Which is similar to a good argument, because I think such legislation really ought to exist, except the way they do it is historically wrong: people had perfectly clear ideas of how to disqualify federal or state office holders for being oathbreaking insurrectionists, the proof being, as everybody knows, that they did it sometimes, though not often; as CREW, my source here, points out, they didn't have to, because oathbreaking insurrectionists of the time mostly understood from the amendment itself that they wouldn't get away with it, and instead sent Congress thousands of petitions to remove the disqualification in 1868, to which Congress responded in 1872 by passing the Amnesty Act for all of them, except some 500 high Confederate officers including ex-president Jefferson Davis.

CREW found only five disqualification cases involving federal officials in US history, and only three in which the disqualification ended up happening:

• Representative John H. Christy of Georgia, who seems to have served in the Confederate Army; when he won a House seat in the 1868 election, the Georgia governor refused to issue him a certificate on Section 3 grounds and the House refused to seat him, though it also refused to seat his opponent, John Wimpy, who had also served in the Confederate Army
• Rep. John M. Rice of Kentucky, also elected in 1868, whose seating was challenged by his electoral rival; the House Committee on Elections swore him in temporarily while trying to ascertain whether he had assisted the Confederacy or not and eventually determined he was eligible; 
• Rep. Alfred M. Waddell of North Carolina, elected in 1870, who had taken an oath before the war to support the Constitution as clerk and master of chancery in North Carolina and later served as a Confederate officer, and was judged disqualified by the North Carolina Supreme Court; the House decided it was not bound by the decisions of the North Carolina Supreme Court, and seated him  
• Senator Zebulon Vance of North Carolina, who had taken the oath as a member of the House before the war, and served as governor of the state under the Confederacy; after he was elected senator in 1872, the Senate refused to seat him under Section 3, also refusing his opponent, but he regained the seat in 1878
• Rep. Victor Berger of Wisconsin, who was convicted of espionage (for giving comfort to the enemy by writing anti-war editorials) after being re-elected to the House in 1918; the House refused to seat him, he won a special election and they refused again, his conviction was vacated (on grounds of bias shown by the judge, Kenesaw Mountain Landis) and they finally gave up trying to get rid of him

These cases have a good deal in common: they all involved people who had been elected members of Congress, not candidates being struck from ballots, and they were all decided inside their respective chambers, House and Senate, according to the chamber's ordinary rules, as they could have done if Section 3 had not existed.

Neither the House nor the Senate has power to expel a president, let alone a presidential candidate, but both together can remove a president, or any other officer in the executive or judicial branches, by the constitutional provisions for impeachment in the House and trial in the Senate, where a the consequences of conviction include permanent disqualification from public office.

I'm afraid that tells you what the position is: if Jefferson Davis had somehow gotten elected to the presidency in 1872, he would have been impeached, and the articles of impeachment would have mentioned Section 3 (indeed, this seems to have been anticipated in the exceptions to the 1872 Amnesty Act). The means for putting Amendment 14 Section 3 into effect already exist!

Similarly, the correct response to Trump's engagement in the January 2020 insurrection was pretty much exactly what Congress did, impeaching and trying him on the basis of Section 3, as the First Article of the impeachment plainly put it

(Wikipedia suggests the idea came from Rep. Alexandria Ocasio-Cortez, D-NY, but I don't know if that's totally true—I kind of hope so.)

Only it didn't work, as you'll no doubt recall. The Senate voted to convict Trump on Article I, 57 to 43, disqualifying him forever from the presidency on grounds of his being an oathbreaking insurrectionist, except by the stupid Senate supermajority rules the majority lost, as it usually does.

Everything else—the "self-executing" theory that a law should just come true of itself without anybody doing anything, and the idea that whether somebody engaged in an insurrection is just as simple a question as whether they're 35 years old, etc.— is silly TV lawyer talk. The real story, from beginning to end, is just another story of constitutional failure: as William Hogeland writes today,

Section Three is so messy in application, so poorly constructed as a long-term fix for anything, so passively written, that there’s no way to look at the history of its origins and progress and feel good about it. And when it comes to the past, the majority likes to feel good.

So they just wished it away.

Cross-posted at the Substack.