Monday, September 04, 2023

"Magic Wand"

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.

U.S. Representative Adam Schiff of California, the best-funded candidate for the Senate seat to replace Dianne Feinstein (D-Antiquity), maintains of the 14th Amendment to the U.S. Constitution

It doesn't require that you be convicted of insurrection.  It just requires that you have engaged in these acts.  It just requires that you have engaged in these acts. It's  a disqualification from holding office again. And it fits Donald Trump to a "t."

It most plainly does not fit Donald Trump; It does not fit him to a t, to a u, or to a v. David Frum in the pages (website?) of The Atlantic explains

To understand what the legal experts are talking about, you need to imagine yourself back in the world of 1866, when the amendment was drafted. (It was ratified in July 1868.)

The North had won the Civil War, but its victory was put in jeopardy by the lax policy of President Andrew Johnson. The successor to the assassinated Abraham Lincoln had been pardoning former secessionists. He had been looking the other way as southern white elites terrorized freed slaves away from voting. As things were going, ex-Confederates were poised to regain power not only at the local level, but also inside the U.S. House and Senate. Union-loyal Republicans faced a terrifying prospect: After so much blood had been spilled, the defeated South might reclaim at the ballot box the political sway it had wielded before the Civil War.

Section 3 of the Fourteenth Amendment was written to prevent that outcome. Anybody who had held federal or state office before 1861, and who had then supported the Confederacy in any way, would be debarred from holding office of any kind, federal or state, civil or military. The power to restore political rights would be removed from the president and awarded to Congress. Congress would have to approve the restoration by a two-thirds vote in each chamber.

Soon enough, the problem addressed by Section 3 receded....

There are other problems- institutional, practical, strategic, and electoral. (Frum addresses all but the last.)  However, Adam Schiff is a lawyer and if one assumes he is sincere, he clearly believes that the 14th Amendment fits Donald Trump like a glove.  But context matters. It's not surprising that a constitutional amendment drafted in the wake of a civil war over 150 years earlier would not be applicable to our present predicament. And it's not.

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