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. CONST. amend. XIV, § 3.
Let my id (maybe super-ego) rage for a minute before getting into some not-too-intense (but lengthy) legal analysis. In short, a Colorado judge found that traitor trump did, in fact, engage in an insurrection against the United States of America, but he’s allowed to do so. Un-f***ing-believable. The end is here! America is doomed because there is no judge or court in the land that will hold traitor trump accountable; they dare not cross the dictator in training for fear of God knows what. How can a nation survive when a judge recognizes that a former President of the United States of America surely engaged in a movement to overthrow the government, but there is nothing she can do about it, so why not let traitor trump run and try again? The country is so f***ing lost, and 50 percent of the sh*t-for-brains in this nation blindly follow the fascists right until the end of America’s democracy is assured.
And let me just say from the top that this judge, Sarah B. Wallace, started with the end in mind and then backward-engineered her opinion to find a way to keep traitor trump on the ballot. This is a classic example — that seems to be more and more popular with conservative judges and justices — of picking the desired outcome of a case first and then using tortured reasoning and a misreading of the law (or the Constitution) to make their preferred conclusions believable to the rest of us. If you read her opinion (which I did), then the flaws in her logic and her misconstruing text and meaning of the Constitution become apparent as she tries to make the end justify the means.
This judge spends the first 95 pages of a 102-page opinion painstakingly explaining in detail through an expansive review of the case’s facts, case law precedent, Constitutional law as it applies to the First and Fourteenth Amendments, textualism theory, histories and traditions reasoning, and dictionary definitions to conclude that traitor trump had, in fact, “engaged” in an “insurrection.” (The words are in quotes because the judge spent much time making sure the definitions of these “contentious” words fit the facts of the case, and I have the word contentious in quotes mockingly because judges like to make the obvious overly complicated.) The critical summary paragraph in her opinion reads, “Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.” (p. 95) (Norma Anderson et al. vs. Jena Griswold and Donald J. Trump, No. 2023CV32577, District Court, City and County of Denver, State of Colorado Nov. 17, 2023.)
Then, in the final, scant seven pages, she “explains” with weak and insubstantial reasoning why everything she just analyzed is worthless, as if she were tired of writing and simply wanted to end the opinion quickly like a high school student finishing up a term paper at the eleventh hour. Unlike the judge, I referred to a scholarly analysis to help me understand the Fourteenth Amendment. (See Bause, W. and Paulson, M. S., “The Sweep and Force of Section Three,” [2023].) The first — and most obvious — point of contention is why the President and the Vice President are not listed in the named offices to be disqualified. One taking a cursory and jejune reading of the Amendment may be easily persuaded that the Framers must have intended to omit the two highest offices in the land. They must have specifically barred insurrectionists from being disallowed from serving as President or Vice President. Of course, they must have! It only makes sense given the just concluded Civil War. Naturally, Davis and Stephens should have been eligible to run for and potentially win an election to lead the actual United States of America after forming the Confederacy. Makes total sense! On its face, the notion is ridiculous, and — sure — it is arguably equally absurd that the Framers specifically failed to include the President and the Vice President in the Fourteenth Amendment, but there is language in the Amendment and external supporting evidence that indicates the Framers took a more sweeping approach to “naming” disqualified persons. As usual, originalists and textualists miss the forest for the trees when understanding the Constitution, as seems to be true with this idiot Judge Wallace. She really does evince the often vast chasm of knowledge between scholars and practitioners that can be crucial to making informed decisions, especially (and particularly) in the field of law when novel and untested questions arise. I contend such questions should not be left in the hands of an unsophisticated judge.
But back to the analysis. Wallace’s conclusion on the question of the list of disqualified individuals states, “Here, after considering the arguments on both sides, the Court is persuaded that ‘officers of the United States’ did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to ‘support’ the Constitution whereas the Presidential oath is to ‘preserve, protect and defend’ the Constitution, it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath (pp. 100-101).” She arrives at this reasoning by parsing words and the list of offices in the Amendment — and she admits that the arguments cut both ways — but she elects to take a hyper-technical reading of the Amendment to dismiss some evidence and accept other evidence in favor of her preferred conclusion. I might also add that she thinks traitor trump is eligible to be on the ballot because running for President as an insurrectionist is not barred — by her “logic” — and because he was already President, for even if he were on “the list” of disqualified offices, then he still qualifies because didn’t take the “correct” oath; therefore, he could not have possibly offended the Constitution or the United States of America as the Framers intended by the language of the Amendment. In a sense, Judge Wallace claims he’s doubly safe from being disqualified. You can’t make this sh*t up if you tried; well, I guess you can. She did.
I contend that Bause and Paulson understood the true intent of the Framers when they advised on how to read the Fourteenth Amendment in the opening paragraph of their argument:
First, the language of these provisions should be read in as straightforward and common-sense a manner as possible. The text must be read precisely, of course, but also sensibly, naturally and in context, without artifice or ingenious invention unwarranted by that context. Some constitutional provisions embody precise terms of art that must be attended to. But a reading that renders the document a “secret code” loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one. Keep this in mind as we proceed: we think readers should be wary of any interpretation of Section Three that would impute to the text a hyper-technical set of hidden distinctions not fully warranted by the language. Where the simplest and most plausible explanation of minor textual differences is merely stylistic or accidental variation, that explanation should not lightly be cast aside.
The Sweep and Force of Section Three (pp. 104-105)
Judge Wallace does precisely this: Cast aside the most plausible explanation of minor textual differences. Chiefly, the judge believes that the absence of “President and Vice President” in the list must be absolute and exhaustive, and those two offices could not possibly be subsumed in the “hold any office, civil or military, under the United States” clause of the Amendment. Granted, it is a curious construction to omit the president and Vice President, but odd construction should not prevent someone from being informed about the whole. Again, she refuses the “straightforward and common-sense” reading of the Amendment in favor of hyper-speculation about what the Framers did or did not do.
But fear not! Wallace tackled the plausibility that the offices of the President and Vice President could not possibly have been intended in the “hold any office, civil or military” language because, as she puts it, the President and Vice President are not “‘an officer of the United States.’” This, on its face, is absurd. If they are not office holders, then what are they? If they are not officers of the state, then are they? The State? Are they to be King and Vice King (a Prince)? Have we devolved into reading the Constitution as a royal manifesto? Should the presidential seal now read “L’état, c’est moi” ala the Sun King? But irrational logic yields absurd results, no matter how much she tries to engage in “ingenious invention unwarranted by that context,” as Bause and Paulson caution others against doing, which they summarize in their conclusion in the following excerpt:
In short, the ordinary sense of the text; the structure and logic of its provisions; the evident design to be comprehensive; the text’s many references to the office of the Presidency as an “office”; the seeming absurdity of the prospect of exclusion of the offices of President and Vice President from triggering the disqualification fashioned by the Radical Reconstruction Congress that drafted the Fourteenth Amendment; the fact that the only legislative debate over the language discussing whether Section Three inadvertently omitted the offices of President and Vice President rejected any such suggestion; and the fact that no one ever suggested that the “under/of” difference meant the presidency was not a covered office triggering Section Three, all convince us that the natural conclusion is the correct one: Section Three includes in its coverage, or “triggering” language, insurrectionists who once served as President and Vice President. And Section Three excludes disqualified insurrectionists from subsequently holding the office of either President or Vice President.
The Sweep and Force of Section Three (p. 111)
I conclude with the most important question yet to come: WWSD? Indeed, what would SCOTUS do? Nothing else matters, not Judge Wallace’s opinion or any scholarly analysis. The only thing that matters is how the six uber-conservative supermajority theocratic wing of the Court rules, and I think we have a good idea of their leanings. They believe in an imperial (conservative) presidency. While they have not had the opportunity to rule whether traitor trump is above the Constitution explicitly, I think this will be their chance to place him beyond the bounds of the Constitution when it comes to allowing an insurrectionist to become the head of the government because, of course, that’s what the Framers intended. Of course, they did. Any plain reading of the Constitution would more than suggest the opposite, but then lawyers read the document, and then suddenly, meaning becomes meaningless. Welcome to stupid America! Too f***ing stupid to apprehend the obvious. Oh, well!