Trump’s two petitions to the Supreme Court regarding being disqualified in Colorado and Maine raise serious constitutional questions that go far beyond self-interested claims.
He claims the decision by a state court and its Democratic secretary of state violates the 14th Amendment’s insurrection clause and could lead to endless debate over who qualifies to vote on election day. If successful, his victory could spark litigation across the nation over who can cast their ballot and who doesn’t.
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On January 6, a violent mob stormed Congress and committed a variety of offenses, such as conspiracy to obstruct government proceedings and sedition. But what matters most to prosecutors is insurrection – an act that conflicts against an existing government which violates the Constitution – so several Republican senators, such as Mitt Romney, are encouraging prosecutors to bring incitement of insurrection charges against those who attacked Capitol.
Prosecutors who have thus far chosen not to prosecute anyone involved with Donald Trump’s election-rigging scheme would benefit from taking this next step, which is also one of the easiest charges against those who attacked Congress, since it doesn’t require proof of an agreement to use force or voter fraud – it only needs evidence that someone was encouraging or inciting others against U.S. authority or hindering its execution.
Insurrection is a crime
Justice Department officials would make a grave error in charging those who protest on federal property for “rioting,” since those protesters were simply voicing their opinions – not acting against their government.
Prosecutors should instead charge all those involved with insurrection, which is more serious and requires significant violence against the government to prove. Cliven Bundy and Ammon Bundy were charged with this offense when staging armed standoffs with federal authorities at their Nevada ranch and Oregon home, yet its prosecution is far less frequent in American history.
Utilizing federal law could stop election officials from using Section 3 to disqualify Trump in must-win states. This provision bars officials who take an oath to support the Constitution yet engage in insurrection or rebellion against it; it was invoked only briefly after the Civil War but hasn’t been used against anyone since 1919.
The insurrection clause is in the Constitution
The 14th Amendment of the Constitution adopted during Reconstruction Era following the Civil War provides for this clause by barring those who have betrayed their oath to support it from holding any position ever again; an example would be Jefferson Davis participating in an insurrection against United States which barred him from holding either state or federal positions subsequently or ever again – such as being president four years later!
Trump’s attorneys contend the disqualification clause does not apply to his presidency, which isn’t mentioned in Section 3, but must apply instead to offices requiring an oath similar to that required for electing presidents; further, they assert this provision was never meant to disqualify such offices.
Textualism and originalism is a conservative legal movement promoting strict interpretation of the Constitution according to its words and public understanding at the time it was adopted, rather than taking into account evolving social values or political ramifications.
The insurrection clause is in the 14th Amendment
Trump should be disqualified under Section 3 of the Fourteenth Amendment, which prohibits anyone who engages in “insurrection or rebellion” from holding office, according to critics of his candidacy. Additionally, this clause of the constitution requires candidates to swear an oath to support it as part of their candidate application.
But courts are unwilling to limit voters’ choices by striking people off of ballots, leading most attempts at using Section 3 to fail. State election officials are required to adjudicate challenges to candidates’ eligibility, yet many have failed to do so.
That could change if a state court finds that Trump’s actions surrounding his assault on Capitol on Jan 6 qualify as insurrection under Section 3. If this occurs, Congress would then need to lift that restriction; there are some doubts whether they can do this without amending the constitution – though in any event this case will likely end up before federal courts.
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