We can have the Constitution...
Or we can have Trump
I once saw Arnold Schwarzenegger give a speech in Washington, DC. It was a polished performance about making green politics cool. Republicans were whispering to each other: “too bad we can’t nominate this guy.” They meant: for president.
Schwarzenegger could not run for president because Section 1 of Article Two of the Constitution forbids it. The president must be a “natural-born citizen,” which is understood to mean someone who was born in the United States, or whose parents were citizens. Schwarzenegger, though a U.S. citizen, was born in Austria to Austrian parents.
Section 1 of Article Two is one, but not the only, place where the Constitution defines who may run for president. Whereas Section 1 of Article Two has to do with a factors over which a person has no control, place of birth and legal status of parents, Section 3 of the Fourteenth Amendment concerns how an American citizen behaves. It forbids officeholders who try to overthrow the Republic from holding office again. It reads:
“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.”
It is obvious on a plain reading of this part of our Constitution that (absent a two-thirds vote of both houses of Congress) Donald Trump is now ineligible for the office of the presidency. He took an oath as an officer of the United States, and then engaged in insurrection and rebellion, and gave aid and comfort to others who did the same. No one seriously disputes this. Trump certainly does not. His coup attempt after losing the 2020 election is the platform on which is he is now staging what he portrays as his campaign for the presidency. The big lie he told at the time he continues to tell. He defied the Constitution and is now running against the Constitution.
One of the odd features about our political life is our capacity to look away from the obvious when the obvious might be “controversial.” We talk a good deal about the Constitution, and almost everyone in political life claims to venerate it — but who reads it? You just have to get as far as the Fourteenth Amendment to see that Trump cannot be president. To be sure, other people have been trying to make this point. Section Three was discussed in early 2021 as a possible response to Trump’s attempted coup. Perhaps it is an accident of that debate, which led instead to impeachment, that Section Three has received little attention since.
So I was heartened just now to read a comprehensive, powerfully argued (and beautifully written) article by the (conservative) legal scholars William Baude and Michael Stokes Paulsen. It defends the plain reading of Section 3 of the Fourteenth Amendment on what would seem to be every historical and interpretive ground. It was written with all possible objections in mind. Rather than belabor these, I suggest you read the article itself (which should be published as some sort free ebook.)
The authors conclude that Trump is “no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.” Although I am focusing on Trump here, the authors of the article are concerned with insurrectionists in general. For them, Trump is one of many people who are now, given their participation in Trump’s coup attempt, ineligible for office.
I worry that we will find some excuse not to draw the obvious conclusion about Trump, so well grounded in the article. It was troubling, for me at least, to see the New York Times coverage of the article relativize its central finding with this vague but suggestive formulation: “voters remain free to assess whether his conduct was blameworthy.” This wording suggests that Trump can run for president, and that we as voters can then consider his ineligibility for that office alongside his legal problems (which the Times article then rehearses). That is wrong, because it misunderstands what ineligibility is.
Arnold Schwarzenegger would also like to run for president in 2024. He thinks he would win, and he may well be right. But we cannot decide to elect a president who is not a natural-born citizen. This is not an issue we are “free to assess,” because we are governed by the Constitution. For the same reason, we cannot vote for oath-breaking insurrectionists such as Donald Trump. Such people are barred by the Constitution from running for president.
We can have the Constitution, or we can have Trump.
TS 12 August 2023
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