Trump, His Enemies, and the 14th Amendment Gambit

The increasingly popular claim that Section 3 of the 14th Amendment bars Donald Trump from running in 2024 does not work. Here's why.

The effort to keep Trump off next year’s ballots has gotten traction in two states as of this writing: Colorado (where the left-leaning Citizens for Responsibility and Ethics in Washington filed a lawsuit on September 6) and just this past week in Minnesota (lawsuit by a group calling itself, amazingly, Free Speech for People). Both appealed to Section 3 of the 14^th Amendment as barring Trump from being allowed to run for office again. It seems likely that other states controlled by Democrats will soon initiate their own efforts, and that the issue will come before the Supreme Court.

Trump’s enemies, which include Establishment Republicans as well as Democrats, will say they are “safeguarding our fragile democracy” or something equivalent, even though Trump remains far and away the leading candidate for the GOP nomination next year.

Yes, they’re serious about squaring that circle.

But heavyweight Constitutional scholars have weighed in on the issue, saying the same thing: Section 3 of the 14^th Amendment renders Trump ineligible to run for president, because he fomented an insurrection against the U.S. government on January 6, 2021, preceding weeks leading up to that event. (E.g., this.)

As I’ve noted before, the desire to keep Trump from returning to office has become an end that justifies any and all means if you’re a power elite or cultural leftist. Thus far he’s been slammed with unprecedented indictments, a growing schedule of court appearances that will tie up his time next year when he needs to be campaigning, and use legal fees to drain his finances.

Some pundits, though, are acting like the 14^th Amendment is the real slam-dunk. Is it?

What does Section 3 say?

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 of 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.

The intent here was to bar former officer holders of the Confederacy from ever running for office again. It’s barely been looked at since.

This should be enough to indicate what I’ve argued previously about the importance of official narratives to be taken as gospel, surrounded by phrases used mantralike, as conversation-stoppers. That January 6 was an insurrection against democracy is one of those phrases. Another frequently-used phrase is deadly riot (or deadly Capitol riot), although as we’ll see in a minute, an insurrection and a riot are not the same thing.  

Does what happened that day constitute an insurrection or a riot? That’s one salient question. If the answer is NO, then a second salient question loses its raison d’être: did Trump’s words, delivered from the Ellipse earlier in the day, give rise to it?

It might be worth noting that none of the allegations against Trump related to January 6 actually use the word insurrection. Read an account of them here (and note how often they use the word conspiracy; it’s okay for approved media outlets to use this word, and for them it’s not a theory). Surely, though, it is fair to say the allegations presuppose insurrection narrative, at a level that would override obvious claims that Trump’s criticisms of the November 2020 election are protected speech under the First Amendment (parallel to its not authorizing you to shout “Fire!” in a crowded theater unless there really is one).

What, exactly, is an insurrection?

Merriam-Webster says: an act or instance of revolting against civil authority or an established government.

Cambridge Dictionary says: an organized attempt by a group of people to defeat their government and take control of their country, usually by violence.  

According to Black’s Law Dictionary, it is a “rebellion, or rising of citizens or subjects in resistance to their government.”

Before continuing, a caveat. Calling up definitions might be helpful, but not decisive. Supporters of different ideologies have their minds made up and will see what they want to see both in events and in words on paper. This means all we can do here is key in on certain of those words and ask if they really reflect what happened.

The terminology distinguishes a revolt from a riot, and associated insurrections with the former, not the latter. Riots have happened periodically in U.S. history, but it is the rare event that constitutes a revolt, which strikes at the core of what a government is. Shay’s Rebellion was a revolt: a full-scale uprising. What happened in Watts in the 1960s, violent as they were, were riots.  

The George Floyd riots weren’t a revolt — although what happened in Seattle might be a borderline case. Antifa-type leftists were able to take over several city blocks, disrupt normal flows of traffic and commerce, and make themselves the sole authority there. I’ve yet to hear the word insurrection applied to that event. Possibly because Seattle’s pushover hard-left city government let them get away with it for several days. Hence actual violence was minimal.  

What really happened on January 6, 2021?

Conservative people assembled by the tens of thousands in Washington, D.C. Not a single building was burned, or car torched, or street taken over by thugs, because conservatives don’t tend to do those things!

Then, that afternoon, groups of people, many wearing MAGA hats, one dressed in a wild costume (the so-called QAnon Shaman), entered the Capitol building unauthorized. I’ve never said this was a good idea! It wasn’t! A few got violent, breaking a few windows and assaulting Capitol police, but most walked in through open doors unimpeded. It’s on video. A few invaded Congressional offices such as Nancy Pelosi’s and did silly things like put their feet on her desk. This was an even worse idea! But most just walked around, filming and taking selfies. Some were only inside the building a few minutes.

Corporate media reminded us — one of its mantras — that “five people died” in a manner as to insinuate that Trump supporters were responsible. They weren’t. Two were killed by police, one of them (Ashley Babbitt) shot in cold blood from behind by a Capitol cop who wasn’t identified for months, and was cleared of allegations of wrongdoing.

The others died of health problems. Capitol cop Brian Sickwick’s death was falsely blamed on protestors who were said to have attacked him. No one attacked him. He had a stroke, doubtless associated with the event but hardly the doing of any protestor. This is proof that corporate media simply makes crap up and then keeps repeating it. How many other such fabrications now have over a thousand people incarcerated?  

Incidentally, the George Floyd riots were more widespread and far deadlier. Eighteen people were killed, over a billion dollars’ worth of damage was done in over a dozen cities, people whose cars struck violent protestors as they tried to flee in terror were brought up on charges, all in addition to the local “declaration of independence” in leftist Seattle.

Contrast this with the five deaths at the Capitol and $1.5 million in damage to the building.  

Point being, even if radicalized groups like the Proud Boys and the Oath Keepers were involved, there was no direct and concerted attempt to take control over the country on January 6. There was an attempt to stop the certification of an election tens of millions of people believed (still do) was stolen.  

Jan6ers believed there had been an attempt, at the highest levels of power, to prevent Trump from winning a second term, and that it had worked! Statements by the elites themselves in one of the country’s most elite publications confirm at least some of this, that there was a behind-the-scenes effort, coordinated by Big Tech allied with the cultural left. The narrative of that material is that they were trying to prevent Trump from stealing the election.

Defenders of the official Election 2020 narrative will bleat that x number of courts found no evidence of election fraud.

I recall affidavits circulating, signed under penalty of perjury, claiming to have witnessed wrongdoing (e.g., ballot-stuffing) at numerous polling places. I saw a couple of these affidavits. I won’t say from where, or who sent them to me. The persons had suffered public smear campaigns and went into hiding, alleging death threats.

The affidavits — supposedly there were over a hundred of them — have all been memory-holed.

Another salient question is, How does a guy who barely campaigned, has the charisma of a sack of potatoes, and couldn’t fill college auditoriums, get 7 million more votes than a guy able to fill arenas? Ultimately the claim that there was nothing amiss with Election 2020 makes zero sense.

The men and women who invaded the Capitol hoped they could stop Mike Pence and Congress from undertaking an action that would pass the reins to an administration they firmly believed would be illegitimate, and send the matter back to the disputed states.

That’s it! It wasn’t a an “insurrection,” therefore! The protesters believed in democracy, and they believed they were taking it back, not attacking it!

Nearly everyone knew why they were there long before Trump spoke that day.

What did Trump say about going to the Capitol? Word for word, in context (emphasis mine):

… I think right here, we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.

Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.

Today we will see whether Republicans stand strong for integrity of our elections…

Corporate media reportage typically omits the phrase peacefully and patriotically. Another comment on corporate media honesty, or lack of. Note that Trump never said to enter the Capitol. That was guys like Ray Epps, who then wondered why he was accused of being an agent provocateur working for the feds. I doubt he was the only such person, just the one who got caught. Were there people there to cause trouble, not support Trump? No one can prove it, but nor can anyone rule it out — especially given that infiltration is something both leftists and feds (especially the FBI!) are very good at! 

Returning to Trump’s speech, from near the end, the passage corporate media has most often seized upon:

And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.

Was Trump urging, or even suggesting, violence?

I checked all the usages of the word fight in the speech. All are metaphorical. Not one of them implies violence.

For example, this one, a reference to Rudy Giuliani: And Rudy, you did a great job. He's got guts. You know what? He's got guts, unlike a lot of people in the Republican Party. He's got guts. He fights, he fights.

Surely Trump is not saying that Giuliani gets violent!

The same with this reference to Congressional Republicans: There's so many weak Republicans. And we have great ones. Jim Jordan and some of these guys, they're out there fighting. The House guys are fighting.

And you have to get your people to fight. And if they don't fight, we have to primary the hell out of the ones that don't fight. You primary them. We're going to. We're going to let you know who they are. I can already tell you, frankly.

Surely no implication that the Republicans Trump approves of are physically fighting with anyone.

A third example, for the especially dense, might nail this point down:

Republicans are, Republicans are constantly fighting like a boxer with his hands tied behind his back. It's like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we're going to have to fight much harder.

That’s how Trump used the word fight in his speech: figuratively, not literally.

It’s the most common usage of the word in political contexts, taken out of context by those promoting the insurrection narrative.  

Bottom line: what happened on January 6 was not an insurrection; nor was Trump trying to foment one — and this remains true even for those who reject the allegation that Election 2020 was stolen.

Consequence: the 14^th Amendment doesn’t apply!

Even if it did, there’s another problem with the idea that the courts can keep Trump off the ballot, either in specific states or nationally.

Purveyors/corporate media supporters of the 14^th Amendment gambit may have read Section 3 but not Section 5!

Section 5 says clearly:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.   

I concede: I’m not a heavyweight Constitutional scholar in a major law school, just a guy with a doctorate in philosophy who left academia.

I can still read plain English, and if you’ve read this far, I hope that means you can, too.  

How heavyweight of a scholar do you have to be to realize that the 14^th Amendment argument for disqualifying Trump from running next year doesn’t work?!

This is not a job for the courts, including the Supreme Court. If this issue comes before them and the Supremes elect to follow the Constitution, they will have to decline to take the case by stating that the Constitution does not give the Judicial Branch jurisdiction, or they will have to reverse a lower court decision by pointing this out, that only Congress can keep Trump off the GOP ballot with appropriate legislation.

One can only pray that the Supremes get this!

What Congress would have to do isn’t at all clear. The Amendment isn’t specific about something that’s never been tried before. I don’t believe for a minute they’d do it. They have to know that the blowback could be worse than anything that happened on January 6!  

There’s a potentially far more serious consequence to any state foolishly pursuing the 14^th Amendment gambit. It would destroy whatever is left of the credibility of the political system in the United States!

Given that Trump is likely to remain Republican voters’ choice of nominee, if either the courts or Congress maneuvers to keep his name off state ballots, and the maneuver somehow succeeds, it will torpedo out of the water the claim that the U.S. is really a democracy!

This fracas erupted because of allegations of a rigged election. These people want to rig Election 2024 in plain sight!

Even Brad Raffensperger, on the receiving end of Trump’s calls to Georgia back in 2020, seems to get this. He recently penned a guest op-ed observing, “Anyone who believes in democracy must let the voters decide.”

So much for the idea that getting Trump off ballots is about “protecting democracy”!

Corporate media and its many satellites keep contrasting this mantra by invoking fears of “authoritarian populists” or “autocrats” whose actual mission has been to wrest control of the machinery of dominant institutions in their nations (education, media, etc.) from the hands of liberal-globalist elites and return them to their peoples.  

Of course, major pundits will keep trying to square this circle. It’s worth keeping in mind the level of intellectual-cognitive dishonesty and rationalization, or possibly just severe cognitive dissonance, that we’re dealing with here, as well as the locutions we surveyed in some detail last week that are being used to paralyze people’s brains and shut down all our critical thinking skills.  

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In 2021 I published my book What Should Philosophy Do? A Theory. Here, in three parts, are reasons you should think about reading the book if you’ve interest in the role worldviews play in civilization, and in shaping our lives:

Part I. Part II. Part III.

[Author’s note: while admittedly Substack is not The Atlantic Monthly, nor am I even close to being the most widely read writer on Substack, my level of readership has been disappointing at best. Pages like this cannot survive indefinitely without reader support. If this article does not reach at least 200 views, I will be taking a break from writing these short pieces in order to concentrate on other projects for a while. If you read this and approve, please don’t just give it a like but forward to your lists, especially if they contain the names and email addresses of public office-holders or other decision-makers! And please consider becoming a Patron to support my work. It’s not about money, however. These are the only ways the Internet “knows” that outsiders such as myself even exist.]