Former federal judge Michael Luttig, one of the more formidable, conservative proponents of the theory that Section 3 of the 14th Amendment bars Donald Trump from seeking office, took to the website formerly known as Twitter recently to push back on criticism that Section 3 has long been a dead letter.
Luttig says the Section is alive, well, and fully applies to Donald Trump. In three separate posts Luttig writes:
Section 3 is in the Constitution of the United States and it applies to the former president, whether one believes it should apply or should not apply.
Arguments that the Fourteenth Amendment should not be applied to the former president are not much different in principle, if any, than the former president's claim last December that the Constitution should be “terminated” and he installed into the Office of the Presidency.
Unsurprisingly, the Constitution does not permit of the termination or suspension of any of its provisions as and when politically convenient. Indeed it is a Constitution in no small part because it does not permit of such selective political application of any of its provisions.
Others legal observers are less than convinced of such assertions:
“The amendment was written to deal with those who engage in an actual rebellion causing hundreds of thousands of deaths,” [George Washington University law professor Jonathan] Turley said. “Advocates would extend the reference to ‘insurrection or rebellion' to include unsupported claims and challenges involving election fraud.”
Turley said he has long criticized Trump's January 6 speech, but he views the violence at the Capitol that day as “a protest that became a riot.” That definition would be crucial to applying the 14th Amendment, according to Turley, and Trump has not been found guilty of insurrection or incitement to rebellion.
“According to these advocates, Trump can be barred from the ballot without any charge, let alone a conviction, of insurrection or rebellion,” Turley said.
And so on.
The courts may yet have a say in whether Section 3 has any life in it or if, as others believe, it's been stone dead for decades.
As always, the legal arguments over a novel theory are interesting. But it's still hard to imagine a federal court wanting to step into such an argument involving a front-runner presidential candidate.
The most certain way to determine Trump's fate isn't a courtroom, but at the ballot box, where he will have to make his case to millions of voters – including the 81 million who didn't vote for him in 2020.
As NewsNation political editor Chris Stirewalt wrote, how those voters decide will tell us a great deal about the overall condition of our civic life:
Only voters can really break the spell. Without political consequences, the law is not enough to protect our virtue. If America's partisan hatreds have turned us into such moral imbeciles that we can see corruption only in those we despise, what follows Trump will make him look like Eliot Ness in comparison.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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