Balancing the Spirit of the Law with the Letter of the Law
Venting my frustration with the interpretation of the 14th Amendment
If memory serves me correctly, I learned the preamble to the United States Constitution in elementary school; the 5th grade to be exact. The total population of the United States, currently, is just about 336 million. The number of law school graduates in 2022 was just about 35,000, which is 0.01% of the US population. According to the latest census, 23.5% of Americans hold at least a four-year college degree.
The last amendment to the United States Constitution was the 27th Amendment (which was about congressional salaries). The 27th Amendment was ratified in 1992. The last amendment ratified to the United States Constitution that had sweeping impact on the country was the 26th Amendment in 1971 setting the voting age at 18. The number of lawyers in the country at that time was about 326,000, about 1.5% of the US population at that time. The minimum age to serve on a jury is the same as the minimum voting age of 18.
The point of all this data rambling is I believe that the Constitution of the United States was meant to be readily understood by anyone with a high school education, even less. And it’s been VERY frustrating listening to all of the analysis, arguments, briefs, and rulings about what the 14th Amendment is and is not.
As of this past Friday (January 5, 2023…my mother’s birthday), the United States Supreme Court has agreed to hear arguments related to the Colorado Supreme Court’s ruling removing a certain individual from the primary election ballot. The Colorado Supreme Court’s decision was based on Section 3 of the 14th Amendment.
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.
Over the course of 2023, the idea of using the 14th Amendment to remove a certain individual from primary ballots began percolating. Numerous states followed through on the idea and sought to disqualify him from the ballot. Colorado and Maine are the only two states that have actually disqualified him. Colorado struck first and as such it is the first case to be appealed to the US Supreme Court.
Of course leading up to and through these formal challenges, there have been all types of discussion and punditry related to the chances of these cases succeeding. There has also been discussion about the arguments against disqualification. And some of those arguments have been doozies. Doozies that have found their way into the formal appeal to the US Supreme Court.
Quite frankly I’m appalled at how insulting these arguments are to my intelligence. The President isn’t an officer of the United States? Are you f—ing kidding me? The President is the Chief Executive Officer of the United States. Because “President” was not called out in Section 3, Section 3 does not apply to the President? Again are you f—ing kidding me? For added insurance “or hold any office” is outright stated, but the notion that the President would be excluded is preposterous. The President doesn’t take an oath to SUPPORT the Constitution? Is someone really trying to say that the President has no connection to the Constitution?
For the record, the presidential oath of office according the Constitution of these United States is as follows:
I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Please note that OFFICE of the President of the United States is clearly delineated in the oath. Yet the President isn’t an officer? GTFOH. Why in the world are we even having to perform this word by word analysis?!! I’m not saying this because I believe we have to pull out all the stops to prevent this man from ever holding office again. This has been a point of frustration for me for a very long time when it comes to our justice system. I appreciate the notions of due process and innocent until proven guilty.
However the gamesmanship of our justice system is dishonorable and foul.
Section 3 of the 14th Amendment was added after the Civil War. The spirit of the law is beyond clear. The spirit of most of our laws (both just and unjust laws) are rather clear. Yes the framers and our legislators are very intentional and precise with their choice of words. However, they aren’t precise just for the sake of being precise. While many of the senators in the 39th Congress that passed the 14th Amendment were lawyers, they weren’t merely being lawyerly. They were deliberate with the text to best express the spirit of the law not to befuddle the average American and hold them captive to its letter.
For those that believe the Constitution is a definitive document, my question is why are we allowed to amend it? The Constitution was originally ratified in 1790 without the Bill of Rights. The Bill of Rights (the first 10 Amendments) were added and ratified in 1791. Amendments 11-27 were added between 1795 and 1992. Over 200 years worth of amendments and we are supposed to be restrained to the letter, when we can add letters?? Make it make sense!!
To be fair, there are valid questions related to section 3 of the 14th Amendment. For example, does someone have to be convicted of an insurrection charge in order to meet the disqualification criteria? What are the bounds of “aid and comfort?” Is there legal code that addresses “aid and comfort?” Who has the authority to remove a candidate from the ballot? I have no problem with valid questions. Defense attorneys would be derelict in their duty if they did not raise valid questions.
However sowing confusion TO CONJURE reasonable doubt is intellectually dishonest and a form a gas lighting, in my opinion. This out of balance practice does not protect the innocent. It only provides the guilty more ways to evade accountability and justice.
And officers of the court, namely attorneys and judges, are complicit in enabling those truly guilty to roam free. I’m reminded of a statement made by comedian, Chris Rock, in the wake of the senseless police killing of Michael Brown in Ferguson, Missouri almost 10 years ago. The prosecutor was taking his sweet time in deciding whether or not to bring charges against the police officer. Just about everyone anticipated that charges would not be brought based on the history of the prosecutor. But the prosecutor’s delay in making the decision was unsettling. Comedians are often the truth teller’s in society and Chris Rock said it perfectly.
It doesn’t take 100 days to decide if murder is a crime. It takes 100 days to figure out how to tell people it isn’t.
To close out this lengthy rant, I’d like to point out the fact that more than half of the 50 states have raised formal challenges to this particular individual’s qualifications to be on the ballot. It is beyond clear that this person violated the spirit of the law. To expect the Constitution, written by imperfect, non-omniscient human beings with imperfect language, (800-1000 words/definitions are added to English language dictionaries annually) to be exact for every possible scenario, is insane to me. Again if that were the case, there would be no need to amend the Constitution nor would there be a need for a judicial system.
Yet there is a need for a judicial system and the highest court of the land has some decisions to make. I expect that the court will not uphold the Colorado ruling. Not because of the whimsy arguments in the appeal but because this individual has not been convicted yet of insurrection or insurrection related charges. Should he be convicted as I expect him to be and the Court revisits the case, I expect they would deem him disqualified and states would then execute their election laws accordingly. To me this is a balanced approach.
Unfortunately because our justice system has been out of balance for so long with titillating intellectual wordsmithing exercises, riddle wizardry, fantasia, perception molding coupled with superficial journalism, this imbalanced approach would be spun as a valid win for this individual and leave the door wide open for him to ascend to power again. While this may sound like I’m resigned to this foolishness, my hope and expectation is that we, the people, will bring the necessary balance that our system of checks and balances refuses to do. We rejected him in 2020 before experiencing the horrific events of January 6th. I cannot fathom why we would choose to reelect him when nothing redeeming about him as surfaced since then. I expect the 2024 result to be even more resounding against him than it was in 2020, as it should be.
Onward to Harmonious Balance,
Johanna
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