Saving Democracy from Itself?

During the reign of the 45th president of the U.S., I often contemplated who would have made a better chief executive. One of the many candidates was my cat.

"That's ridiculous..." you say, "a cat can't be president." 

 

Really? Well, here's what Article II, Section I, Clause 5 of the U.S. Constitution has to say on the matter:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Notice the restrictions apply only to persons. It says nothing about similar restrictions applying to cats, dogs or any other animal, vegetable or mineral. 

In other words, nowhere in the Constitution does it explicitly stipulate that the President of the United States has to be a human being.

So why can't my cat Ziggy serve as president? And if the logic of many Americans holds true, if I were able to convince a critical mass of my fellow citizens that Ziggy would indeed be a fine president and got her onto the ballot, wouldn't it be considered "election interference" if people sued to get her off the ballot, claiming she was ineligible to run for president due to her catness?

Yes, that is ridiculous, but not a whole lot more ridiculous that a convicted felon serving time in prison being elected president, something the Constitution also doesn't mention. I guess the Founding Fathers must have assumed Americans would be smart enough to not consider voting for pets or incarcerated criminals for president, so they didn't bother with those stipulations. 

A cat being president is also not much more far-fetched than a president who took an oath to support the Constitution, blatantly violating that oath while in office, then expecting to be eligible to be president again. The U.S. Constitution does say something about that:

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.

If you've been paying attention to the news lately, this text, Section Three of the Fourteenth Amendment to the Constitution, (here with my added emphasis) should be familiar. 

If you haven't been paying attention, calls from a wide range of folks representing different ideologies and political parties, have brought up that Article Three of the Fourteenth Amendment, also referred to as a "Disqualification Clause", clearly states that because of his actions on January 6th, 2021, Donald Trump is ineligible to be president again, short of two thirds of both chambers of Congress voting to reinstate his eligibility, an unlikely scenario.

As you can imagine, like the four criminal indictments encompassing 91 felony counts of wrongdoing that preceded the calls to declare him ineligible for office, the exPOTUS has dismissed the proposition as nothing more than an act of "election interference." Here's a quote from one of his campaign spokespeople:

The people who are pursuing this absurd conspiracy theory and political attack on President Trump are stretching the law beyond recognition much like the political prosecutors in New York, Georgia, and D.C.

I'm not sure what any of this has to do with a "conspiracy theory" or even a "political attack". Section Three is unequivocal and at least according to my non-legal mind, it is not stretching the law one bit when it comes to applying it to Trump who.... 

• took an oath on January 20, 2017 to preserve. protect and defend the Constitution of the United States then...
• following his reelection loss, took extraordinary measures to remain in power, all the while misleading the American public (those who would listen) by claiming without any evidence that the election was a fraud, then...
• as a last-ditch effort to remain in office, summoned thousands of people who believed his lie to the U.S. Capitol to interfere with the formal certification of his opponent, and petitioned his Vice President to violate his proscribed constitutional duty to officially confirm the results of the election, then... 
• did nothing when many of his supporter/rioters stormed the Capitol, even after they chanted to hang the vice president.

None of these acts are disputed. While the facts of the case could be challenged in a court of law as worthy of constituting criminal incitement of an insurrection, the majority of both chambers of Congress in bi-partisan votes agreed that Donald Trump did in fact, incite an insurrection. 

Regardless of one's take on the matter, there can be no doubt that without the president's lie of a stolen election and his call to fight it in his speech earlier that day, the dreadful events of January 6, 2021 would never have happened. The kicker is this: once the protest got out of hand and the Capitol was attacked and vandalized leaving dozens of Capitol Police officers and others severely injured, some of those injuries resulting in death, despite having the power to stop the violence and bloodshed by a simple tweet telling his supporter/rioters to cease and desist participating in an uprising against the government, he chose to remain silent and enabled the occupation of our Capitol to go on for hours.

If that does not constitute "engaging in an insurrection" I don't know what does.

Now let's see: taking an oath to defend the constitution, then engaging in an insurrection, put the two together and what do you have? According to our Constitution, ineligibility to hold office. So simple, a first grader could understand it. Heck even Ziggy the cat who is not particularly bright, even by feline standards, might understand it.

Donald Trump and his supporters don't or won't understand it.

Of course, the question arises if declaring Trump ineligible is worth pursuing. 

 

Author, staff writer for the Atlantic, and former Republican speechwriter (but no fan of Trump by a longshot), David Frum, argues it is not. In his August 29th article for the publication titled, The Fourteenth Amendment Fallacy: The Constitution won’t disqualify Trump from running. The only real-world way of stopping him is through the ballot box., Frum argues that the move to disqualify the former president is little more than a stunt based upon a heretofore obscure section of the Constitution intended specifically to prevent Confederate politicians from holding office in the post-Civil War South. Because of that, Frum claims that Section Three has little bearing today. Much better he contends, that the issue of Trump be settled at the polls. 

The real problem in Frum's mind are the repercussions that would result if the move to disqualify Trump would succeed. Would his supporters Frum asks, reject the results of a general election where their candidate lost because his name was left off the ballots in select states? *

 

Considering Trump supporters have already rejected the results of the 2020 election, probably the most scrutinized election in American history, the potential 2024 rejection Frum suggests is a forgone conclusion.

Frum goes on:

the use of the section to debar candidates would not stop at Trump. It would become a dangerously convenient tool of partisan politics...

If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as “aid and comfort” to enemies of the United States.

Well guess what?

 

The Republicans have been hunting for Democrats to disqualify for years.

 

Here are just some recent examples:

• As we speak there is a movement underway in the House of Representatives to impeach Joe Biden. On what grounds you ask? "Don't worry, we'll think of something" is the general response. 
• Trumplicans in Georgia are seeking to impeach Fulton Country District Attorney Fani Willis for doing her job in her role in the prosecution of Donald Trump and 18 co-defendants in their attempts to defraud that state's election process.
• There's something even more sinister going on up in Wisconsin where newly elected State Supreme Court Justice Janet Protasiewicz is threatened by impeachment by the Republican legislature because she refuses to recuse herself from a gerrymandering case that benefits those same Republicans. Their grounds are that she called the newly Republican drawn legislative map, "rigged" in public during her election, admittedly not wise but certainly not grounds for impeachment, according to precedent in that state. Silencing her, which is a distinct possibility, will allow them to keep their map that has more twists and turns than Chubby Checker in a blender, (sorry, I couldn't resist), thereby ensuring minority rule in the state for at least another decade.

The reality is this: if the "disqualification clause" is invoked, nothing will change, it would only be one more weapon in the Republicans' toolbox to hold on to power by dismantling our democracy. 

 

The other day, Frum was featured in an NPR interview with Kim Whele, a constitutional scholar from the University of Baltimore. Whele is of the opinion that it's worth a shot to attempt to disqualify Trump:

...there's a faith in the electoral process that perhaps has failed us in this moment... the framers of the Constitution did include Section 3... I don't have confidence that it's worth the gamble to see if the process is going to work in the old-fashioned way, in getting people out to vote and having, in this instance, the front-runner with 60% of the Republican voter base... (and) hope at the edge of our seats that democracy is going to prevail and not put someone like (Trump) in office. Because in my view, if that happens, it's over.

I don't quite see eye-to-eye with Whele either, as she appears to be saying here that democracy is great when it yields acceptable results, but we need to shift course when it doesn't. In other words: we need to save democracy from itself.

 

I think she's missing a huge point which is this: democracy is never absolute; it is governed by rules. If the majority of the American people voted to bring back slavery, that would be a non-starter because of the Thirteenth Amendment. 

 

As we saw above, the Constitution, while it doesn't explicitly exclude cats from serving as president, (maybe we'll have to do something about that someday), does restrict the office to people over 35 and naturally born U.S. citizens. Which means that Congressman Maxwell Frost, currently 26 years old, and former Governor Arnold Schwarzenegger, born in Austria to Austrians, would both be ineligible to serve as president, for now at least in Frost's case. And the Twenty-Second Amendment disqualifies Bill Clinton, George W. Bush, and Barack Obama from serving third terms. Are any of those disqualifications, examples of unjust election interference or threats to our democracy? Certainly not, they're just the rules. 

It should not matter in the slightest that Article Three of the Fourteenth Amendment has not been used to date to disqualify someone from the presidency. It is as much a part of the Constitution as any other. It's not a new-fangled strategy to get rid of someone we don't like, but rather a very sensible rule proscribed by the Constitution 155 years ago that keeps elected officials, including presidents, from abusing their power by violating the will of the people and attempting to overthrow the government.     

What a novel idea.

CODA

* Here Frum is assuming the move to disqualify Trump would happen after the Republican nomination, leaving Republican voters out in the cold with a candidate who would ultimately be declared ineligible to serve. I agree that would be unreasonable. However, the Republican Convention is a little less than a year away and Republican voters have a large field of candidates to choose from who are not criminal defendants that engaged in an insurrection to overthrow the government. I'd say at least five of them have as good a chance to win the 2024 general election as Donald Trump, which is to say, not a very good chance. And there is one Republican candidate who in my book at least, has a very good chance to win the general election in 2024. You can read my previous post to see which one. 

I'd say it is incumbent upon those who are of the opinion that Section Three should be invoked, and can do something about it, to act quickly and let the matter be decided by the Supreme Court before the nomination process begins. If the Court agrees that Trump is ineligible to serve as president again, then Republicans will only have themselves to blame if they choose the one candidate of the bunch who cannot serve. 

If the Court does not agree, all we can do then is rely on the wisdom and common sense of the American electorate. 

 

Because without either of those, one day we might end up with this: