Politics would be a lot simpler if one side could prevent the other from running for office.
The left believes that Section 3 of the 14th Amendment is a readily available tool to do just that and has been trying to use it get Republican members of Congress knocked off the ballot.
This effort isn’t going to succeed, nor should it. That progressive lawyers and activists are even making the attempt is a sign of their profound disregard for the democracy they say they want to rescue.
In a free society, there’s no guarantee that people elected to office will be public-spirited or responsible. But there’s no short-circuit to keep voters from making poor choices and it’s a disservice to the Constitution to pretend otherwise.
The 14th Amendment was passed and ratified after the Civil War. The point of Section 3 was to keep Confederates from returning to elected office and to exclude future rebels, too.
It prohibits anyone from holding office 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.”
Consider the case of Marjorie Taylor Greene, the bomb-throwing Georgia congresswoman. Outrageously, she recently had to testify in a proceeding to determine whether she ran afoul Section 3 and therefore should be struck from the ballot.
Even if you believe that Jan. 6 was an insurrection, Greene didn’t “engage” in it. She texted then-White House chief of staff Mark Meadows that afternoon that he should “tell the President to calm people” and that “this isn’t the way to solve anything.” She tweeted herself: “Be safe, Be smart. Stay peaceful. Obey the laws. This is not a time for violence.”
On the other hand, she also texted Meadows: “Mark we don’t think these attackers are our people. We think they are antifa. Dressed like Trump supporters.”
In Civil War terms, this is a little like an alleged insurrectionist sending a message to P.G.T. Beauregard saying that the bombardment of Fort Sumter is a really bad idea and should end immediately. And then adding later, “By the way, general, I think the firing on the fort might have been an inside Union job.”
Did Greene provide “aid or comfort” to our “enemies”? As my National Review colleague Dan McLaughlin points out, this language is drawn from the treason clause of the Constitution and “enemies” is the operative word. It refers to foreign enemies waging war against the United States or domestic enemies doing the same as part of a breakaway republic like that of the Confederacy.
Citing the work of Myles Lynch in an extensive law review article, McLaughlin points to a few post-Civil War cases that shed light on how the House of Representatives considered these issues.
Prior to the outbreak of the war, Lewis McKenzie issued fire-breathing statements of Southern resolve from the Virginia House of Delegates. He said “every consideration of honor and interest” demanded that Virginia secede should it come to that and voted for the funding of military materiel. Still, the House seated him work because these sentiments and votes came prior to the onset of the rebellion.
On the other hand, Congress excluded John D. Young from office. He had made various pro-Confederate statements, but also had given Confederate forces information that led to them taking Union troops prisoner — a concrete act of assistance.
None of this is to deny that Greene said inflammatory and stupid things in the run-up to Jan. 6, and afterward — that’s her natural mode. But it’s up to voters in her district to decide her fate in a democratic republic worthy of the name.