I am very nervous, but also very excited that I might have found, in our very own Constitution, something which offers hope for a scenario many of us have played in our minds almost every day for nearly a year. In that scenario we wake up and the last year has been no more than a nightmare.
Have searched in diaries and, from what I can tell, no one else has written about this particular subject. (Sorry if I somehow missed it!) So I look forward to sharing it with you, to see what you think.
Before I continue, let me say I am not an attorney. I do, however, happen to believe that our Constitution is the People’s document. I believe it is not meant to be understood only by legal minds. In fact, I believe it was written specifically for We the People to understand. It is, after all, a set of instructions, in a manner of speaking, for running a government of, by and for We the People.
Because I am not an attorney, I hope an attorney, or two, or three, along with all interested DK readers, will feel free to play devil’s advocate for the ideas and conclusions in this diary. The individuals who control our government at the moment will not like my ideas or conclusions, and they will challenge them. If anyone finds a problem with my reasoning in this diary, or finds some blatant problem I have overlooked, or mistake I have made, I hope you will bring it out into the open, so we can address it, so we can be prepared for those challenges. Because I feel good about this. Let’s dive into this. Let’s make sure we’re ready for the opposition.
I think we can all agree it is an almost sacred trust among Americans that those who reach the highest offices in our nation’s government will be honorable men and women. We take it for granted they will have the best interests of the nation at heart, and the best interests of each and every person who lives within the nation.
But what if we discover we have placed, into a high office of the land, an individual who is neither honorable nor interested in the good of the nation or of We the People? Most of us believe our only relief is to prove such an individual clinically insane; or to claim he has committed a high crime or misdemeanor, and then to prove said crime or misdemeanor beyond a doubt, beyond political intrigue. Barring that, we believe we have to wait, to try to vote him out of office after he has had years to do whatever it is he intends, and unfortunately seems to have almost unbridled power, to do.
Back around the time of the Civil War, a group of very wise men might have realized Americans, including the framers of the Constitution, were a bit too trusting in projecting honor onto all who reach the highest offices in the land. Faced with the realization that there were people in high offices who would go so far as to rip apart the entire Union in order to safeguard their own ability to possess human beings, certain wise men might have decided it would be a good idea to make the process for removing those in power more reasonable.
What if they proposed an amendment ensuring all those in power must, at the very least, uphold their sacred oath to protect our Constitution?
What if that amendment passed, and is, at this very moment, a part of our Constitution? What if the Constitution not only contains the means of protecting itself, but also of delivering We the People from those in power who have shown their true colors by betraying their oath to protect the very blueprint of our democracy?
What if we can awaken from our nightmare?
Here is Section Three of the Fourteenth 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 and comfort to the enemies thereof.
But Congress may by a vote of two-thirds of each House, remove such disability.
If you have never seen this passage, you are not alone. This little passage is one of the least-known in the entire Constitution. I cannot help but believe, however, that anyone who has graduated from law school must surely know of its existence. I cannot help but believe many politicians know of its existence as well. But I have never heard a politician mention it. That is not to say no politician has ever mentioned it, just that I have never heard one do so. Have you?
If you skimmed over the words in the passage, you are also not alone. At the risk of sounding melodramatic, I think the repetitive language is something of a protective camouflage, guaranteed to make most readers skim over it. If you look up the Fourteenth Amendment in your pocket Constitution, take note of the actual location of Section Three. It is neither at the beginning nor the end, nor even in the middle. And, it has nothing to do with the rest of the amendment! I think the placement, too, hidden in plain sight, might very well be intentional protective camouflage.
If you read the passage closely, you realize that it says once an office-holder, elected or appointed, federal or state, takes an oath to protect the Constitution, and then attacks the Constitution, he or she simply cannot be an office-holder.
Perhaps the wise men who drafted the Fourteenth Amendment made Section Three as invisible as possible, so as not to draw undue attention to it and cause us to attempt to use it before we desperately needed to do so, and before the vast majority of We the People, and probably Congress as well, would recognize it for the boon it is. Perhaps they camouflaged it so those in power would relax and believe we would never notice it. Perhaps this is one reason our Constitution is hardly taught at all in our schools, and why, when a student asks a teacher a question about the Constitution, she might be told only attorneys and politicians need to worry about that.
Or maybe I am being melodramatic. But for whatever reason, Section Three is an overlooked passage in a Constitution which can easily be read in one sitting.
I have asked others, both attorneys and laypersons, about this passage. One attorney told me, dismissively, “It doesn’t mean what it says.” A second said, “It only refers to those who fought for the South in the Civil War.”
Those attorneys were simply mistaken. First, of course the passage means what it says. Second, although the passage is part of an amendment written just after the Civil War, there is nothing in its wording which limits it to that period of time. It is a fully-functioning, legitimate part of the Constitution, just like the rest of the Fourteenth Amendment.
Another attorney reminded me of Section 4 of Article II, which states “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” That meant, he said, removing anyone for failure to uphold a sacred oath was not possible.
My response is that Section Three of the Fourteenth Amendment is, clearly, an amendment. Among the purposes of an amendment is to rectify parts of the original Constitution, or to make alterations commensurate with changing times, or to add rights, as we did with the first ten amendments. Section Three of the Fourteenth Amendment fulfills at least one of these criteria. It adds an appropriate, logical means for removing elected and appointed officials from office, a means we did not realize we would need until nearly a hundred years into our nation’s history.
Among laypersons whom I have asked, several were concerned that Section Three might refer only to those who have taken up arms against the nation. “You can’t commit insurrection or rebellion against a document,” they said.
But the entire passage refers to the Constitution, the actual document itself. The oath referenced is an oath to protect the document, not the nation. And insurrection and rebellion are surely committed against a document when its very spirit is undermined, when its mandates are challenged or ignored altogether by those who have sworn an oath to protect that document.
Another layperson said that if politicians who defied the Constitution were all removed from power, there would be no politicians left. This is, hopefully, not true, but by making such a statement he seemed to suggest we would be better off with a full complement of politicians who care nothing for the Constitution than with a skeleton crew of honorable office holders. He seemed to suggest we have no right to weed out dishonorable politicians and replace them with those who take sacred vows seriously.
But Section Three of the Fourteenth Amendment says we do have that right. The little passage says anyone who takes an oath to support the Constitution and fails to do so cannot “. . . hold any office, civil or military, under the United States, or under any State . . .”
The only way for such a politician to be allowed to maintain his office, in fact, under the rules of Section Three, is for a two-thirds majority of Congress to decide he deserves to stay, and vote to keep him. If Congress does not do this, the offending employee is simply unemployed, by his own choice to commit a breach of contract. He has, essentially, renounced his position. It goes without saying that a pardon in this case would be ineffective, since his breach of contract and the subsequent renunciation of his position which followed were voluntary actions on his part.
And his renunciation is retroactive, back to the first time he failed to protect the Constitution after taking the oath to defend it, back to the moment he put himself in the category of those who cannot be office holders. So any power to pardon would have been renounced along with the position. Also, and this is interesting, any political actions he might have taken after he renounced his position would not be valid.
He would have renounced his position the moment, after taking the oath, that he abridged the freedom of the press, for example, maybe by doing something as venal as insisting his own press secretary tell a lie. He would no longer be an office holder from the moment, let’s say, he threatened and intimidated members of the press, or called them enemies of the people, or decried the fact that the press is free to write what it wants, or threatened to put broadcast licenses in jeopardy.
Suppose he defied the emoluments clause after taking the oath, or gave classified information to members of a hostile government, or advocated having sports figures fired from their jobs for exercising their First Amendment rights, or made the decision to discriminate against all transgender individuals by refusing them the ability to join, or remain members of, the armed services of this nation. Suppose after taking his oath he stated, on camera, his intention to strengthen the policy of asset forfeiture, which the bill’s own drafters boasted was an end run around the Constitution, and which is possibly the greatest affront to the very spirit of the Constitution which was ever made law.
Any one of those actions can be defined as insurrection or rebellion against the Constitution, because this is the way a document is attacked by those in positions of power, not, as I’m sure some will attempt to argue, with guns and soldiers, but with hostility to its spirit, denial of its truths. Those politicians, elected or appointed, federal or state level, who have committed such travesties against the Constitution, according to my understanding of Section Three of the Fourteenth Amendment, should, like any employee who is in breach of contract, be escorted out of their offices by security guards or the Secret Service. Their keys should be taken from them. They should receive help carrying their belongings to their cars. They should be watched closely as they drive off the grounds of whatever house of government they have defiled. The gates should be locked behind them.
This is how easy it should be for us to rid ourselves of those who attack our Constitution. And Section Three of the Fourteenth Amendment makes it just that easy. It says no one who does such a thing after taking an oath to protect the Constitution can “be” an office-holder within the halls of government. Period.
I cannot imagine how, or why, anyone of either political party would argue with this. What is more important than protecting the Constitution? Why else did the framers require office-holders to take an oath to do so? Why would anyone trust, or defend any politician who fails to honor such an oath? Why would anyone wish to give such a politician any power whatever over our nation and its people? Why would anyone not realize we are better off without such a politician, no matter what sort of agenda or policies he claims to embrace, no matter what other oaths or promises he vows to keep?
But people will argue. Some will say following the instructions laid out in Section Three of the Fourteenth Amendment is tantamount to attempting to overthrow the government.
Quite the contrary.
Politicians are not the government. We the People are the government, and the Constitution is the government. When a politician takes an oath to protect the Constitution, and instead commits insurrection and rebellion against it in words and deeds, his actions come closer to the definition of attempting to overthrow the government.
And speaking for myself, I, too, took an oath to protect and defend the Constitution, against all enemies, foreign and domestic. Many of you reading this diary took such an oath as well. We have a duty to uphold our oath. I think Section Three of the Fourteenth Amendment gives us the tools we need to do so.
What do you think?