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Senate to Bar Insurrectionists under 14th Amendment Section 3

Beware the law of unintended consequences. One only has think of the developments since the Supreme Court nullified Roe v. Wade (The Law of Unintended Consequences: From Abortion to Voter Suppression, December 5, 2021). It is highly unlikely that the Supreme Court anticipated all the political ramifications which have occurred since its decision yet alone the medical conundrums it has raised as doctors wrestle with what is permissible. Certainly the wellbeing of the mother did not factor into the judicial calculations at all.

Now here we are with another momentous decision. The decision that Donald Trump would not be removed from the ballot probably came as a surprise to no one.

Obviously it was a disappointment to the roughly 30 historians who filed amici curiae on behalf of Colorado. Those briefs were reviewed in three previous blogs.

Historians Tackle the 14th Amendment Section 3 and Fail: How Come?

Historians Tackle 14th Amendment Section and Fail (2): Akhil Rees Amar and Vikram David Amar

Historians Tackle 14th Amendment Section 3 and Fail (3 of 3): Jill Lepore, David Blight, Drew Gilpin Faust, and John Fabian Witt

In my previous blogs, I came to the consistent opinion applied to all three briefs. These historians were ignoring the fact that while the Second Civil War was over and had been won by the Union, the Third Civil War continues to be fought. At this point in time, the outcome remains uncertain. Skirmishes are being fought all over the place from the MAGA defeat of a Real Republican in the Ohio Senate primary, to the possible defection of a Real Republican Senator in Alaska, to the resignations of Real Republicans from the House … to say nothing of the ongoing legal battles against voter suppression and going forward.

The Supreme Court Judges are aware of the swirling chaos from the Third Civil War even if it chooses not to use that term. The closest it came in the decision about the application of the 14th Amendment Section 3 now was rendered by Justice Amy Coney Barrett. She revealed the Court’s actual motives in her separate concurrence:

In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.

Put simply, the Court allowed Trump to stay on the ballot in order to avoid an outcome that would raise the “national temperature.”

However the contortions to avoid wading into the current Civil War too deeply, the Court provided opportunities for Congress and/or the states should they desire to pursue them.


Some of the most prominent legal minds, not professional historians, have succumbed to the same shortfalls in judgment that the historians did. In op-ed posted to The Atlantic “A Requiem for Section 3 of the Fourteenth Amendment” (March 14, 2024), they made their displeasure clear right at the start:

The Supreme Court of the United States did a grave disservice to both the Constitution and nation in Trump v. Anderson.

In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plan text and its original meaning.   

Hard to mistake where they stand on the issue.

They mention other ways in which a person can be disqualified from being a candidate without any congressional or legal action such as “age, residence, natural-born citizenship.” But people have little choice about when they are born, where they are born, and to whom they are born. They have quite a lot of choice over whether to instigate, participate in, or condone an insurrection. There is something different about Amendment 14 Section 3.

After some more acrimonious words about the ruling of the Supreme Court, they concluded with the strong pronouncement that:

Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for American democracy, The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted.   

Not so fast. Let’s look at what the Supreme Court has allowed without necessarily meaning to.


The Court ruled that state courts, like Colorado, did not have the right to apply Amendment 14 Section 3 to the Office of the President, a federal position. That leaves open the question of applying it on the state level.

States may disqualify persons from holding or attempting to hold state office. But states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the presidency.

After all, despite all the attention the historians gave to Jefferson Davis, based on numbers it was all the people in the Confederate Army who were the numerous people against whom the amendment was applied … and who most often sought a pardoned under the stipulations build into the law.

In theory, therefore, states could ban people from state offices under the Amendment. This means election deniers at the state level running for state positions like Governor, Secretary of States, or legislator could be restrained from running under state law… and current office holders could be removed. I am not suggesting that Colorado or any other state would ban MAGA’s from holding state office or running for state office. I am suggesting that the Supreme Court without meaning to has provided a legal justification for so doing. While I do not foresee any state availing themselves of this power, henceforth there remains the possibility that a state could remove all insurrectionist supporters from office and/or remove them from the ballot.


The office of the Presidency is not the only potential office under dispute. Presumably based on the Supreme Court Ruling, the House and the Senate also have the right to apply the 14th Amendment Section 3 within their own chambers. Just as each state could only decide for itself and both chambers need to decide for the presidency, each chamber could decide for itself as to the applicability within its own chamber.

This means the House and the Senate each have the right to decide if someone is in violation of the 14th Amendment Section 3. The Senate could effective immediately and for the 2024 elections establish rules of disqualification. An individual did not need to physically participate in the January 6, 2021, actions but merely to have helped plan them or to have supported not holding people responsible, calling them “hostages,” or to campaign as an election denier. Again, I do not anticipate either House taking this route. I simply state that the Court has given the two chambers the legal means to remove MAGAs from office should either one or both desire to do so.

The true test will come after the presidential election. Right now based on the polls, MAGAs have every right to expected a MAGA victory in the Electoral College, a MAGA victory in the presidential popular vote, a MAGA controlled Senate (unless too many Real Republicans go independent) and a MAGA loss in the House. For months to come, they will be told that if the MAGA candidate is not returned to the White House, then it will be because the election has been rigged. I repeat, FOR MONTHS MAGAS WILL BE TOLD THAT UNLESS THEY WIN, THE ELECTION HAS BEEN RIGGED. So if the MAGA presidential candidate prevails, then all is quiet on the Capitol steps. However if the MAGAs lose, then the Fourteenth Amendment Section 3 will be back in business.

Only time will tell.

Day 3: Countdown Continues to Clear and Present Danger in 2024

Dan Crenshaw the Future of the GOP? (M. Scott Mahaskey for Politico Magazines. March 2, 2019)

The countdown continues to a clear and present danger in 2024. The third session of the House Select Committee introduced a new element into the proceedings. So far the bulk of the effort has been directed to establishing a criminal case for the Department of Justice to pursue against the insurrectionists. Part of that effort includes informing the American people of the truth of what happened. This way the pending investigation and indictments will not simply be a “witch hunt” per Foxhub but a legitimate search for justice.

While all that is well and good, it also is looking backward — an attempt to reconstruct the past. It is critical to keep our eye on the future. 2024 will not simply be a repeat of 2020. It will be an enhanced version of that failed insurrection. The Trumpicans have learned from the failure and now are preparing to plug those holes to ensure success. In this blog, I do not wish to recapitulate the ongoing efforts in voter suppression, creation of the army of Trump Goons in selected voting districts, or the election of secretaries of state and/or governors who will prevent Joe Biden from winning their states in 2024 regardless of the actual votes. Instead, I wish to focus on the consequences of that effort no matter how it actually plays out in the vote results.


Sometimes a judge can be a prophet. No, I am not referring to the judges from the Book of Judges but to Michael Luttig, a retired federal appeals court judge and highly respected conservative in legal circles who testified on the third day of hearings. However, he is not well-known to the general public yet alone to the Trumpicans who support the BIG LIE. As a result, the impact of his testimony on them probably is minimal. The impact of his testimony on the DOJ is likely to be more substantial. He augments the words of United States District Judge David Carter on John Eastman’s efforts as “a coup in search of a legal theory”

In his testimony, Luttig asserted that the actions of January 6, 2021, brought the country to the precipice of a constitutional crisis that could have ended the existence of the constitutional republic just before the 250th anniversary of the country’s declaration. In his words, the actions were “tantamount to a revolution.” The rule of law was under direct attack. If the Vice President had succumbed to the pressure from the President and successfully thwarted the peaceful transfer of power, it would have been “the first constitutional crisis since the founding of the Republic.” When I first blogged about political thrillers in movies and books from the 1960s on January 3, 2021 (Seven Days in January: This Time It Is Not a Movie), it never occurred to me that we would be living one in real world to the extent that we are.

Nor that there would be a sequel. Prophet Luttig warned us that the threat to the constitutional Republic remains alive and well, continuing to foment trouble. For the most part we have moved on past the silly scenarios of Biden stepping down and being replaced now or in the immediate future by the “rightful President.”  Of course, no sooner had these words been written than I learned that the Republican Party of Texas at its state convention resolved that:

We reject the certified results of the 2020 Presidential election, and we hold that acting President Joseph Robinette Biden Jr. was not legitimately elected by the people of the United States. We strongly urge all Republicans to work to ensure election integrity and to show up to vote in November of 2022, bring your friends and family, volunteer for your local Republicans, and overwhelm any possible fraud.

So at least the gaze is shifting politically to the upcoming elections.


Prophet Luttig’s words are a call to action in the present. The danger exists now and it is building towards an explosion in 2024. The wheels are already set in motion for the chaos he alluded to. It is not a question of if it will happen, but what will be done to prepare for it when it does. What does “it” mean?

The “it” was clearly enunciated by White House counsel Eric Herschmann in an oft-played tape of his testimony about a telephone call will coup-designer Eastman about his plan to have the Vice President rig the electoral count in plain sight to obtain the results Trump wanted:

You’re going to cause riots in the streets.

To which Eastman blithely replied:

There’s been violence in the history of our country to protect the democracy or protect the Republic.

This exchange about what would have happened on January 6, 2021, if Pence had weakened foretells what will happen on January 6, 2025. Eastman has legitimated the right of Biden supporters to take to the street to protect democracy and the republic from a Trump victory. It is unlikely that Eastman intended to do this. Naturally, he meant only the right people have the right riot in the street to challenge an injustice (January 6, 2021) and not that the wrong people (BLM, ANTIFA, Team Normal Americans) have the right to do so if Trump is declared the winner. That subtlety may be lost on people who are opposed to letting the Hitman return to the White House under any circumstances.

In the meantime, we have been reminded vividly of the violence that is in store for America following the 2024 presidential election.

Illinois Republican Rep. Adam Kinzinger said he received a letter that threatened to execute him, his wife and their newborn. “There is violence in the future, I’m going to tell you,” he said on ABC “This Week.”

The next day, Eric Greitens, one of the “man’s man” beloved by Bone-spur Boy, running for the Republican Senate nomination in Missouri, released a new video saying:

I’m Eric Greitens, Navy SEAL, and today we’re going RINO hunting. Join the MAGA crew. Get a RINO hunting permit. There’s no bagging limit, no tagging limit and it doesn’t expire until we save our country.

This is the political professional wrestling arena trash talk Trumpicans love. As in any cult, it bespeaks the effort to cleanse the cult itself even before attacking others. It also legitimates the effort to go Trumpican hunting in the event Democrats stop bringing a plastic spoon to a gun fight and expect to win.


In 1824, there were two claimants to the Presidency – John Quincy Adams and Andrew Jackson. Of the five sectional candidates that year, these two emerged in the leading positions. The first party system of Federalists and Republicans had dissolved and the second party system of Whigs and Democrats was being born. While Jackson claimed he had been cheated out of victory that was rightfully his (a questionable claim) due to a backroom deal between Adams and Henry Clay, he accepted the results and lived to fight another day in the 1828 election which he won.

For the bicentennial year in 2024 of that presidential election, we already know that there will be no agreement on the results. No matter what, there will be no peaceful transfer of power from Joe Biden to the Hitman; no matter what there will be no acceptance by the Hitman of another four years in office for the worst candidate ever.

Choices will have to be made.

Will California or South Carolina be the first to secede?
Will the military support the president in the White House or the one in Mar-a-lago?
Who will the world recognize as the American president?
Who will have the nuclear football?
What happens after both are sworn in on January 20, 2025?

The odds on this division being resolved peacefully are slim. More likely are armed clashes in the nation’s capital and in scattered locations throughout the country. The situation will be scary…. Unless we recognize now that the divorce is our future and start to plan for it to minimize the violence.