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THROWING OUT THE CONSTITUTION – DONALD TRUMP VS. THE 14TH AMENDMENT
– ALL OF IT  
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Clarence Lusane
February 13, 2024
TomDispatch [[link removed]]

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_ Much attention has been focused on the "insurrection" clause
(Section 3) and whether Trump should be allowed to hold office, given
his role in the Jan 6th attempted insurrection, his actions are also
at odds with other key provisions of the amendment _

Former President Donald Trump holds campaign rally at the Rochester
Opera House in Rochester, New Hampshire, on Sunday, January 21, 2024.
New Hampshire's first-in-the-nation primary occurred two days later.,
Photo credit: Liam Enea / Creative Commons Attribution-Share Alike 2.0


 

When the Civil War ended in 1865, the 76-year-old Constitution needed
an upgrading and those leading the country did indeed dramatically
transform it with the passage of the 13th, 14th, and 15th Amendments,
known collectively as the Reconstruction Era amendments. The 13th
(1865) abolished slavery, while the 15th (1870) gave voting rights to
newly freed Black men.

However, it was the 14th Amendment
[[link removed].],
first drafted in 1866 and ratified in 1868, that would prove the most
far-reaching and that today sits all too squarely between Donald Trump
and his white nationalist and authoritarian dreams. While much
attention has been rightfully focused on its “insurrection” clause
(Section 3) and whether, thanks to it, Trump should be allowed to hold
office, given his role in the January 6th attempted insurrection at
the U.S. Capitol, his actions are also at odds with other key
provisions of that amendment.

TRUMP’S CONSTITUTIONAL INDISCRETIONS

It hardly needs to be said that Donald Trump is no constitutional
scholar. At this point, though, there can be little doubt that his
instincts are distinctly focused on some version of autocratic rule
and white male privilege. No surprise then that, in his adult life,
including as president, he’s staked out positions and advocated
policies that distinctly conflict with the letter of, and the tone of,
the 14th Amendment.

Mind you, he’s brazenly violated other parts of the Constitution as
well, including the “emoluments” clause of Article 1, Section 6,
and the “appropriations” clause of Article 1, Section 9. The
foreign emolument section states that, without congressional assent,
neither the president nor other office holders can “accept of any
present, Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State.” Yet, as the Democrats on the House
Oversight Committee documented, “Trump’s businesses received at
least $7.8 million in payments from foreign governments and
government-backed entities from 20 countries,” in itself adding up
to a set of gifts (or do I mean grifts?) of historic proportions.
Moreover, that figure is undoubtedly a significant underestimate of
what he actually received. According to reporting
[[link removed]] by
Citizens for Responsibility and Ethics in Washington (CREW), Trump’s
businesses took in more than $160 million from international sources
during his presidency.
 

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He also got away with violating the constitutional authority given
only to Congress to appropriate federal spending by stealing funds
from the military to try to build his border wall. To be specific, he
diverted $2.5 billion from the military’s construction budget to
that wall project of his. In June 2020, a federal appeals court found
[[link removed].] that
the administration had acted illegally. By then, however, the money
had been spent and Trump’s tenure would soon come to an end.

PRESERVING THE 14TH AMENDMENT

Undoubtedly, however, his determination to put the 14th Amendment in
the trashcan of history should draw the most concern. The rights that
U.S. citizens cherish — from basic civil and human ones to not being
ruled by insurrectionists — are most strongly protected by
provisions in that amendment. The struggle to constitutionalize equal
rights was one of the most important for the Black community after the
Civil War. In November 1865, for example, a “54-foot long petition
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by hundreds of men,” organized by the State Convention of Colored
People of South Carolina, was submitted to Congress demanding “equal
rights before the law,” “an equal voice,” and “the elective
franchise.”

The first line of the 14th Amendment states that “all persons born
or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside.” Known as the “birthright citizenship” statement,
it has almost universally been interpreted to mean that anyone born
within the territory of the United States is automatically a full
citizen. More than 30 countries have the principle of “_jus soli_”
(of the soil) allowing citizenship with no qualifications to, or
restrictions on, those born there, regardless of the status of their
parents. Among the countries
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no restrictions are Brazil, Canada, Cuba, El Salvador, Guyana, Mexico,
Tanzania, Tuvalu, and the United States.

That statement was included in the 14th Amendment specifically to
revoke the Supreme Court’s pre-Civil War 1857 _Dred Scott v.
Sanford_ decision — one of the most egregious it ever made —
denying citizenship and any rights to Black people in the United
States. Chief Justice Roger B. Taney infamously wrote
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Black people and their descendants “had for more than a century been
regarded as beings of an inferior order… they had no rights which
the white man was bound to respect.”

In the post-Civil War environment, that ruling clearly had to be
corrected and so the 14th Amendment’s congressional authors wrote it
in such a way as to include not just newly freed slaves but anyone
born in the United States. (The one all-too-ironic and shameful
exception was Native Americans who weren’t given legal citizenship
until 1924 under the Indian Citizenship Act
[[link removed]].)

Donald Trump has long expressed a deep opposition
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birthright citizenship. He and much of the far right refer to it
derogatorily as “birth tourism” and claim that thousands of women
are coming to this country just to have children who would
automatically become citizens. There should be no doubt that he and
his followers are speaking of immigrants of color from the global
South. When elected in 2016, he promptly declared that he would
abolish birthright citizenship with an executive order. He was then
informed that such an order would never stand up legally and only in
January 2020 did he finally propose new rules for the State Department
that were meant to stop it from issuing visas to visitors coming to
this country supposedly for the purpose of birth tourism. It was
notable, by the way, that the nations of Western Europe were excluded
from those rules, which in any case were so vague as to be impossible
to enforce without breaking laws on privacy. Ultimately, the consensus
among scholars is that it would take a constitutional amendment to end
what is now a constitutional right.

Yet Trump continues to declare that, should he win the presidency in
2024, one of his priorities will indeed be to abolish birthright
citizenship. As he put it last year
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“As part of my plan to secure the border, on Day One of my new term
in office, I will sign an executive order making clear to federal
agencies that under the correct interpretation of the law, going
forward, the future children of illegal aliens will not receive
automatic U.S. citizenship.” His contention that he has a
“correct” interpretation of the law is distinctly in conflict with
the history of past challenges to that amendment. Previous Supreme
Courts, whether dominated by liberals or conservatives, have upheld
birthright citizenship on numerous occasions, starting with the 1898
[[link removed]] _Wong Kim Ark_ case.
Trump, of course, is betting that his three appointments to the court
and at least two other conservative justices will finally break with
such precedents.

Section 1 of the 14th Amendment also guarantees “due process” and
“equal protection under the laws.” That “due process” clause
was specifically meant to stop southern whites who returned to power
in the post-Civil War era from passing state laws and enacting other
policies that would legally treat newly freed Blacks differently. In
the immediate aftermath of the war, however, “Black codes” were
indeed enacted by pro-slavery whites in southern legislatures. As a
result, Congress felt called upon to pass laws, known as
the Enforcement Acts
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meant to ensure that the 14th and 15th Amendments would be the law of
the land and that the rights of Black people would be protected.

In 1896, equal protection for African Americans and other people of
color would nonetheless be nearly trampled to death by the Supreme
Court’s ruling in _Plessy v. Ferguson_. That decision, in fact,
would sanction racial segregation thanks to a perverse interpretation
of the 14th Amendment under the banner of “separate but equal”
(which, of course, actually meant separate and distinctly unequal).
Almost 60 years of Jim Crow segregation followed until, in 1955, the
Supreme Court’s _Brown v. Board of Education_ ruling reinterpreted
the equal protection clause to ensure that “separate” could never
be interpreted to mean “equal.”

Trump, however, has demonstrated strikingly little fealty to the
principle of due process for all. From his 1989 call
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the death penalty for five young Black and Brown men before they even
had a trial to his threatening insistence
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Hillary Clinton and others of his political opponents be jailed based
purely on personal grievances and vendettas, he’s never faintly
respected the constitutional rights of others. He’s called
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be beaten at his rallies and mused
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Black Lives Matter activists should be shot in the legs at
demonstrations.

When it came to foreign policy and immigration policy, his
administration (with his fervent backing) separated children from
their parents in a fierce crackdown on undocumented aliens, while
he demanded
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“total and complete shutdown of Muslims entering the U.S.” In
addition to the racism and cruelty of such policies, they plainly
violated the equal protection clause of the 14th Amendment.

For the Civil Rights Movement and, more broadly, all movements for
social justice and human rights in the United States, the equal
protection clause has proven decisive. The 1964 _Civil Rights
Act_ and the 1965 _Voting Rights Act_ were typically passed on the
principle of “equal protection.” It was also the basis for ending
bans on interracial marriage (_Loving v. Virginia_), providing
abortion rights to women nationally (_Roe v. Wade_), and allowing
same-sex marriage in every state (_Obergefell v. Hodges_).

As demonstrated by their rulings to end _Roe_, as well as affirmative
action in university admissions (with the exception of military
academies like West Point
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Trump-appointed Supreme Court justices simply don’t believe in equal
protection. For a candidate and party that brand themselves as
proponents of “law-and-order” above all else, it’s clear that a
reactionary version of “order” is significantly more important
than fairness or the equal application of the rule of law to every
citizen.

INSURRECTIONISTS CAN’T HOLD OFFICE

Of course, as even certain conservative legal scholars have noted,
Trump played a key role in launching the January 6th insurrection and,
under the third section of the 14th Amendment, should be ineligible to
run again for president. As that section reads, someone — an officer
of state — who violates his or her oath “to support the
Constitution of the United States” and who “shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof” cannot hold office.

Thanks to Trump, millions of Americans now believe
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he won an election he distinctly lost. Although he was told by most of
his own experts and in dozens of court decisions that he had done so,
he didn’t bother to share that information with his followers.
Instead, he continued to foster misinformation and deep anger about
that election. Without him, that crowd would never have gathered in
Washington to “save America” and “stop the steal.” (“Be
there, will be wild!” he tweeted
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his followers.) Without him, its participants wouldn’t have gone to
the Capitol. Without his exhortations
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they needed to “fight like hell,” that crowd he was addressing at
the Ellipse in Washington on January 6, 2021, might never have become
quite so riled up.

Courts in Colorado and Maine have determined that Trump should not be
allowed to stay on the ballot because of Section 3 of the 14th
Amendment. In about half of the other states, cases
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been filed to remove him due to his role in the insurrection
(something on which the Supreme Court will seemingly soon rule).

Most telling, when it came to his cavalier disregard
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constitutional rule, has been his claim that, since the oath of office
he took as president only required him to “preserve, protect, and
defend” the Constitution, he wasn’t obliged (as Section 3 demands)
to “support the Constitution” on January 6th, a distinction only
someone as venal as Trump would have made. But as CREW noted
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response to the petition from Trump’s lawyers in the Colorado case,
“The Constitution itself, historical context, and common sense, all
make clear that the Fourteenth Amendment’s disqualification clause
extends to the President and the Presidency.”

Even conservative lawyers J. Michael Luttig, Peter Keisler, Larry
Thompson, Stuart Gerson, and Donald Ayer have argued in their amicus
brief in the case that “Trump incited the threat and use of violent
force as his last opportunity to stop the peaceful transfer of
executive power.” They state unequivocally that he “had the intent
that the armed mob, at the very least, threaten physical force on
January 6, 2021, in response to his speech on the Ellipse.” And to
be clear, as legal scholar and civil rights lawyer Sherrilyn Ifill
argues in her brilliant amicus brief, Trump’s insurrection was
targeted, in part, against the votes of African Americans.

NO UNDERSTANDING OF, OR DESIRE TO UNDERSTAND, THE CONSTITUTION

In July 2016, as he was about to secure the Republican nomination for
president, Trump had a closed-door meeting with House Republicans. In
responding to a question about Article 1 of the Constitution that
addresses the responsibilities, powers, and limits of the president,
Trump stated [[link removed]]: “I’m for
Article I, I’m for Article II, I’m for Article XII.”

There are, in fact, only seven Articles in the U.S. Constitution.

From the day Donald Trump took office, he had no intention to
“preserve, protect, and defend,” no less “support” the
Constitution. Instead, he essentially ran roughshod over much of that
document. And the issue was never simply his ignorance of the
Constitution (though that should be taken for granted), but his
outright hostility to it. That he has not yet been held accountable
for that should be considered a disgrace in this era and will
undoubtedly be seen as such by generations to come. Today, as in the
years after its passage to defend the rights of the newly freed, the
enforcement of the 14th Amendment remains as much a political question
as a legal one.

In a sense, it couldn’t be simpler. President Donald Trump was an
officer of the United States who incited and engaged in insurrection
and so should be disqualified from ever again holding the office of
the presidency. However, based on skeptical questioning by both
liberal and conservative Supreme Court justices at the February
8th hearing on the case, it appears that the court will likely not
allow Colorado or any other state to bar Trump from the ballot. If so,
the Trump danger will continue — for now.

_[CLARENCE LUSANE, a TomDispatch regular
[[link removed]], is a political
science professor and director of the International Affairs program
and majors at Howard University, and Independent Expert to the
European Commission Against Racism and Intolerance. His latest book
is Twenty Dollars and Change: Harriet Tubman and the Ongoing Fight
for Racial Justice and Democracy
[[link removed]] (City
Lights).]_

_Copyright 2024 Clarence Lusane. Cross-posted with permission. May
not be reprinted without permission from TomDispatch
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* 14th amendment
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* Donald Trump
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* Insurrection
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* Constitution
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* Capitol coup
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* Capitol Siege
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* Jan. 06
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* Emoluments
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* birthright citizenship
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* Equal protection
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* due process
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* MAGA
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* Make America Great Again
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* 2024 Elections
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* GOP
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* Republican Party
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