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Legal Theorists Try To Attack Trump. Their Argument May Be Dead On Arrival.

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Donald Trump via Gage Skidmore Flickr

A novel legal theory from two conservative legal scholars published in the University of Pennsylvania Law Review that a section of the 14th Amendment makes Donald Trump ineligible to run for president may be getting a court hearing in Florida.

As Ballot Access news editor emeritus Richard Winger notes:

On August 24, a Florida voter, Lawrence Caplan, filed a federal lawsuit seeking to bar former President Donald Trump from being placed on 2024 ballots as a presidential candidate. Caplan v Trump, s.d., 0:23cv-61618.

Caplan, who appears to be representing himself in the case, writes:

Section 3 of the 14th Amendment, which provides for the disqualification of an individual who commits insurrection against our government has remained on the books for some one hundred and fifty plus years without ever facing question as to its legitimacy. While one can certainly argue that it has not been thoroughly tested, that fact is only because we have not faced an insurrection against our federal government such as the one while we faced on January 6, 2021. It should also be noted that President Trump has since made statements to the effect that should he be elected, he would advocate the total elimination of the US Constitution and the creation of a new charter more in line with his personal values.

Winger believes Caplan’s suit is “misguided:”

The Fourteenth Amendment “insurrection clause” bars individuals from being sworn in to certain offices, but it does not bar them from seeking the office. When the Fourteenth Amendment was passed, there was no mechanism to prevent any voter from voting for any candidate.

Caplan appears to be taking the law review article’s authors, William Baude and Michael Stokes Paulson, at their word:

“No official should shrink from these duties. It would be wrong — indeed, arguably itself a breach of one’s constitutional oath of office — to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three,” Bode and Paulsen write.

Alternatively, ordinary citizens could file challenges on the same grounds with state election officials themselves.

And other such suits may emerge over the coming weeks. I’m not convinced any federal judge will be willing to read Section 3 like Baude and Paulson say it should be. It’s not because the Section’s words aren’t clear – they are.

My concerns are akin to those of Cato’s Walter Olsen, who writes:

…no one should assume that just because Baude and Paulsen have made a powerful intellectual case for their originalist reading, that the Supreme Court will declare itself convinced and disqualify Trump. Justice Antonin Scalia memorably described himself as a “faint‐​hearted originalist,” which captures something important about the thinking of almost every Justice—if overruling a wrongly decided old case threatens to disrupt settled expectations to the point of spreading chaos and grief through society, most of them will refrain. Stare decisis, and a general preference for continuity in law, still matters.

Exactly. While some judges may nurse images of themselves as bold crusaders for justice, most jurists aren’t eager to upset established practice and precedent on a whim. Though, to be fair to the times when such upsets have occurred – Brown v. Board of Education, for example, or Griswold v. Connecticut – have been warranted, necessary, and beneficial.

Does that apply in the Caplan case? A court will decide. But as I’ve long said about Trump, the only court he cares about is public opinion. If voters reject him, that will carry more weight and sanction than any court could ever deliver.

The opinions expressed in this article are those of the author and do not necessarily reflect the positions of Great America News Desk. It first appeared in American Liberty News. Republished with permission.

3 COMMENTS

  1. Put plainly, the criminal government is deathly afraid of Trump, and are throwing the whole kitchen pantry against the wall, desperately hoping something anything will stick, so they can get rid of Trump!! And continue their thievery of the nation, as well as the destruction of the constitution and nation as whole, to realize the one world communist state! I personally think Tucker Carlson may be right, if this doesn’t work, the criminal government will resort to the JFK option!

  2. Our CIC (Coprolite in Chief) is so stuffed with the notion that government controls, he’s unable to understand the notions of service as laid down for our constitutional republic. He thinks his words, even if he invents them, always are accepted as truth, just as they were for the notorious emperor.

    Our CIC is oblivious to reality and if those who didn’t read his record and don’t see it now, the U.S. will be ceded to one of our economic competitors. He’s already demonstrated his inability to face China, Russia or even small autocracies, e.g., Afghanistan. The U.S. will be prey rather than peacemaker.

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