Musings on the Constitution, Elections, and Providing for the Common Good

By Rudy Barnes, Jr., September 16, 2023

The Chicago newscaster Paul Harvey once said, You can’t have rights without responsibilities.  The Constitution is the foundation of our rule of law and political system, but it cannot hold the fabric of democracy together unless most Americans are committed to promote the common good.  And today the common good seems lost in polarized partisan politics.

In The Federalist Papers James Madison described the U.S. as a democratic republic with “the delegation of government to a small number of delegates elected by the rest.”  But Madison was naive in thinking that Congress had the “wisdom to best discern the true interest of their country and [was unlikely] to sacrifice it to temporary or partial considerations.”

Madison understood the danger of political factionalism, or tribalism, in America’s polarized Congress.  He noted that a political party can become a dangerously divisive faction “when united and actuated by some kind of common impulse of passion like that of race or sex, or of any interest, adverse to the rights of other citizens” or to the common good.”

Thomas Jefferson considered the teachings of Jesus “the most sublime moral code ever designed by man.”  Those teachings are summarized in the greatest commandment  to love God and our neighbors, including those of other races and religions, as we love ourselves.  It’s a universal moral imperative to provide for the common good in a democracy and a common word of faith for Jews, Christians and Muslims.

The Constitution was ratified and became effective on May 29, 1790; and just 70 years later South Carolina seceded from the Union, followed by Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee, and North Carolina.  The resulting Civil War cost 620,000 American lives--more than in all the wars since then.

In 1865 the 13th Amendment ended slavery, and in 1870 the 15th Amendment gave all citizens (except women) the right to vote.  Women would have to wait until the 19th Amendment gave them the right to vote.  It took a while, but by 1920 free and fair elections without discrimination by race or sex were finally affirmed as the lifeblood of American democracy.

Elections are largely controlled by state and local governments, but the Constitution provides some important provisions relating to elections, including a provision in the 14th Amendment that limits those who can run for public office: No  person who swore an oath to the Constitution and then engaged in an insurrection is qualified to hold office.  

A number of U.S. officials, including former President Trump, have been indicted for inciting the Capitol Insurrection of January 6, 2021.  While the Constitution provides the legal foundation for free and fair elections, unless Americans look beyond their polarized partisan politics and seek to provide for the common good by electing those who support and defend the Constitution, the fabric of America’s democracy could once again come apart at the seams.

Notes:

The election qualification in Section 3 of the 14th Amendment of the Constitution provides: 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 a 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.  But Congress may by a vote of two-thirds of each House, remove such disability. 

“Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW), which helped file a suit on behalf of six Republican and independent voters in Colorado says he equated the provision to other qualifications for running for office. “The 14th Amendment says that anybody who swore an oath to support the Constitution and then engaged in insurrection is disqualified to run for public office.  This is just another constitutional qualification.” 

“While Trump has railed against the effort as “another ‘trick’ being used by the Radical Left Communists, Marxists, and Fascists,” the renewed look at the little-used provision was sparked by a law review drafted by two conservative law professors. “It disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,” William Baude and Michael Paulsen wrote of Section 3 of the amendment. But the rarely cited provision leaves open questions about how Trump would be removed from the ballot — or if proactive measures are even needed to do so.

While some legal experts and lawmakers have argued the clause clearly applies to Trump over his role in the Jan. 6, 2021, attack on the Capitol, others cast more doubt and note any challenges are likely to be tied up in court.  Michael Luttig, a former federal judge appointed by former President George H.W. Bush, and Harvard law professor Laurence Tribe have argued in recent weeks that Trump is barred from being on the ballot again because of the 14th Amendment clause.  The two wrote in a piece for The Atlantic that Trump’s efforts to overturn the 2020 election and the resulting attack on the U.S. Capitol on Jan. 6 place him “squarely” within the scope of the clause. “The most pressing constitutional question facing our country at this moment, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause,” the two wrote. However, Michael McConnell, director of the Constitutional Law Center at Stanford Law School, expressed doubts that efforts to remove Trump from the ballot would be successful.  He said “This is uncharted territory. Any lawyer or scholar who tells you one thing or the other is making it up. No one really knows.” McConnell said. “I think it’s pretty unlikely that these challenges will succeed.” He was skeptical that the Supreme Court would ultimately throw a candidate with widespread support off the ballot. That was also a concern of Georgia Secretary of State Brad Raffensperger, who has been a central figure in both a federal and state indictments brought against Trump for election interference.” See https://thehi0ll.com/homenews/campaign/4195050-trump-ballot-14th-amendment-eligibility/.

In early July 1776, delegates from the 13 colonies were far from agreeing to form a “more perfect union.”  July 4, 1776 has been likened to the celebration of a shotgun wedding. See https://time.com/6291967/american-independence-july-1776-was-a-shotgun-wedding/?utm.