A view from the man on the Clapham omnibus

Section 3 of the 14th 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 or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Initially, it seemed clear to me as "a man on the Clapham omnibus" that the 14th amendment barred anyone involved in an insurrection from becoming president.  However, having read several opinion pieces by people more knowledgeable of the law and its interpretation that me, that clarity is becoming a little hazier.    

Doing the easier bits first, as my accounting prof used to say, is the question as to whether the people or the courts should decide whether in insurrectionist may hold the highest office in the country.  First, the courts so far seem to agree that an insurrection did occur, that there was a concerted effort by a group, orchestrated by one individual in particular to subvert the orderly transition of power, and overturn the results of a free and fair election. The courts and the Congressional Inquiry into the events of January 6th 2021 do seem to agree that what happened in the weeks leading up to the formal ratification by Congress of the results of the 2020 general election meets the standard of an insurrection. 

Second, the Supreme Court had already weighed in on issues that determine who will become president in Bush vs. Gore, establishing that to do so is not without precedent. Second, particularly from an originalist and non-interventionists perspective, the societal consequences, while salient, should not take precedent over the interpretation of the law, when the law is clear.  Moreover, it has been pointed out that if the people's representatives consider that an exception need be made to the court's ruling, that is an option explicitly set out in the last sentence which gives Congress the power to do so.  

Next is the issue of the wording with respect to the highest office of all, that of the presidency. It has been suggested that there is a clear hierarchy in terms of importance, starting with senators, members of congress, the electors for the two "top jobs" and ending with "or hold any office, civil or military, under the United States, or under any State". The implication is that in naming certain offices in order of importance, the presidency cannot reasonably be considered to be subsumed in the catch-all of "or hold any office". Furthermore, one writer maintains that "under the United States" means under the United States government and that since the presidency is the highest office it cannot be said to be "under" anything.  This last argument seems rather week; the might better be seen as in institution under which all elected officials including the president, work. 

My final thought, which is not one that I've seen written about, concerns the question of primary ballots.  The cases making their way through the courts are about whether an insurrectionist can appear on a primary ballot. But being listed as a candidate on a primary does not mean that if the insurrectionist were to win he would be holding any federal or state office. It only means he would be listed, unless barred from running, in the general election. So the 14th Amendment cannot apply to a primary election since these elections are not for "offices", state or federal.  If the case is about the general election, which does determine who holds an office, the question is as yet a hypothetical one, since an insurrectionist has not yet won in any primary.  Surely then, a decision about an insurrectionist being barred from the general election should wait until that hypothetical becomes a reality? 

This year will be an inflection point in many ways: the election itself, the decisions of SCOTUS, artificial intelligence, the wars in Ukraine and Israel's battle with the Palestinian terrorists. We are living in "interesting times".