James Madison and the Philadelphia Gang of Six have taken quite a beating lately. Recent tirades have focused more on amendments to the Constitution than the original document. Particular topics of debate include:
- The establishment clause of the First Amendment.
- The right to bear arms in the Second Amendment.
- Section 3 of the 14th Amendment which prohibits certain individuals who have engaged in insurrection from holding public office.
I will address them one by one, beginning with the current debate over the meaning of the establishment clause of the First Amendment which reads as follows. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Subsequent Supreme Court decisions have added definition to the phrase “establishment of religion,” while enumerating instances in which religious institutions can take advantage of federal funding (e.g., the provision of community services such as food programs and mental health counseling).
However, the individual who is now second in line in presidential succession Speaker of the House Mike Johnson rejects this balance as he explained during a CNBC interview.
The separation of church and state is a misnomer. People misunderstand it. Of course, it comes from a phrase that was in a letter that Jefferson wrote. It’s not in the Constitution.
Even if the Founding Fathers were less than clear when they drafted the Bill of Rights, the New Testament is not. Therefore, one must assume Johnson’s copy is missing the page which includes Matthew 22:21. “Then render to Caesar the things that are Caesar’s; and to God the things that are God’s.” Like Jefferson’s letter on religious freedom, this too is not in the Constitution, but Johnson claims the Bible must be taken literally. Except, of course, when it contradicts his vision of America as a Christian theocracy. I am still waiting for Johnson to inform Louisiana crabbers and shrimpers they must stop trafficking in taboo products according to Leviticus 11:12, “That which has no fins nor scales in the waters, that is a detestable thing unto you.”
When it comes to the Second Amendment, rather than biblical verses, I will paraphrase work gang Captain (Strother Martin) in Cool Hand Luke, “What we’ve got here is…a failure of imagination.” The Founding Fathers were visionaries in most cases, but not all. Proponents of gun safety legislation regularly suggest the drafters did not envision individual citizens carrying assault weapons. Maybe we give Madison, et. al., more slack than they deserve. The weapon of choice when the Bill of Rights was ratified (1791) was the Brown Bess musket, a state of the art firearm which could fire three to four shots per minutes (dare I call it a barely-automatic assault weapon). The introduction of flint to ignite the gunpowder was a major advance from earlier muskets, much less knives, bayonets, spears, rocks and clubs. If only the Founding Fathers had anticipated firearms would continue to evolve over time, they might have distinguished between weapons for personal protection and national security.
The Supreme Court could still do that, though I am not holding my breath. They need only rely on the phrase “organized militia,” you know, what we now call the National Guard. In other words, if someone wants to wield an assault weapon, instead of “playing” soldier, they can join the Guard, live out their fantasy under trained supervision once a month, and show that they actually support the military. On occasion, they might actually mobilize to put down an insurrection, not by rebellious slaves, but by, again you know, cultists who storm the U.S. Capitol to overturn a free and fair election.
Which brings me to Section 3 of the 14th Amendment. Colorado Judge Sarah Wallace is under scrutiny due to her response to efforts to keep Donald Trump off the primary ballot for having “engaged in insurrection.” The language contained in her decision has drawn more attention than the decision itself. While she found Trump had incited the January 6 attack on the U.S. Capitol “within the meaning of Section 3 of the 14th Amendment,” she declared the clause does not apply to the president. The plaintiffs have appealed Judge Wallace’s decision. They cannot believe the president is not included in the laundry list of positions to which the ban applies, especially the catchall phrase “officer of the United States.”
This one we have to lay on “Founding Fathers: The Next Generation” who drafted the language which passed Congress in 1866 and was ratified on July 9, 1868. And again it was a failure of imagination resulting from wrong assumptions. The Civil War was an insurrection against an institution, the federal government. Abraham Lincoln’s assassination was an assault on the leader of that institution. This latter event may well have influenced the language when it comes to the omission of a sitting president from the positions to which Section 3 applies.
Sponsors of the 14th Amendment quite logically may have assumed that a president, chief executive of the federal government, would never engage in an insurrection against himself. It might come from a band of disgruntled citizens, rogue members of Congress or even his own cabinet, but not at his own direction. They also assumed the executive branch would be the target of insurrectionists, an assumption we now know was also false.
It appears no one foresaw the situation in which a sitting president would refuse to leave office after having been rejected by voters or through impeachment and conviction of high crimes and misdemeanors. Ironically, the question should have come up at the exact time the 14th Amendment was before the states for ratification. On February 24, 1868, the House of Representatives impeached President Andrew Johnson by a vote of 126-47. The Senate trial began March 5, 1868 ending in an acquittal on May 26, 1868. What if Johnson had been convicted? Since the executive branch under Article II is responsible for enforcing the law, who would ensure a president vacated the White House? Was it possible the drafters of Section 3 understood this conundrum and decided the possibility a chief executive would turn against his own government was so slim they saw no need to resolve it?
Whatever one thinks of the ex-president and his right to serve in office again, a federal judge can only rule based on the law she is given. As much as I wish Trump could not be a candidate in 2024, Judge Wallace faithfully executed her oath of office. If only others followed her example. Additionally, she would not have been in this position if the Founding Fathers and future lawmakers had adopted the mantra of this blog, “Consider All The Possibilities.”
For what it’s worth.
Dr. ESP