#951 Article XIV, Section 3: The Constitutional Equivalent of the Manhattan Project?

81 years ago this month (Aug. 13, 1942 to be precise) The United States - along with the United Kingdom and Canada - commenced on what would become known as the “Manhattan Project.” For those who don’t know much about mid-20th century history (or have not as yet seen the movie “Oppenheimer,” starring the Irish actor Cillian Murphey as the fabled yet troubled nuclear physicist J. Robert Oppenheimer), the “Manhattan Project” was the top-secret program to make the first atomic bombs during World War II. The project, which employed more than 130,000 people over a period of nearly 5 years, had profound impacts on world history. It was a truly monumental effort created, crafted and accomplished in the darkest of all earthly shadows. Without it, it is likely that the Allies would never have defeated the Axis in 1945; only G-d knows what the world would look like today, in 2023.

To a haunting extent, we are once again faced with an evil that threatens our very future: Donald Trump and the threat he and his MAGA cultists pose to the very future of democracy. In both political and psychological terms he himself is a freak of nature.

Despite having been twice impeached; currently facing 4 separate state and federal indictments totaling 91 different charges; having been found guilty of defamation of character against a woman who accused him of rape; having been caught spreading more than 30,000 lies and mistruths during his four years in the White House; getting his followers to pay his legal fees . . . etc., etc., etc., his supporters trust him more than their families or religious leaders. This essay is not the place to get into a discussion of either the nature of cult leaders and their rabid followers or the psychology behind conspiracies . . . though both deserve a thorough airing.

It seems pretty obvious that behind closed doors, a vast percentage of Republican office-holders despise Trump (who my friend Alan refers to as “The Orange Blob”) and wish he and his MAGA maniacs would just fade away. They know and understand (again, “behind closed doors”) that he represents clear and present danger to America. Sadly, most all of them - save former New Jersey Governor Chris Christie - lack the backbone to speak the truth in public. What they pray for is some sort of “magic bullet” that will do Trump in without their having to lift a finger or utter a discouraging word . . . and the skies are not cloudy all day.

Back in 1942, when the future of democracy was in dire straits, the “magic bullet” was underwritten by the FDR Administration, who turned to the sages of science . . . people like J. Robert Oppenheimer, Leo Szilard, Hans Bethe and Ernest O. Lawrence to create that weapon. (Do note that with the exception of Dr. Lawrence, the rest of these distinguished physicists who headed up the Manhattan Project were all Jewish immigrants.) Today, the magic bullet so many seek to put Donald Trump out of democracy’s pending degradation, may well come in the form of Article XIV, Section 3 of the United States Constitution, which states:

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.

Prof. Laurence Tribe and Judge J. Michael Luttig

A couple of days ago, Laurence Tribe, the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard Law and J. Michael Luttig, the longtime (1991-2006) Judge for the United States Court of Appeals for the Fourth Circuit, co-authored a remarkable article in the Atlantic entitled “The Constitution Prohibits Trump from Ever Being President Again." The two august Constitutional scholars - Tribe a progressive and Luttig a conservative who has often been compared to the late Justice Antonin Scalia, began their article thusly: As students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.

“The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause. …

Tribe and Luttig are by no means the first to discuss - let alone conclude - that Article XIV, Section 3 can and should disqualify Donald J. Trump from ever again serving as POTUS. Indeed, this legal/political thread has been a hotly debated issue among academics and political geeks since January 7, 2021. The swirl of approval surrounding the use of XIV:3 to remove the “disability of Donald Trump" has been growing ever since. Many of the most vocal are conservative members of the Federalist Society.

Writing in the University of Pennsylvania Law Review, law professors William Baude and Michael Stokes Paulsen, members of the conservative Federalist Society, agree: “In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.” 

This is not to say that there is total agreement ridding the nation of Trump via Constitutional mandate; some are uncertain that it can work. Since when was there unanimous agreement on anything concerning “the Orange Blob?” And yet, this could be, as they say in Yiddish פֿון הימל קומט אַ מתּנה - “a gift from Heaven.” For Democrats, most Independents and all those Republicans who really, truly don’t want Trump to win the nomination - thus bringing a plague of frogs, lice, vermin and utter defeat at the polls raining on their political parade - this provides the perfect out: keeping quiet and letting the Constitution answer their “behind locked doors” prayers.

As journalist Bill Press, my long ago boss in Governor Jerry Brown’s “Office of Planning and Research” noted just the other day: The language (of article XIV, Section 3) is so clear, not even today’s conservative Supreme Court could read the Constitution any other way. Trump is not only unfit to be president, but he is also constitutionally prohibited from holding that office. Period. For leaders of the Republican Party, the next step is clear. Follow the 14th Amendment. It’s time to stop entertaining Donald Trump and find another candidate.”

One gigantic difference between the Manhattan Project and Article XIV, Section 3 of the Constitution is that the former was done under cover of darkness, while the latter is (hopefully) going to be concluded in the bright light of day.

Here’s looking to a better, more democratic tomorrow . . .