There's a term growing in the legal community called "resistance law." This is where liberal legal scholars attempt some fantastical new legal theory to "resist" Donald Trump within the legal system. Since Trump entered the White House, we've had many of these legal theories trotted out for everyone to laugh out of the room. The latest version is that Donald Trump should be disqualified from being on the 2024 ballot because of the 14th Amendment.
This legal theory is the definition of "throwing things at the wall to see if they stick." This theory alleges that because of the January 6, 2021 events, Donald Trump is ineligible to appear on the ballot under the 14th Amendment's provision against insurrection or rebellion.
Democrats and anti-Trump partisans rely on Section 3 of the 14th Amendment to support this argument. This Amendment was approved in the aftermath of the Civil War. It 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.
The theory here is that because Donald Trump engaged in an insurrection or rebellion against the United States, he's disqualified from holding office or being on the ballot.
To say there are a few issues here is putting it mildly. Skipping over some of the legal technicalities, like who would even have the standing to pursue such a course and the state-specific reality of ballot access, the terms "insurrection" and "rebellion" have defined meanings.
I agree with former Federal Judge Michael W. McConnell. The proponents of this theory haven't come close: "These are demanding terms, connoting only the most serious of uprisings against the government, such as the Whisky Rebellion and the Civil War. The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common in United States history. Many of these riots impede the lawful operations of government, and exceed the power of normal law enforcement to control. Are they insurrections or rebellions, within the meaning of Section 3?"
The answer is no. And if we use a counter-set of facts, that becomes abundantly clear.
In the summer of 2020, multiple cities burned from the rioting over George Floyd. In Seattle, leftists set up the "Capitol Hill Autonomous Zone - or Chaz." They claimed authority over everything there and rejected local or state authority. By the definitions liberals are using for Donald Trump, should we seek out and deny ballot access to the people involved in those protests? Are these insurrectionists engaged in a rebellion?
I don't know a single liberal or progressive legal scholar making that case. But they're made a perfect example here for treating everyone involved as insurrectionists. The point here isn't that there's hypocrisy - that's the obvious point - it's that the 14th Amendment argument is being brought up as the latest "silver bullet" to remove Donald Trump from politics. The theory is only seen as working against him, whereas in reality, it can be applied in many ways if the #resist crowd gets their way.
The media gleefully covers this under the guise that clicks on their stories equate to aiding the resistance movement. But this is a continuing theme on the legal left, where they try to overthrow all norms to go after one politician. In the process, they create a new bastardization of the law that leaches across the entire legal ecosystem. The law is supposed to provide stability to anchor a polity, and this resistance law would overthrow all that purely to take aim at Trump.
That's not to say Trump shouldn't answer for his January 6th actions. He should. Congress even took up the notion of an impeachment immediately after those days — and there was no agreement in Congress that they had the goods on such an impeachment. If the members of Congress, who witnessed those events, couldn't agree on an impeachment resolution, it's not incumbent on legal scholars to twist the law in the pretzels as a form of "getting back."
In a lengthy law review article debunking this theory, law professors Barrett Tillman and Josh Blackman "worry about the impact" the novel theory will have on the legal landscape. They astutely observe this theory shifts electoral power out of state and voter hands and into that of judges, partisan Secretaries of State, and more. They also note that a case of this magnitude would have more impact than Bush v. Gore.
They're right on all counts. Resistance legal theories are doing more to rend the Republic apart at its seams rather than saving everyone as they claim. Win an election and convince people; stop trying to subvert the Constitution to petty partisan ends. We get it: people hate Donald Trump, and January 6 was wrong — that doesn't mean we chuck all of Constitutional law and history out the window.