Many emails have come in about Lawrence A. Caplan filing this Declaratory judgment to ban Trump from running for President under the pretense of the 14th Amendment. In his filing, he is clever to state that he admits he was a member of the State Bar of California, but then states “Petitioner has never been sanctioned or suspended by any court” but it appears he may be stripped of his license to practice law in California if this is indeed the same Laerence Allen Caplan. Apparently, his photo appears nowhere, which is rather strange as well.
That said, Caplan argues that no conviction is necessary and that Section 3 of the 14th Amendment is self-executing, which is a real stretch. The words must be given the meaning they had when the text was adopted. This is probably the most overlooked canon of Construction ever.
This entire Section 3 was retributive against anyone in the Confederacy. It was deliberately excluding what they saw as anti-constitutional subversives from office to seek retributive justice. It was in itself anti-democratic and unconstitutional. It removes a constituency’s chosen representative while doing nothing to address the sentiments that such a constituency may still hold. Had they gone along with everyone else in the Confederacy, that was good enough. That itself violated Due Process and the civil rights of those who voted for the individual.
Congress eventually, with a clear head, realized this in itself violated the Constitution and effectively subjugated the South as if they were now the slaves of the North with no rights whatsoever. Congress, with a clearer head, passed the Amnesty Act of 1872, removing all the implications of Section 3. The manner in which Caplan attempts to use this to prevent Trump from holding office is clearly politically motivated, and in reality, Section 3 is questionable as to its Constitutional status. I am shocked that no lawyers seem to have taken up this argument. If one’s political beliefs can be a bar to holding office, then we cannot have a Constitutional government supported by the First Amendment and the Due Process Clause of the Fifth Amendment.
The 14th Amendment Section I also stated that the Due Process Clause applies to the States:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
How can Section 3 afford no due process and equal protection? It cannot negate Section 1 rendering that overruled. Caplan argues it is self-enforcing, and a mere allegation means Trump cannot ever hold office. This is really unconstitutional concerning Caplan’s argument. You cannot interpret Section 3, which creates a legal absurdity. He states:
Any number of top legal scholars, including but not limited to Judge Luttig and Laurence
Tribe conclude that Section 3 requires absolutely no legislation, criminal conviction or other
judicial action to enforce its command. In legal terms, Section 3 is completely “self-executing”.
What Caplan has filed, I believe, is just a continuation of this legal persecution that justified the American Revolution. It is borderline frivolous to grant the interpretation of the 14th Amendment bars Trump with a mere allegation that violates both Due Process of law and the First Amendment. Caplan has the audacity to argue that with Trump merely being charged is good enough, and this clause bars him with simply an allegation. Is Caplan seeking to ensure the Neocons rule? This rejects the foundation of our claimed Rule of Law that one is innocent until proven guilty. This argument in itself violates Due Process of Law. It is denying Trump even a right to be heard. One clause in the Constitution cannot be interpreted, so it violates another. This leads to absurdity.
The Supreme Court held in US v Lanier, 520 US 259, 266 (1997) that “due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. “
The press is NOT reporting that there have already been Section 3 cases that have generated two state and three federal judicial rulings. These are the first rulings on Section 3 in 150 years. There was even one fact-finding hearing before a Georgia administrative law judge trying to bar Rep. Marjory Greene. That produced a very inciteful written decision as well. Judge Charles Beaudrot concluded in a ruling later affirmed by Georgia Secretary of State Brad Raffensperger:
Her public statements and heated rhetoric may well have contributed to the environment that ultimately led to the Invasion. . . . But expressing constitutionally-protected political views, no matter how aberrant they may be . . . . is not engaging in insurrection under the 14th Amendment.
On June 3, 2023, yet another federal judge in the Eastern District of Wisconsin dismissed three more challenges that were attempts to prohibit Sen. Ron Johnson, Rep. Tom Tiffany, and Rep. Scott L. Fitzgerald from being elected. The press is not reporting that this argument has failed in every court it has been presented. These are attempts to violate everyone’s civil rights by overthrowing elections. Only the CIA is allowed to do such things.
To add to the legal nightmare, Article l, Section 5, actually bars Section 3 challenges to U.S. senators and representatives, and it casts doubt that it could ever be self-executing. That provision states that “Each House shall be the Judge of the . . . Qualifications of its own Members.” Under this clause, each of these bodies has exclusive power to decide a Section 3 challenge to one of its own. Clearly, when the 14th Amendment was passed, it could not overrule Article I, Section 5. There is no evidence that Section 3 is self-executing, so who decides? Congress or the Courts?
There is one case involving Section 3 from the period of the Red Scare following the Russian Revolution. This was the case of Victor Berger, who was a socialist from Wisconsin. Berger won a seat in Congress in 1910 and then again in 1918. Following his first term in Congress, he spoke out stridently against American involvement in World War I. The House voted 311-1 to exclude Berger from holding a seat, claiming he gave aid and comfort to America’s enemies by merely his political speech.
Four years later, he was reelected, and the Supreme Court vacated his conviction under the Espionage Act, which they have tried to use against Trump. The 1919 exclusion of Berger from Congress was a constitutional violation based on the rhetoric of the Red Scare-era excesses, much as we have seen calling January 6th an unarmed insurrection, which is absurd, or the COVID-19 hysteria, which they will bring back to control civil unrest. The Berger case illustrates the dangers of construing Section 3 too broadly as they are doing right now.
More than 1,033 people have been arrested for storming the U.S. Capitol building on Jan. 6, 2021. None have been charged with 18 USC §2383. Rebellion or Insurrection. Their charges have been ranging from obstruction of an official proceeding to assault. There are statutes on Rebellion and Insurrection. Nobody is charged with that, and these filings against Trump and others calling it an insurrection are frivolous and clearly an abuse of process.
18 USC §2383. Rebellion or Insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
This statute prohibits the incitement, assistance, and participation in a rebellion or insurrection against the authority of the United States and its laws. The punishment for this crime is a fine, a maximum sentence of 10 years in federal prison, and ineligibility for public office. It is telling that nobody has been charged with this statute, for it would undermine their argument against Trump if they lost.
REBELLION and INSURRECTION refer expressly to acts of violence against the state or its officers. This distinguishes the crime from SEDITION, which is the organized incitement to rebellion or civil disorder against the state’s authority. It also separates the crime from TREASON, which is the violation of allegiance owed to one’s country by betrayal or acting to aid the country’s enemies.
We must understand that these crimes are easily confused, but if the party wasn’t acting on behalf of (or giving aid to) a foreign government, they really cannot be charged with TREASON, as some accused Edward Snowden. Calls to rise up against the authority of the government by staging non-violent protests and strikes would fall more into the category of SEDITION. However, that does not support this attempt to use the 14th Amendment to bar Trump. Nonetheless, that would clearly not be considered REBELLION and INSURRECTION unless the incitement included calls for violent acts such as the destruction of government property or the assault of state officers. The failure to charge over 1,000 people with such a crime is very telling in and of itself.
None of the more than 1,000 people the government is punishing simply because they were Trump supporters have been charged with REBELLION and INSURRECTION. They were UNARMED, and the videos clearly show that the capital police even escorted them in. At best, this qualifies as a civil uprising by the legal definitions. There were government agents all intermixed, and the videos confirm that. This was orchestrated to use this 14th Amendment to prevent Trump from ever running again, no different than the Weapons of Mass Destruction that never existed or, as President Johnson said, we were never attacked by Vietnam. They wanted war and lied about that as well. Or the 1962 Project Northwoods proposal, in which the CIA wanted to kill Americans to justify invading Cuba, Kennedy rejected.