14th Amendment … Section 3: “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.”
Chuck Schumer and bosom buddy (for lack of knowing a kinder way of putting it), Mitch McConnell, seem intent on holding an impeachment trial in the Senate for a private citizen.
Rand Paul has informed us that the Constitution specifically calls for the Chief Justice of the SCOTUS to oversee any presidential impeachment trial. Senator Paul said that John Roberts told him he would not oversee any conviction trial of a former president who is now a private citizen.
Schumer has stated something about getting the 17 Republican votes to convict and then only needing a simple majority to 14th Amendment the former president, thus preventing him from ever holding office again.
The Heritage Guide to the Constitution has three paragraphs on Section 3 that dwell on its meaning with respect to returning Confederates. The final sentence of Section 3 puzzles me: “But Congress may by a vote of two-thirds of each House, remove such disability.” That reads to me like a super majority in both Houses can set aside the insurrection/rebellion restrictions to holding office.
Which takes me to Section 5: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Heritage informs: “Following the pattern of the Necessary and Proper Clause of Article I, Section 8, the enforcement clause of the Fourteenth Amendment grants to Congress the power to pass legislation directed at effectuating the provisions of Sections 1 through 4 of the amendment… A significant limitation in the text of Section 5 is that Congress is authorized only to ’enforce, by appropriate legislation’ the provisions of the Fourteenth Amendment… Thus, for Congress to invoke its power under Section 5, the proposed legislation must be aimed at remedying or preventing actions that would violate some prohibition within the Fourteenth Amendment. The legislation cannot be aimed at changing the scope of the amendment.”
It’s all pretty heady stuff and not clear at all, in my opinion, thus it’s uncharted waters. So, one thing is certain to me, while we are mid-stream in a (faux) pandemic, 10 million Americans are unemployed through the reckless shutdowns imposed by blue-state governors and mayors, turning off the Keystone XL Pipeline and adding thousand more to the unemployment rolls, in an economic war with China, etc., it does seem like attempting to conduct an unconstitutional impeachment of a private citizen, as if he were still the sitting president, should be our biggest concern.
Now, let’s talk about Constitutional crises.
BTW, I am under no illusion that this clarifies anything or answers any questions about this crisis, At best, it raises more questions, but with so much murkiness surround this issue, more questions are needed and then, finally, some objective answers.