When should the Constitutional prohibition on holding certain federal offices be applied?
Why is this a question at all? If there is a prohibition then it should apply right? It's an issue because of our strong desire to give supremacy to the citizens of the U.S. to select their leaders and thus protect the sanctity of the voting process. Simply, it should worry any U.S. citizen whenever a law or rule removes or limits the choice of our leadership from the democratic process. Democracy is our first principle.
When this issue first came to my attention I reacted very negatively. I dislike the idea that a rule of any kind, particularly one that few Americans were familiar with and view as a "technicality", would be the deciding factor regarding who could be our next president. But, over time, my view has changed. Let's explore.
First, the relevant portion of the Constitution.
U.S. Constitution Amendment XIV.
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.
Should a candidate be found to "have engaged in insurrection or rebellion" after taking "an oath, ... to support the Constitution" they shall not hold selected federal offices. I don't seek to debate definitions or questions around insurrection as it applies to any one person or individual but want to explore the discomfort I feel about application of the amendment given it seems to remove the decision from the voter.
To that question, I reflect that there are a number of "rules" within the Constitution regarding who can hold the office of the Presidency. Specifically in the following Sections.
U.S. Constitution Article II. Section 1.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
by the way, also in this Section is the specific oath in question
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
U.S. Constitution Amendment XII.
President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;
U.S. Constitution Amendment XXII. Section 1.
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once
So, the Constitution limits democracy. As citizens, no matter how much we want to, we cannot seat a President that does not meet these qualifications.
- natural born Citizen
- Citizen of the U.S.
- at least 35 years old
- at least 14 years resident within the U.S.
- not from the same state as the Vice-President
- not elected to the office more than twice
So there are at least six specific criteria where a candidate either is, or is not, eligible. Each are clear binary points. Amendment 14 adds one more to this existing qualifications list. Doing so does not take the decision away from the voters. It is no different than the fact that we don't allow voters to choose a 10 year old as the President, no matter how many votes they get.
When considering Amendment 14, I also understand that the Constitution should not be designed in such a way that we enable the country to commit suicide. That is to say, the rules should not allow the citizens to elect someone that intends to eliminate the Constitutional form of government. I don't write that with respect to any specific person. I seek to understand the principles involved to determine what my own view should be. We should not design a government with rules that enable its own destruction.
I conclude that the Amendment should be applied and it is right for it to inhibit the democratic process should a candidate be found to meet the standard of the amendment.