The BDN Opinion section operates independently and does not set news policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
On Thursday of last week, Maine Secretary of State Shenna Bellows made a decision that propelled her into the national limelight, ruling that Donald Trump is “ineligible” for the office of president, and thus could be denied ballot access for the upcoming Maine Republican primary.
This, of course, comes on the heels of the decision a week prior by the Colorado Supreme Court to do the same. Hours after Bellows made her decision, her counterpart in California of all places, Shirley Weber, announced that Trump would remain on the ballot there.
In her decision, Bellows stated that she was denying Trump ballot-access because “no presidential candidate has ever before engaged in insurrection.” She argued that the Capitol riot on Jan. 6, 2021, was an insurrection, and that Trump instigated it.
One problem with her ruling is that any such definition is a highly subjective and ambiguous opinion. Ask 100 people what they think that event was, and you will get answers that are wildly varied and highly correlated to political identity.
In other words, you have a significant gray area.
Interestingly, the provision in the Constitution that Bellows uses to justify her decision does not deal well with such uncertainty. Let’s go back to the aftermath of the Civil War and consider the 14th Amendment, and Section 3 of it, in the context of its passage to understand why.
At the Civil War’s conclusion, the 14th Amendment was enacted in order to grant citizenship to former slaves and provide all citizens with equal protection under the law. It also was meant to clean up the mess created by the reintegration of Confederate states back into the Union.
One of those specific messes was former rebels returning to government. After the war was over, former Confederate states began to send “unrepentant” rebels to represent them in Congress, threatening to jeopardize Reconstruction and reintroduce the political divisions that existed before the war started.
Section 3 of the 14th Amendment was created to provide for a constitutional mechanism to keep them out of government.
When it was designed, the question of who was an insurrectionist rebel was simple. The states that initiated the Civil War openly declared their rebellion against the U.S. government, removing any dispute over their status. This made anyone in the Confederate governments or the armies insurrectionists.
There was no ambiguity and no room for interpretation. Rebels were self-declared and their purpose clear, and the question of their status did not require any kind of adjudication.
That is why the drafters of the 14th Amendment made Section 3 “self-executing.” There is no spelled-out process by which a person is deemed by an authority — say, Congress — to meet the definition. Rather, it is thought to be self-evident, because in the world of the draftees, it was.
That is, however, not the case today. No matter where one falls on that partisan spectrum, we all have to admit that the 2020 presidential election was not the Civil War, and Jan. 6 is not a prima facie case of self-declared rebels.
Our interpretation of that event is the ultimate political Rorschach test. Partisans of all stripes see the same event through their own political lens. Bellows, who is stridently progressive, unsurprisingly saw insurrection and ruled accordingly.
If these types of rulings are truly going to be in the hands of partisan politicians, though, we are begging for further civic disintegration. America is already overflowing with populist resentment and frustration, distrustful of almost every single institution. Now, partisans are making decisions that throw their political opponents off the ballot.
Even if they are right in their determinations — to be clear, I firmly believe they are wrong — the appearance of opportunistic partisanship will only fuel bitter recrimination.
Absent a U.S. Supreme Court ruling that invalidates the Colorado and Maine decisions, a fair, nonpartisan adjudication is our only way out of that nightmarish future. Bellows put her decision on hold pending such a court ruling.
To be clear, this is not required by the 14th Amendment, but if this course of action is to be seriously considered we need go through the process of making a criminal charge of insurrection against Trump. We then need to try the case, and let a jury of impartial peers rule on the question.
If said jury convicts, then authorities in Colorado and Maine can point to that conviction as an impartial, untainted ruling that definitively settles the question, and takes it out of the hands of partisans. If the jury acquits, the attempts to invalidate should end.
Without that, we are just leaving the interpretation of this question to those who may have political agendas, and that will not lead us to a good end.
