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Ethics of the 14th Amendment


One of the first principles of ethics is “just because it’s legal, doesn’t make it right.”

In fact, one could make a long list of laws that allowed the wrongful treatment of others.  Still, one cannot say for sure that the Supreme Court would do the right thing by not upholding the law of the 14th Amendment. It depends on our ethical analysis.


In the past, the focus has been mostly on the 14th Amendment’s principles of due process and equal protection. Now, it’s section 3, which one could see as an attempt to protects the necessary context for equal justice. It states that anyone who has taken an oath to support the Constitution and then engages in an insurrection shall not be allowed to hold public office again.


The legal case seems clear especially for a Supreme Court dominated by Justices who use an originalist interpretation of the Constitution and have supported the sovereignty of States over the Federal government.  


Some Justices, perhaps the majority, will probably want to abandon their originalist principles and allow Trump to run in all 50 States.  If they don’t follow the law, however, how will they justify their decision? What ethical principles will they use? A careful ethical analysis should consider at least three things: The purpose of the Court. The logical consistency of its decision, and the decisions’ probable consequences (see my The Ethical Process).


I would say that the Court’s purpose is to protect the legitimacy of our democracy.  If keeping one’s public oath is central to democratic legitimacy, then the Court should either allow States to disqualify Trump or decide to do it themselves.  The court could also act with consistency in all such cases.  Can you imagine a common practice of public officials making oaths and then violating them?  So, it seems that an ethics of purpose and principle would favor disqualifying Trump. 


The assessment of consequences is more complex.  When a cult leader is dethroned, what will the followers do? If he is not, what will the rest of us do?  When an ethics of purpose and an ethics of principle support disqualifying Trump, it is usually unwise to let an ethics of consequence change the decision.  One might hope that the Supreme Court makes such an assessment, but that would mean that the majority do not belong to the cult.




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