Opinion: Mike Lee has a creative interpretation of the 14th Amendment

The senator consistently reaches facially absurd results in his reading of the Constitution.

(Francisco Kjolseth | The Salt Lake Tribune) Utah Sen. Mike Lee, right, joins Rick Larsen, President and CEO of the Sutherland Institute during a speaking engagement at the conservative public policy think tank on the University of Utah campus on Tuesday, Aug. 22, 2023.

Utah Sen. Mike Lee, self-proclaimed constitutional scholar, took exception to Maine’s secretary of state barring Trump from the ballot, claiming that Section 3 of the 14th Amendment doesn’t apply to presidents.

The amendment includes the following relevant text: “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.”

“An ‘officer of the United States’ is appointed by the president unless the law gives appointment power to someone else,” Lee claimed. “The president isn’t ‘an officer of the United States.’ The presidency is thus not covered by Section 3 of the 14th Amendment.”

This is a creative reading of the plain English in the amendment, which was addressed by conservative political commentator and lawyer David French: “Remember, when reading the Constitution, words still retain their ordinary meaning, and the president is an officer under the United States by any conventional meaning of the term. In many ways, it would be fantastical to conclude otherwise. Is it really the case that insurrectionists are excluded from every office except the most powerful? One should not read constitutional provisions in a way that reaches facially absurd results.”

But Lee consistently reaches facially absurd results in his reading of the Constitution.

Steven Portnoy of ABC News recounted the creation of the amendment and the debates that preceded its ratification. The text of the amendment was written by Republican Sen. Jacob Howard of Michigan. When Maryland Democratic Sen. Reverdy Johnson asked why Howard had excluded the president and vice president in the amendment’s language, Maine’s Republican Sen. Lot Morrill clarified, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States,’” indicating that the president and vice president are considered officers of the United States.

When considering the context in which the 14th Amendment was written, it is absurd to conclude that the framers of the amendment would want to prohibit insurrectionists from serving in Congress but would leave an open door for, say, Robert E. Lee or Jefferson Davis to seek the presidency.

Significantly, William Baude and Michael Stokes Paulsen, whom French calls “two of the most respected conservative legal minds in the United States,” have authored an influential article in the University of Pennsylvania Law Review arguing that the 14th Amendment “covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”

In short, it is Mike Lee who needs to read the Constitution more carefully and do a little research, rather than fabricating a Trump lapdog argument that doesn’t hold any water.

Roger Terry

Roger Terry is the editorial director of BYU Studies, a multidisciplinary scholarly journal.

The Salt Lake Tribune is committed to creating a space where Utahns can share ideas, perspectives and solutions that move our state forward. We rely on your insight to do this. Find out how to share your opinion here, and email us at voices@sltrib.com.