Monday, March 04, 2024

The Supreme Court Rejects the Original Meaning of Section 3 of the 14th Amendment in the Trump Disqualification Case

 I have argued that under the original meaning of Section 3 of the 14th Amendment, Donald Trump is disqualified from holding any public office in the United States.  Consequently, I agreed with the ruling of the Colorado Supreme Court that Trump was disqualified from running for the presidency.  But still I have suggested that the Congress should debate the possibility of granting Trump amnesty.

I have also said that this illustrates the evolutionary psychology of constitutional law: human beings have an evolved mental capacity for symbolism that allows them to create the moral idea of someone having the authority of a president as prescribed by the language of a constitution.

Today, the Supreme Court released its opinion in Trump v. Anderson overturning the Colorado Supreme Court decision.  Remarkably, the Justices were unanimous in concluding that state governments and state courts do not have the power to enforce Section 3 against federal officeholders and candidates.  They give two reasons for this.  First, they are unanimous in saying that allowing the states to enforce Section 3 would create "a chaotic state-by-state patchwork" of standards for applying Section 3.  Second, five of the Justices believe that enforcement of Section 3 requires congressional enforcement under Section 5 of the 14th Amendment.  

This is a bad decision because both of these reasons violate the original meaning of Section 3.  Thus, we see here a clear case in which the originalist Justices on the Court have departed from the original meaning of the Constitution.

The worry about a chaotic patchwork of state court decisions makes no sense.  Clearly, state courts have the power to interpret the U. S. Constitution as applied to the cases that come before them.  When the state courts disagree in their interpretations, then one of the primary functions of the United States Supreme Court is to resolve these disagreements by declaring a uniform interpretation.   So, in this case, the U.S. Supreme Court needed to formulate uniform standards for interpreting Section 3 as applied to Trump. There is nothing in the 14th Amendment that denies the power of state courts to interpret that amendment subject to review by the Supreme Court.

Moreover, the Constitution clearly grants to state governments and state courts the power to judge the constitutional qualifications of candidates for federal office--for example, the requirements that the president must be at least 35 years old and a "natural born" citizen of the United States.  In a 2012 decision of the U.S. Court of Appeals for the Tenth Circuit, Neil Gorsuch upheld a Colorado state official's decision to bar from the ballot a presidential candidate who was not a natural born citizen.  The Colorado Supreme Court decision in December cited this opinion by Gorsuch.  But now that Gorsuch is on the U.S. Supreme Court, he is contradicting this earlier decision without any explanation for why he is doing this.

Nothing in the 14th Amendment limits the pre-existing power of state courts and ultimately the Supreme Court to adjudicate a presidential qualifications dispute before the election.  The majority in this case, however, claim that Section 5 of the 14th Amendment means that Section 3 cannot be enforced by the courts without congressional legislation.

Section 5 reads "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  Notice that this says "power" and not "the power."  Nor does it say "exclusive power" or "sole power."  Elsewhere, the Constitution does speak of "the sole Power" (Art. 1, sec. 2, cl. 5, and sec. 3, cl. 6) and "exclusive Legislation" (Art. I, sec. 8, cl. 17).

In Art. I, sec. 10, "No State shall" is used for more than 15 prohibitions.  This phrase "No State shall" also appears in Section 1 of the 14th Amendment.  But this does not appear in Section 5 of the 14th Amendment.

Furthermore, it has been generally understood in many Supreme Court opinions that state courts and state governments can enforce the provisions of the 14th Amendment even without any congressional enforcement legislation under Section 5.  Otherwise, as the Colorado Supreme Court observed, Congress could nullify the 14th Amendment by not passing enacting legislation.  Why should Section 3 be any different?  Today's decision does not even ask that question much less answer it.

Today's decision also makes a deceptive argument about the "lack of historical precedent" for the "state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment" (p. 9 of the Per Curiam decision).  In a footnote, they admit: "We are aware of just one example of state enforcement against a would-be federal officer.  In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional election, because--in the Governor's view--Section 3 made Christy ineligible to serve.  But the Governor's determination was not final; a committee of the House reviewed Christy's qualifications itself and recommended that he not be seated.  The full House never acted on the matter, and Christy was never seated."

The Citizens for Responsibility and Ethics in Washington has published a good chart of all the cases of "Public Officials Adjudicated to be Disqualified under Section 3 of the Fourteenth Amendment."  There are only eight individuals on this list, which includes John Christy.  And, indeed, Christy is the only example of a state enforcement of the Section 3 disqualification against a candidate for federal office.

But the Supreme Court Justices are silent about the obvious explanation for why this list is so short.  There are two reasons for this.  First, it was so well understood that former Confederates who had taken an oath to support the Constitution before the Civil War were disqualified from holding public office under Section 3 that they either did not seek office, or they petitioned for amnesty.  In fact, thousands of former Confederates petitioned the House Select Committee on Reconstruction of the 40th and 41st Congresses (1867-1871) asking that Congress remove their Section 3 disqualification.

The second reason for why the list is so short is that the Section 3 disqualification for most former Confederates was in effect for less than four years.  The 14th Amendment was ratified on July 9, 1868; and Congress passed the Amnesty Act on May 22, 1872, which granted amnesty to most of the ex-Confederates.

The Supreme Court says nothing about this history, which shows clearly that everyone understood the original meaning of Section 3 that anyone who had violated his oath to support the Constitution by engaging in insurrection was disqualified from public office at the federal or state level.

So, it's clear that in order to rule in Trump's favor, the originalists on the Supreme Court had to disregard the original meaning of the 14th Amendment.  Of course, the five originalists (Thomas, Gorsuch, Kavanaugh, Barrett, and Alito) had to do this to win the votes of the four Justices who are not originalists (Roberts, Kagan, Sotomayor, and Jackson).

Here's what the Court should have done.  They should have upheld the Colorado Supreme Court's decision that as an insurrectionist who violated his oath of office to support the Constitution, Trump is disqualified for public office under Section 3.  But they should also have noted that deciding whether disqualifying Trump would be good for the country is a political question rather than a judicial question; and if two-thirds of each House of Congress want to grant amnesty to Trump, they can do that under Section 3.

Actually, the Congress has already passed a general amnesty law--the Amnesty Act of 1872--that could be interpreted as suspending Section 3 after 1872:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States."

The language here--"all persons whomsoever, except . . ."--would seem to have set aside Section 3 from all future application after 1872.  But I remain undecided about this. 

ADDENDUM:  March 19, 2024

Yesterday, the U. S. Supreme Court declined to hear the appeal of Couy Griffin, who had been declared disqualified to hold state office in New Mexica because of his participation in the January 6th insurrection, which was held to have disqualified him from public office under Section 3 of the 14th Amendment.  Although the Court did not explain its reasoning, as is common in the denial of certiorari, this refusal to hear Griffin's appeal underscores the fact that the Court's decision in Trump v. Anderson did not make Section 3 totally ineffective.  Even though the Court held that the Colorado Supreme Court did not have the authority to disqualify Trump for future public office under Section 3, they made it clear that "States may disqualify persons holding or attempting to hold state office."  Thus, Griffin becomes the only U.S. elected official that has been barred from holding public office because of his participation in the January 6th insurrection at the U.S. Capitol.

                                      Couy Griffin with ex-President Trump in the White House

Griffin is a Republican who was elected a county commissioner in Otero County, New Mexico, in 2018.  The founder of "Cowboys for Trump," Griffin was convicted in a U.S. District Court for his participation in the January 6 insurrection.  Then, the Citizens for Responsibility and Ethics in Washington (CREW) filed a case on behalf of three New Mexico residents charging that under Section 3 of the 14th Amendment, he was disqualified from any serving in any public office.  CREW is the same advocacy group that brought the Colorado lawsuit to disqualify Trump.

In 2022, a state district court in New Mexico found that the January 6 attack was an insurrection under Article 3, and that Griffin aided that insurrection, so that he should be disqualified from public office.

So now, the Supreme Court has made it clear that states have a duty under the Insurrection Clause to disqualify from state office anyone who broke their oath to support the Constitution by participating in the January 6 insurrection.

But isn't it strange that the Supreme Court says that states do not have a similar authority to disqualify an insurrectionist former president from federal office?


jason said...

Jan 6th was FBI. Trump only wanted peaceful protests. So you are braindead if you think he did sedition. Fuck you asshole.

Larry Arnhart said...

An eloquent statement.

Mike said...

Larry, you suffer from TDS. This post absolutely confirms you are not well-centered on any issue associated with Trump.

Larry Arnhart said...


So, where am I mistaken in my reading of Section 3?

Mike said...

BLUF: There was no impeachment; there was no incitement.

All the argumentation here has been sophistry supporting the Trump hatred and anti-populist memeing of the current kakistocracy. The rise of Lawfare is pernicious, obvious. Lawfare was initiated by elements of the modern Democratic Party, and has ever since practiced far more aggressively that their opponents. Lawfare is about power and keeping it by any means; it is not at all about democracy, freedom, or self-rule.

Again: There was no insurrection; there was no incitement to insurrection. What transpired in Congress was entirely political proceeding, ignored all contradictory evidence... and yet the impeachment it did not reach conviction. Conviction would be necessary to establish the basis to remove the president and thus would be the proper due process---even if political---to establish the finding necessary to enforce the Amendment, though that wouldn't make it true justice even if it had somehow occurred... but it might've at least been due process. It wouldn't be justice since there was no insurrection, the acts of January 6 came nowhere near the long understood sense of insurrection---but in any event, the Senate did not convict Trump and remove him from office and the due process to establish guilt was not there (one that is far easier to reach than a criminal jury trial.)

There was little surprise at the Supreme Court ruling other than folks who were unhinged about Trump or losing power in an actual election against a dementia-addled sitting President and a wildly unpopular VP.

The fear of actual populist support for a POTUS seeking to displace even a little of the power of an entrenched bureaucratic ruling class is ironic, given that democracy is literally about popularity. And yet we here the shrieks of talking heads, and apoplectic claims from officials and pundits of several stripes that Trump's election might be the undermining Our Democracy. They have established they are willing to lie baldly, and circumvent law and procedure, in any effort to stop Trump--someone they have demagogued as being literally as bad as Hitler. And who wouldn't do pretty much anything to stop Hitler!l

The argument from authority you used in a previous article falls flat when the federalists that count, as well as quite liberal judges, ruled 9-0 that the states can apply the amendment against state officers and not federal officers.

Mike said...


There is also a technical point on whether the POTUS is an officer of the United States that is enumerated or referred to by Section 3. There is a long enumeration and characterization and it seems to explictly avoid mentioning POTUS. But this is a side issue and only an interesting nuance here, since there wasn't an insurrection by any normal sense of that word, despite the histrionics that ensued immediately.

The bottom line is that the impeachment (but importantly, not conviction, which would have been necessary to remove him from office) was an entirely bogus kangaroo-congress political process by opposition elements within the Democratic and Republic parties to reform.

What is worse, somehow the truly seditious behavior of government and political actors has gone unnoticed, wielding very sensitive government capabilities, against POTUS and his political supporters prior to, during, and after his serving as president.

Your minor premise can be phrased a little more specifically and includes not all Democratic Party members and not only Democratic Party members. But there are factions that fit the minor premise and they are powerful and profoundly anti-democratic.

If the voters in these states think what Trump had done were heinous enough to not vote for him, then he will not get the electors of those states. With enough states like that, he won't be elected. If we are to trust the people to elect the president by weighing the information they receive and voting their interests accordingly, why would anyone even want or feel the need or privilege to bar him from running?

The answer to that question is part of the problem The Republic faces today.

Larry Arnhart said...

After Trump finished his speech at the Ellipse, at 1:10 p.m., the violence at the Capitol raged for over three hours; and Trump sat watching TV coverage of the violence, without ever making a public statement to tell his supporters to stop the violence, leave the Capitol, and go home. He refused to do this although dozens of his political advisers and supporters were begging him to do this. When Trump's Chief of Staff Mark Meadows received many emails and phone calls asking him to persuade Trump to stop the insurrection, Meadows told people that Trump did not want to stop it.

And over the entire day, Trump was never in contact with Pence or others on Capitol Hill to see what he could do to help. Moreover, he never contacted anyone in the Department of Defense, the National Guard, or local police departments to see they could do to stop the rioters. Pence was forced to act on his own in calling for military and police reinforcements to stop the insurrection.

At 2:24 p.m., knowing that the riot was underway, Trump sent this tweet: "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!"

This tweet immediately provoked more intense violence at the Capitol, and many of the rioters started chanting "Hang Mike Pence."

Counselor to the President Hope Hicks texted a colleague that evening: "Attacking the VP? Wtf is wrong with him?"

At 4:17 p.m., Trump finally broadcast a video message asking those attacking the Capitol to leave. He said: "I know your pain. I know you're hurt. We had an election that was stolen from us. It was a landslide election, and everyone knows it, especially the other side, but you have to go home now. We have to have peace." As the words of this message spread through the rioters, they started to leave.

At 6:01 p.m., Trump sent his last tweet of the day, in which he tried to justify and even glorify the violence: "These are the things and events that happen when a sacred election landslide victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever."

"Great patriots"? "Remember this day forever"?

Jim said...

This... deterioration? aberration?... of the Court is more than remarkable, and seemingly not given enough public spotlight.
On a side note - The inane comments to this article, like all other similar comments I hear or read, give rise to several reactions in me: anger, astonishment, despair, fear, sadness. Unfortunately I feel I lack the tools and discipline to have better, more effective reactions. (Good Lord, this puts me in a class with jason.)
I recently glanced over an article by Ajiit Mann about reacting to such "narratives". She makes the distinction between history and poetry, and says "Using history as a weapon against poetry is to use the wrong tools in a misidentified battle space", noting that, for the poetry narrative, "The lack of truth value does not negatively affect its meaning value." She concludes, "To the extent that truth-telling is part of our narrative strategy, it cannot be reactive; we cannot chase our adversaries around matching their lies with the truth because, as recent cognitive science has demonstrated, countering lies by repeating them with the word “no” (or some other negative) attached actually has the opposite effect."

Mike said...

"After Trump finished his speech at the Ellipse, at 1:10 p.m., the violence at the Capitol raged for over three hours; and Trump sat watching TV coverage of the violence, without ever making a public statement to tell his supporters to stop the violence, leave the Capitol, and go home."


Tweets were a far more effective way to reach folks with at best mobile devices than a TV appearance and came much sooner that you have stated.

---- break, break ----

As to "narrative" that is what the leftists and statists still cherish the control of. The use of legacy media, and as much as they can social media, including the kangaroo impeachment process in The House. The ridiculous breaches of contract in shutting down Parler, the ad hoc banning Trump from Twitter, the Ministry of Truth vibes and practices from DHS, FBI, and CIA staff now working in social media orgs and the campaigns and expansion of investments in dis/mis/mal-information narratives, focusing state security apparatus inwards are the threats we face today.

Seems clear that the fig is off the free speech movement, having taken the institutions and moved on to the final deconstruction ("transformation"; i.e., destruction) of America, now wants anything but that.

Larry Arnhart said...

Mike is pointing to these two Tweets:

2:38 PM
Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay Peaceful!

3:13 PM
I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law and Order--respect the Law and our great men and women in Blue. Thank you!