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?