Not only did Otto Von Bismarck not say that God takes care of drunks, fools, and the United States, but the underlying proposition is far from true. Luckily, in the present crisis, the nation’s interests are being overseen by a heavenly chorus of eminent academics, famed opinion writers, and newspaper editorial boards—and in the wake of the Colorado Supreme Court’s 4-3 decision barring Donald Trump from the state’s primary ballot, many of these angelic voices have come together to warn us all that under no circumstances should Section Three of the Fourteenth Amendment form any obstacle to Trump’s 2024 “Terminate the Constitution” victory tour.
Not long ago, Section Three of the Fourteenth Amendment—which forbids anyone who has taken an oath to support the Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” to “hold any office, civil or military, under the United States”—was a decidedly fringe question, pressed into a reluctant national dialogue by some very reputable Fourteenth Amendment scholars (including Monthly contributor Gerard N. Magliocca of Indiana University) and progressive activists including Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech for People. The activists brought civil suits against some Republican politicians, such as Representative Marjorie Taylor Green, but, for various procedural reasons, succeeded only in disqualifying one—a county commissioner in New Mexico convicted of taking part in the January 6 assault on the Capitol. They continued to press state election officials to bar Trump from local ballots, and they went to court when the officials refused.
The denial dam began to leak in August of this year, with the publication of what I confidently predict will be rated the most important law-review article in American history, “The Sweep and Force of Section Three,” by two unshakably conservative scholars, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, which argued that the question was not even close—Trump was ineligible to run or to serve in any federal office after his role on January 6.
Other eminent voices—including that of Harvard Law School’s eminence grise, Laurence Tribe, and former federal Judge Michael Luttig, the most conservative judge I have ever worked with—took up the call. Trump’s actions in summoning and agitating the assault—a violent attempted coup by a far-right faction that would not accept an election loss—were, they argued, precisely the kind of actions the Framers of the amendment had in mind as they sought to keep power out of the hands of Southern traitors at the end of the Civil War.
Then, on November 17, a Colorado trial judge, in a remarkable feat of judicial acrobatics, held that Trump had, in fact, “engaged in insurrection” but that Section Three applies to every federal office or elected position—and every state office as well—except the presidency. Presidents, she reasoned, are quite free to try to overthrow the Constitution and run for another term.
With admirable speed, the Colorado Supreme Court heard arguments on the appeal and held, 4-3, that the lower court was partially correct—Trump was an insurgent—and partly wrong—presidents are not immune from Section Three. The majority held that Trump cannot be on the state’s primary ballot this spring or the general election ballot in the fall.
The deluge is upon us, and hopefully, the U.S. Supreme Court will tackle this issue soon. Fondly may we hope, and fervently may we pray that this morally compromised, crudely packed partisan assembly of jurists will take their responsibility seriously and offer a principled and careful resolution to what may be the most crucial question the institution has ever resolved.
In the interim, however, the study of the Fourteenth Amendment has now come to resemble the science of COVID-19, in that anyone with a keyboard is now officially an expert on what it really means. Having studied the Fourteenth Amendment for a quarter-century, I am grateful that all these newcomers are here to set me and other specialists straight—especially those who, having thought about it for the hours between newsbreak and deadline, are assuring us that this is such an easy case that the Supreme Court should toss it 9-0. Believe it or not, this is a complicated issue, and you should distrust anyone who tells you it’s easy or clear. Remember that the Colorado court’s careful 213-page opinion was decided only by a 4-3 margin, by justices all appointed by Democratic governors.
It’s a damned hard question, and getting it right is essential.
Though I don’t, at present, know the right answer, I can see already that the flood of new experts is offering us several ways to clear this obstacle out of Trump’s way, most of which are, as near as I can tell, demonstrably wrong. So rather than tell you the correct answer, I will take a few minutes to summarize the wrong answers now being pressed upon a bewildered public by our new-hatched experts.
Here are the wrong answers:
The president is not an “officer” and thus isn’t covered by Section Three. This was the off-ramp taken by the Colorado trial court, and in the wake of the state supreme court decision, it is being urgently pressed upon us by many scholars, including a few whose work I admire. As far as I am concerned, however, it is sufficiently wrong to be almost silly. I will admit that the linguistic analysis on which it is based, which draws on historical sources to find that an “office” doesn’t require an “officer” to fill it–is adroit; it puts me in mind of the acrobatics displayed by daredevils who walk tightropes between tall buildings just to show that they can do it. I see no evidence that the Amendment’s framers and the public that supported its ratification wanted the Presidency to remain open to traitors—and I know a lot of evidence that that precise question was on their minds. As Abraham Lincoln used to say, this particular plow won’t scour.
Trump has not been criminally convicted in a court of law. This has more surface plausibility than the “president-not-an-officer” argument. Insurgency is a crime, and several January 6 rioters have been convicted of “seditious conspiracy” for their role in the Capitol assault. Trump has not been convicted of any crime. “The 14th Amendment was written to guarantee due process to all Americans, not to deny it,” the Wall Street Journal asserts. This is a serious argument, but one that I think is undone by a brief outline of the Fourteenth Amendment’s history, especially in Section Three. After the assassination of Abraham Lincoln, Andrew Johnson—a Southerner, a former enslaver, and a rabid white supremacist—became president and began using the presidential pardon power to block any prosecution of the leaders of the Confederacy, whom he may have been hoping to recruit for a presidential run in 1868. This massive abuse of the pardon power was the precise reason why Section Three must have seemed urgent to the Republican leaders in Congress, and Section Three is a very striking response. It marks the only amendment to the Constitution that explicitly limits the president’s power in any area. If, however, Section Three could only be enforced against Southern traitors who had been convicted of the crime of sedition, it could not have been enforced at all—since the traitors it was aimed at had already been rendered immune from prosecution or conviction by presidential pardon.
What, then, is the “due process of law” argument? Take a serious look at the proceeding in Colorado District Judge Sarah B. Wallace’s courtroom. After extensive pretrial motions concerning the underlying law and the admissibility of evidence, the court conducted a five-day trial from October 30 to November 3 of this year, during which it heard both expert and percipient witness testimony and considered a wide swath of documents, including the January 6 House Report and its extensive documentation of the events at the Capitol. Trump’s lawyers, the judge noted, spent a good deal of time attacking the supposed bias of the January 6 Committee—but “he spent almost no time attacking the credibility of the Committee’s findings themselves.” Judge Wallace entered 35 pages of detailed findings of fact and concluded by a “clear and convincing evidence” standard that Trump had, in fact, engaged in insurrection within the meaning of Section Three. Whatever the Supreme Court does with this case, those factual findings are an indelible mark of Trump’s treachery, which no glib talk of “due process” can erase.
The January 6 riot was not officially an “insurgency.”I haven’t seen this one floated yet, but a skilled lawyer would certainly seize on it. On April 15, 1861, Abraham Lincoln, in Proclamation 80, announced that “the laws of the United States have been for some time past and now are opposed and the execution thereof obstructed” in the seceding states “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by law.” This was the legal basis for the president’s emergency actions to crush the Southern rebellion over the next four years. There was no official proclamation that January 6 was such a “combination.” But it seems insupportable to suggest that if a sitting president decides to lead a coup d’état, it cannot be an insurgency unless he proclaims himself an outlaw. Insurgency is most properly regarded as a matter of fact, not of form, and to deny the treasonous nature of January 6 would be more sinister than absurd.
Congress has not passed a statute enforcing Section Three.This argument has at least the advantage of some precedent—Chief Justice Salmon P. Chase’s 1869 circuit opinion in Griffin’s Case. In that case, a Black defendant challenged his conviction of attempted murder by a Virginia court presided over by a state judge who had been a federal official, then betrayed his oath to serve the Confederacy. Griffin argued that the judge was thus legally not a judge, and his conviction was void.
Chase rejected that claim, holding that Section Three did not apply because Congress had not enacted a statute to enforce it. Chase heard the case as a circuit judge, so Griffin’s Case is not Supreme Court precedent. Baude and Paulsen are quite scathing about the opinion (“Chase’s legal reasoning that the Fourteenth Amendment is not self-executing is unsustainable. Indeed, the more one pulls at his opinion, the more it unravels.”) and Chase was probably the most unprincipled scoundrel ever to sit in the Chief’s chair (he managed to float himself as a possible presidential nominee—of either party—while in office). The requirement of an enforcement statute sits oddly with the text of Section Three, which provides that “Congress may by a vote of two-thirds of each House,” restore an insurgent’s political rights. Clearly, the intent (as, indeed, the purpose of most of the Fourteenth Amendment) was to make it impossible for a later bare majority to restore all traitors’ rights by simple majority vote; it would seem odd to suggest that the provision could be stymied by such a bare majority repealing, or refusing to pass, an enforcement statute. Nonetheless, the Griffin’s Case argument is an actual legal argument, which sets it apart from the final, most pernicious set of arguments:
It is bad for democracy; the voters should decide; it will alienate Trump’s voters further. Eric Posner, a prominent professor at Baude’s home school, the University of Chicago, put this argument against the invocation of Section Three succinctly in an interview with Slate’s Dahlia Lithwick:
Are these efforts going to backfire and help Trump? Or, even if they’re successful, are they just going to cause long-term damage because half the population, or 40 percent of the population, feel like they’ve been disenfranchised? Maybe Republican officeholders will feel that now they have a basis for retaliating against Democrats. And it’s not that one shouldn’t bring these sorts of claims. It’s that one should do that while also thinking about these types of political and pragmatic effects.
This argument is an entirely plausible one. Yes, Trump’s supporters will feel alienated if he is excluded from the ballot. On the other hand, millions of others and I will feel jolly alienated if the Court tells us that politics require he be allowed to run again and win. It’s far from clear to me why one alienation is more privileged than the other.
The Fourteenth Amendment is the crown jewel of our antiquated Constitution, purchased with much blood and treasure—more than Americans of any other generation have been asked to sacrifice. The authors of Section Three were deadly serious in their determination to keep the government out of the hands of traitors and rebels.
So, they put in their handiwork language barring those rebels from serving until and unless Congress—not the president and not the courts—pardoned them. They weren’t writing talking points or guidelines; they were writing law.
The exclusion of Trump from the ballot may have harmful political consequences. But harmful political consequences don’t excuse violations of the law. If a 30-year-old or a naturalized citizen sought a place on the ballot, we wouldn’t worry about how their supporters would feel; the candidate wouldn’t be qualified. The Insurrection Clause is no less the “supreme law of the land” than Article II Section 1 Clause 3, which lays out the age and citizenship requirements.
Calculating partisan consequences isn’t part of enforcing the Constitution. I can foresee dire consequences if Trump is barred from the ballot, but, on the other hand, we seem likely to find ourselves in a hellscape of concentration camps and military rule if he runs and prevails. The destruction of American democracy is a dire consequence too.
And lurking in the background of this “bad consequences” argument is the besetting political blasphemy of our time—that law is for little people. It must never prevail against massed wealth or ruthless political power. The vicious dimwits who assaulted our Capitol are being duly ushered into the nation’s prisons—but at the same time, we are being told that some traitors are, like some big banks, too important to be held to account. This horror at the very idea of bringing power to account is part of a rot spreading across society as inequality becomes more and more not simply the American norm but the central value of American life. When the Courts move to block any limits on the wealthy and any consequences from high officials who lie and steal, the spectacle corrodes the nation’s soul. To create special rules for Donald Trump would be to perfect the assault he has mounted on American law.
My most fervent hope is that this Court, much against its inclination, sees this case as an opportunity to rebuild its once-sterling reputation. Hear the case soon; listen to the arguments; decide on something other than shreds of law-office history and Fox News sound bites. The justices are paid to decide important cases; this may be the most important one they will ever face.
