I’ve been teaching Constitutional Law for 40 years, and I am persuaded that Section 3 of the Fourteenth Amendment disqualifies Donald Trump from serving as president again because of his involvement in “insurrection” against the United States. But I’ve been watching the U.S. Supreme Court for the same four decades. Despite the strength of the legal arguments, I expect that most justices will strive to avoid upholding disqualification decisions out of Colorado, Maine, or any other state.
The Court endured searing criticism for its arguably unprincipled truncation of the 2000 presidential election in Bush v. Gore. Half a dozen presidential elections later, the Court will be reluctant to issue an opinion that might register as conspicuous interference in a presidential race.
If I’m right, however, how the Court dodges Trump’s disqualification will be of extraordinary importance. Rather than perform an “originalist” interpretation poorly, an option for the Court is to temper originalism with a bit of deft pragmatic surgery that will do the least harm to the Fourteenth Amendment going forward.
The disqualification decisions out of Colorado and Maine highlight the key questions posed by the Fourteenth Amendment Disqualification Clause. First, did Trump engage “in insurrection or rebellion” against the Constitution of the United States? Second, is the President an officer whose oath to support the Constitution is binding, and is the presidency an office to which disqualification applies? Finally, is the amendment “self-executing”—does disqualification apply automatically—or does Congress first have to enact a statute authorizing a Section 3 disqualification before a state may give it effect?
On the insurrection issue, it would be a travesty for the Supreme Court to reject the Colorado decision by concluding that Trump did not participate in “insurrection or rebellion.” The conservative legal scholars William Baude and Michael Stokes Paulsen have won well-deserved praise for exhaustive research establishing that a criminal conviction is not necessary as proof that an individual engaged in “insurrection.” It is enough, they argue, that a factual record shows an individual abetted “concerted, forcible resistance to the authority of government to execute the laws in at least some significant extent.” The trial court opinion of Colorado District Court Judge Sarah B. Wallace—not to mention the report and record assembled by the January 6 Committee—provides unassailable evidence that Trump crossed this constitutional line. To deny Trump’s role would be nearly as ignominious a lie as the Court’s pretense in the Korematsu case that it was not condoning concentration camps for Japanese-American U.S. citizens.
Professors Baude and Paulsen have also, along with constitutional scholars Gerard Magliocca and Mark Graber, shown that presidents are “officers” covered by the Disqualification Clause. The idea that the Radical Republicans of 1868 who crafted the Fourteenth Amendment would have left the nation’s highest office available to insurrectionists is absurd. For the Supreme Court to embrace the idea that insurrectionists can become president would mock the “originalist” interpretive enterprise.
Baude and Paulsen also demonstrate that the Disqualification Clause was intended to be self-executing—that is, Congress did not need to pass a specific statute to make it law. The Fourteenth Amendment allows Congress to lift disqualification by a vote of two-thirds in each House–but says nothing about a need for enabling legislation. As Garrett Epps, the law professor and Washington Monthly legal affairs editor, has pointed out, requiring a supermajority to lift disqualification was to make it impossible for a later bare majority to restore traitors’ rights. Yet, insisting that the Disqualification Clause requires prior enabling legislation would allow a bare majority to let insurrectionists off the hook by refusing to enact an enforcement statute–or by repealing one.
For almost all the offices closed to insurrectionists under the Fourteenth Amendment, the Clause’s self-executing nature is important and unproblematic. It is important because, even though Trump was the most prominent insurrectionist leading to the debacle on January 6, he was but one among hundreds, if not thousands. Neither the nation nor any state should wait for Congress to act before a former oath-taking state or federal official who stormed the Capitol or who aided and abetted the scheme of electoral sabotage is barred from future office-holding.
Procedures for implementing the self-executing clause are also almost always unproblematic. That is because, except for the president and vice-president, each of the other affected positions—every other candidate running to be a “Senator or Representative in Congress, or elector of President and Vice-President,” and every would-be holder of “any office, civil or military, under the United States”—is subject to a single, unified decision-making hierarchy that can determine if the disqualification applies.
By contrast, the cases now going forward illustrate the complexities that arise in applying Section 3 to our multi-jurisdiction electoral process for choosing the president and vice president. For example, Colorado’s Supreme Court held that state law permits challenges to be raised to a candidate’s inclusion on a primary ballot. Under Michigan law, it appears that only general election challenges are possible. Given that 50 states and the District of Columbia all have their own disqualification processes resolving this critical controversy in a consistent way is challenging. Should the Supreme Court uphold the Colorado judgment, what would follow is not apparent. Would other states be bound automatically? If electors remained pledged to Trump, would they be disqualified? Would the House be authorized to disregard any electoral votes cast for Trump based on its own determination as to disqualification?
Given these complexities, a Supreme Court determined not to uphold any single state’s judgment disqualifying Trump could still find an elegant solution. It might say that, concerning the offices of president and vice-president and those offices only, Section 3 requires a national implementing statute. This would not represent an exoneration of Trump. It would also not require that the presidency remain open to insurrectionists. It would not require a federal statute to bar other insurrectionist former office-holders from occupying any positions within Section 3’s purview. It would merely insist that, because of the unique complexities of electing the president and vice president, the Disqualification Clause can operate on national candidates only under a process prescribed by Congress.
Let’s assume that, as I suspect, a majority of Justices would find the practical virtues of this approach appealing. The problem they would face is that its reasoning is not, within the Court’s own terms, “originalist.” It is instead a pragmatic reading of Section 3 that balances the Fourteenth Amendment’s original purposes, the complexities of our federal system, and the Court’s struggle with legitimacy in the wake of Bush v. Gore. The last of these could not have been within the imagination of the drafters and ratifiers of 1868. My suggestion would be to interpret Congress’s Section 5 “power to enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, read in conjunction with the obligations of due process, as imposing on Congress an affirmative obligation to legislate, where necessary, to optimize the practicability of that Amendment’s enforcement. Concerning presidential and vice-presidential elections, that necessity arguably exists. For other offices, it does not.
Like Professors Baude and Paulsen, I would much prefer that all relevant actors, including the Supreme Court, honor the command of Section Three of the Fourteenth Amendment and prevent Donald Trump from regaining the presidency. Disqualifying insurrectionists is no less a constitutional obligation than barring naturalized citizens, thirty-year-olds, and would-be third-termers. But should the Court think this not the occasion, I hope they will take a pragmatic approach that leaves the Fourteenth Amendment self-executing for all other covered offices–and avoids even suggesting that Trump’s conduct was less than traitorous.
