Common Sense in Disqualification

In the case of Trump v. Anderson, the Supreme Court recently heard arguments whether or not our Fourteenth Amendment disqualifies Donald J. Trump from the presidential ballot in Colorado as an insurrectionist. Summaries of the justices’ questions and responses to the arguments appeared in many news media.

I’m an ex-Ph.D. physicist who attended Harvard Law School, served as Articles Editor on the Harvard Law Review and became a lawyer. Then I taught law for 24 years before retiring.

Never in my 32-year legal career have I experienced such intellectual revulsion as in reading those summaries. It seemed to me that nearly all the justices who spoke focused on politics, not the law, and that those who focused on the law focused more on legal trivia than on the origin and purpose of the Fourteenth Amendment.

Let’s start with the Amendment itself. Our Bill of Rights arose out of our Pyrrhic victory in our six-year-long Revolutionary War. But our Fourteenth Amendment was the product of an even more brutal war. In fact, it derived from the most brutal and bloody war ever fought on our own territory. Almost as many Americans perished (over 600,000) in our Civil War as died in all the other wars in our history, including our Revolutionary War and both World Wars.

So to say that our Civil War and its aftermath were “formative” events in our nation’s history would be an understatement. They were more like a Second Founding.

The Civil War produced three Amendments to our Constitution. The Thirteenth abolished slavery and involuntary servitude (except as punishment for crimes). The Fifteenth guaranteed the right to vote against infringement by federal or state action “on account of race, color, or previous condition of servitude[.]” Together, these first and last of the three abolished slavery and guaranteed former slaves (and those who look like them) the right to vote.

But the Fourteenth Amendment has much broader sweep. It’s much longer and filled with new substance. That’s why some historians and legal scholars consider it a Second Founding all by itself.

Section 1 gives citizenship, both federal and state, to all persons “born or naturalized in the United States.” It also guarantees all citizens the Constitution’s “privileges and immunities” as against State action. Next it guarantees to “any person” the so-called “due-process” rights—rights against deprivation of life, liberty or property without due process of law. This guarantee alone has led the Supreme Court to view many rights in our Bill or Rights as guarantees against both state and federal infringment. Finally, Section 1 gives any person within US jurisdiction the right to “equal protection of the laws.” It thus provides even aliens living within our borders minimal human rights and equal protection under our law.

Section 2 requires representatives in Congress to be apportioned according to the several States’ whole populations, “excluding Indians not taxed[.” It thus erased the rule in our original Constitution that each Black slave counted as only three-fifths of a person. The rest of Section 2 purports to reduce any State’s representation in Congress in proportion to the number of its over-21 male inhabitants denied the right to vote other than for rebellion or crime. To my knowledge, this provision has never been invoked. Yet it reflects how the Fourteenth Amendment’s drafters expected and predicted precisely the “race”-influenced whittling away of voting rights that persisted long after the Civil War and continues even today.

Section 3 is the “Disqualification Clause.” It precludes a “person” from holding any listed federal or State office, who “having previously taken an oath” for such an office “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.” I have analyzed the Disqualification Clause at length in another essay.

Section 4 validates the “public debt of the United States . . . including debts incurred for payment of pensions and bounties for services in suppressing insurrection and rebellion.” At the same time, it invalidates debt “incurred in aid of insurrection or rebellion against the United States,” and “any claim for loss or emancipation of any slave.”

Section 5 gives Congress the power to enforce all these provisions. But it does not require congressional action for enforcement. As noted in my earlier essay, the Supreme Court, in numerous cases involving Section 2, has found the Fourteenth Amendment’s provisions self-enforcing.

These short summarizes reveal the Fourteenth Amendment’s broad scope and reach. It made a complete revision of our nation’s constitutional framework after the worst rebellion and most brutal war ever fought on our own territory. It reformed our rights to citizenship. It extended our human rights and our voting rights. It revised our apportionment of representatives in Congress and our state and federal public debt. Under the Disqualification Clause, it denied the right to hold public office to previous office holders who have participated in insurrection or rebellion.

Like all amendments under Article 5 of our Constitution, the Civil War Amendments were “proposed” by a two-thirds vote in both the House and the Senate and then ratified by three fourths of our all respective State Legislatures. These triple supermajorities reflected the gravity and the importance of our Fourteenth Amendment as a Second Founding.

So what did the justices do with all this in oral argument over Trump v. Anderson? They nit-picked Section 3, the Disqualification Clause, as if it were fine print in a warranty for the sale of a used car, rather than part of a foundational document that reformed our whole governmental structure and approach to civil and human rights in the aftermath of the bloodiest war ever fought on our own territory.

How so? Let me count the ways.

First, some justices questioned whether the Disqualification Clause applies to candidates for President of the United States. Some went so far as to cite the work of an obscure law professor, now teaching in Ireland, arguing that Americans at the time did not use the term “officer of the United States” as including the president.

Really? Jefferson Davis had been President of the Confederacy and, as such, a chief rebel in our Civil War. He lived until 1889. Can anyone imagine that he would have been allowed to run for the presidency in 1868, when former Union General Ulysses S. Grant beat Horatio Seymour, the Democrat, to succeed the impeached but not convicted Andrew Johnson? The men who drafted, adopted and ratified the Disqualification Clause would have run Davis out of the Capital on a rail, suitably tarred and feathered. (They were all men in those days; women didn’t get the right to vote until 1920.)

Second, the justices sparred with advocates over whether the Disqualification Clause is self-enforcing, or whether it requires some sort of congressional legislation to enforce. Again, really? Congressional “consent” came with the two-thirds supermajority of both Houses then (and still) required to amend the Constitution. That’s among many reasons why Section 2 of the Fourteenth Amendment, which most resembles a second Bill of Rights, has been repeatedly enforced judicially without further congressional authorization, just like our original Bill of Rights.

Third, some justices quoted the Disqualification Clause’s precise language, noting that it only prohibits an insurrectionist from “holding” the presidency, not from running for it. This approach to ducking the issue is practical idiocy of a high order. If one worries about political division and a second civil war, what is more likely to provoke one? a disqualification of Trump from running for the presidency, or a ruling that he can’t hold that office after he wins it in what is likely to be the most contentious election in our history, and after all his supporters have been denied the chance to select a suitable substitute?

Doesn’t that question answer itself? Letting him run but denying him the office if he won would be tantamount to shoving his legal disapproval in the faces of the tens of millions of people who had already voted for him, actually thought they had elected him, and no longer had any alternative.

None of these approaches is serious. Immunizing Trump from disqualification on the ground that the Disqualification Clause doesn’t apply to the presidency, that it requires something else for enforcement, or that it doesn’t disqualify him from running would not only enrage his opponents. It would immeasureably strengthen the distrust and contempt that many ordinary people already feel for lawyers and judges. It would cause the Supreme Court’s crumbling reputation as a sensible and reliable arbiter of our highest law to fall over a cliff. And it would convince every college-educated citizen that the Court’s primary goal in applying the Disqualification Clause was to duck responsibility for deciding what may be the most important case ever to come before it—one that may determine whether our nation remains a democracy.

So if the Court wants to do its constitutional job, and not duck its most important duty, what must it decide? There are only two real legal issues. First, did the events of January 6, 2021, coupled with their planning, incitement, execution and consequences—including the Big Lie of the “Stolen Election” that Trump and many Republicans maintain to this day— constitute an “insurrection” or “rebellion”? Second, if so, did Trump’s participation in, encouragement of, and incitement of those events—including his inaction for hours during the fateful day and evening and his maintenance and encouragement of the Big Lie to this day— constitute “engaging in” or “giving comfort to” an insurrection or rebellion?

Unbeknownst to most non-lawyers, both these issues are “special” in a peculiar sense. They are not purely legal issues at all. Rather, they are mixed issues of law and fact, just like negligence in an auto accident case. The “legal” part is the precise definition of what constitutes “insurrection” or “rebellion” and “engaging in” or “giving comfort to” one. The factual part is deciding, based on evidence admissible in court, what Trump and his followers actually did before, on and after January 6, 2021, and whether those facts fit those definitions.

An appellate court, let alone the Supreme Court, has no direct jurisdiction over the factual part of this puzzle. Article III, Section 2 of our Constitution makes crystal clear that our Supreme Court has “original” (i.e., trial) jurisdiction only over a specific set of cases, none of which involves application of the Disqualification Clause. So all the Supreme Court’s constitutional purview permits is policing the outer edges of the definitions of “insurrection”, “rebellion,” “engaging in” and “giving comfort to” i.e., the legal boundaries of what those words mean. Applying the Court’s boundaries to the facts is the job of federal district courts (including juries), state trial courts, and state and federal administrative tribunals.

The justices’ reported questions and remarks during oral argument made absolutely clear that they are desperate to avoid deciding. They twisted and turned in every direction to duck a substantive decision. They would love to disqualify the disqualification process on procedural or structural ground, without ever addressing the fundamental substantive question that the Disqualification Clause poses: did Donald J. Trump engage in or give comfort to an insurrection or rebellion against the Constitution of the United States?

But as Chief Justice John Marshall once said in establishing the Supreme Court’s legal supremacy, it is the Court’s function to decide “what the law is.” It cannot duck that responsibility on procedural or structural ground. At least it can’t without totally destroying what remains of public trust in it as an institution, and perhaps becoming complicit in the loss of our democracy. Insofar as concerns final interpretation and application of the law, “The buck,” as Harry Truman said of his presidency, “stops here.”

Will the Court do its job? Or will it duck its constitutional responsibility in an historic case with powerful implications for the survival of American democracy and the Western Enlightenment?

The justices’ desperate twisting and turning during oral argument provide no cause for optimism. They seem cowards all. They seem desperate to avoid making a decision that will anger tens of millions of voters, even at the cost of seeing a half-crazy narcissist, ready now with much better plans for despotism, crush our 248-year-old experiment in popular democracy under his heel. They seemed almost eager to welcome that result, as long as they are not blamed for it. They focus on legal technicalities while the world burns.

The drafters of the Fourteenth Amendment had other ideas. They bequeathed us clear law to keep insurrectionists and rebels from ascending to high office a second time, in either the federal or any state government. They got that law approved by two-thirds of each House of Congress and the legislatures of three-fourths of the States at the time. Their voices cry out over the words they wrote, and over the dead bodies of some 600,000 Americans: “Don’t let it happen again!”

The good justices may think they can duck responsibility for making the decision that landed on their desks. But they can’t. If Trump runs and wins, and our democracy dies (and with it the Western Enlightenment), many will know. The millions who ultimately will flee the United States for remaining developed democracies will know. Their families will know. (Perhaps some of the justices and their families ultimately will be among them.) Foreign observers will know. History and historians will know.

And the justices’ cowardice will cement for all time the notion that the judicial branch is indeed the weakest and least reliable of all. Future nations may even omit a constitutional court from their governmental structures entirely, seeing it as a useless appendage of strongmen.


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