Section 3 of the Fourteenth Amendment disqualifies from a wide range of State and federal offices individuals who took an oath to support the Constitution and then “engaged in insurrection or rebellion” against the United States or gave “aid or comfort” to its “enemies.” In Trump v. Anderson, the Supreme Court unanimously reversed a Colorado Supreme Court decision holding that section 3 disqualified Donald Trump from running for president.
What to make of this decision?
Putting aside for the moment its legal merits, there’s much to be said for the outcome. As the opinion observes, allowing individual States to strike federal candidates (particularly presidential candidates) from the ballot under section 3, probably applying different legal and evidentiary standards to determine whether they “engaged in insurrection,” could produce a “patchwork” of results creating chaos in elections. Invoking section 3 to challenge candidates once elected and even serving in office would be still more chaotic.
Disqualifying the odds-on favorite to be the presidential nominee of a major party also would be a tremendous shock to the political system. But the consequences of injecting section 3 into our ever more toxic politics go beyond Trump and the 2024 election. Attempted disqualification would likely become a popular new form of lawfare in many future elections, especially given the “sweeping” scope its leading advocates, such as law professors William Baude and Michael Stokes Paulsen, attribute to the term “insurrection.”
All this would be based on resurrecting an obscure constitutional provision enacted with a specific purpose in mind—barring from office Confederates who waged war against the United States—that was accomplished over a century ago and extending it far beyond its original context. The potential consequences of affirming the Colorado decision were so extreme that even many Trump opponents had qualms about it and hardly anyone expected the Supreme Court to uphold it.
As a practical matter, the Supreme Court’s decision appears to return section 3 to the mists of history with regard to the presidency and every other federal office.[1] The Court specifically held that States could enforce section 3 against their own officials. All nine Justices agreed that States could not enforce section 3 against federal candidates and officials. To the consternation of four Justices, the other five went further and seemingly concluded that additional congressional legislation would be needed to enable even federal enforcement against federal candidates and officials. Given Congress’s dysfunction and gridlock, it’s extremely unlikely that Congress could enact such legislation.
While the practical considerations underlying the Court’s decision may be compelling, its legal reasoning is not. The unanimous holding that States cannot enforce section 3 against federal candidates seems wrong on many levels. By its terms, section 3 clearly appears to be self-executing in the sense that disqualification attaches automatically to those it describes:
“No [such] person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State.” (Emphasis added)
The final sentence of section 3 reinforces this conclusion by authorizing Congress to “remove” the “disability” that it imposes.
Section 5 of the Fourteenth Amendment empowers Congress to enforce its many provisions by appropriate legislation. However, it does not explicitly or implicitly preclude State enforcement as well. On the contrary, with exceptions not relevant here States share both the power and the obligation to enforce the Constitution. Article VI, clause 3 requires State officials to take the same oath as their federal counterparts to support the Constitution.
In fact, States regularly enforce the provisions of the Fourteenth Amendment and many other constitutional provisions including those governing eligibility for federal elective office such as age, citizenship, and residence requirements. Enforcing section 3 obviously differs in complexity but not in kind.
The Court reasons that the Fourteenth Amendment was enacted to enhance federal power at the expense of State authority and, therefore, it would be “incongruous” to read it “as granting to the States the power—silently no less—to disqualify a candidate for federal office.” But by excluding a federal candidate from the ballot based on section 3 a State does not exercise its own power to “disqualify” that candidate; it simply enforces a disqualification already imposed by the federal Constitution.
The Court makes much of the fact that States almost never[2]Only once, according to the Court. enforced section 3 against federal candidates (as opposed to State candidates) in the early years following ratification of the Fourteenth Amendment. However, the absence of State enforcement likely stemmed from a lack of enthusiasm for this task rather than a perceived lack of authority. (All but one former Confederate State initially refused to ratify the Fourteenth Amendment.) Indeed, congressional enactment of legislation mandating enforcement of section 3 was apparently based on dissatisfaction with State enforcement efforts.
Finally, as the concurring opinion of Justices Sotomayor et al. points out, the five Justices who concluded that section 3 cannot be enforced even federally without additional congressional legislation offered “next to no support” for this conclusion.
In sum, the Court’s legal conclusions run counter to the Constitution’s text, structure, and logic and are thoroughly unpersuasive. However, there is a more straightforward and legally defensible (“originalist” even) rationale to support the decision’s outcome: The case that Trump “engaged in insurrection” is too weak to trigger disqualification under section 3.
There is widespread agreement that the January 6 attack on the Capitol was disgraceful and Trump’s conduct was despicable. However, whether this rose to the level of an “insurrection” for purposes of section 3 and if so whether Trump “engaged” in it pose difficult legal questions.
Legal definitions of “insurrection” at the time section 3 was enacted and now are arguably broad enough to be made to fit the events of January 6. Baude and Paulsen describe the term “insurrection” as “capacious” and define it as “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”[3]See page 676 of their previously linked article. However, if insurrection under section 3 sweeps this broadly it would encompass a host of actions that impede governmental functions in some way, such as garden-variety protests that often feature some violence and law-breaking. Baude and Paulsen assure that their definition “requires something more than a mere spontaneous, disorganized ‘riot’” but offer no clear criteria to draw the line.
A very broad interpretation of “engaging in” or inciting insurrection would also implicate free speech rights in many contexts. Moreover, as this case illustrates, the consequences of invoking section 3 are severe, anti-democratic, and potentially very disruptive to our political system. Notably, Congress removed section 3’s disability from all Confederates not long after its enactment.
The foregoing considerations argue for a more circumspect approach that would construe these terms, at least as used in section 3, with a view toward section 3’s original purpose and context. Section 3 was enacted with a singular focus on the Civil War and Confederates who sought the dissolution of the United States by force of arms. Invoking it should be limited to actions bearing some significant resemblance to this in kind if not in magnitude—e.g., a concerted, violent undertaking that constitutes an attack on the United States itself.
Reprehensible as it was, the January 6 debacle hardly fits this description. It was a raucous, disorderly, loosely (if at all) organized protest that degenerated, apparently largely spontaneously, into a riot in which some (but not most) participants engaged in violence. However, it did not approach, either by design (if indeed it had any) or execution, a serious effort to overthrow the government.[4]See here and here for more background. On the contrary, it more closely resembled the kind of “spontaneous, disorganized riot” that Baude and Paulsen say falls outside the scope of section 3.
Likewise, treating Trump’s words and actions (reckless as they were) as engaging in or inciting insurrection is a stretch under contemporary First Amendment case law. Doing so could have chilling effects in many other contexts. It’s surely relevant in this regard that federal prosecutors who have been extremely aggressive in pursuing January 6 criminal cases declined to charge Trump or any participant in the January 6 attack with the federal crime of “insurrection” (18 U.S.C. 8323).
The many potentially far-reaching negative consequences and practical complications that section 3 poses, as acknowledged by the Court and discussed previously, further support setting a high bar for its application.
Nevertheless, the Court was clearly determined to avoid the insurrection issues at all cost–probably for understandable if intellectually suspect reasons. For one thing, the issues are messy factually and legally. For another, the Colorado courts developed a substantial record on these issues and it would have been awkward for the Court to summarily reverse them on it.
Perhaps most significant if speculating about the Justices’ motives, the issues of whether January 6 constituted an “insurrection” that Trump “engaged in” are as politically polarizing as they are legally fraught. No doubt the Court would have faced much more internal and external controversy by biting the bullet and addressing these issues than by retreating to the facile approach it adopted. Indeed, a decision based on the insurrection issues probably would have fractured the Court and subjected it to major criticism however it came out.
In the final analysis, one pundit observed of Trump v. Anderson:
“The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated. But let’s not kid ourselves that this was originalism. It was not.”
Fair enough, but there are two downsides. One is that the Court apparently gutted enforcement of section 3 in response to any future event that might bear a closer resemblance to the type of insurrection that prompted its enactment. Hopefully, the chances of such an event are exceptionally remote but who can be confident of that given the depths to which our politics and public discourse have fallen.
The other, more practical downside is that the Court leaves dangling the polarizing question of whether Trump is indeed an oath-breaking insurrectionist who should be constitutionally ineligible for the presidency even if there is no clear means to disqualify him. If Trump wins the election, this question is sure to hang over him and further erode our politics.