The Constitution Turned Upside Down

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Donald Trump speaking at Mar-a-Lago after the Supreme Court ruled that he can appear on the ballot during this year’s presidential election, Florida, March 4, 2024

In one of the Supreme Court’s most sweeping rulings in modern times, a five-man majority has effectively nullified a critical provision of the Fourteenth Amendment of the Constitution of the United States. The “oathbreaking insurrectionist” Donald Trump—a designation unchallenged by either the Supreme Court majority, the Colorado courts, or even his attorneys—will never be disqualified from the presidency. Nor will any other insurrectionist whose partisans control a majority in Congress. A trio of more liberal justices, in a concurring judgment, eviscerated the historical and constitutional basis for the majority’s nullification, but joined in the result only, based on erroneous jurisprudence of their own. The ninth justice, a conservative, clung to the same reasoning as the liberal trio, but because she objected to their “stridency” she issued a separate opinion that tries to conceal the majority’s disgrace.

The lead of any story about the decision in Trump v. Anderson should be that the Court has unanimously ruled that an insurrectionist who attempted to overthrow a presidential election will remain on the presidential ballot. As far as it goes, that statement is accurate. But the brazenness with which the majority exercised its power to reach a decision in flagrant contradiction of the Constitution’s plain meaning has deeper significance. It offers final proof, if any more were needed, that textualism and originalism, the doctrines on which conservatives have long based their judicial philosophy, are nothing but instruments of right-wing activism to produce prearranged outcomes. On Monday, the Court severely weakened an essential constitutional barrier to violent despotism that had been erected in the aftermath of the Civil War. That the minority decided to issue what might be called a dissenting concurrence—quickly agreeing on a particular point while demolishing the majority’s main argument—only underscores how corrupt the Court’s majority has become.

Let us start with the assertions about which all the justices agreed. This past fall, the courts of Colorado took up a complaint from a group of Republican and unaffiliated voters, who contended that Trump should be disqualified from the presidency under Section 3 of the Fourteenth Amendment. The state supreme court agreed, and removed Trump from Colorado’s ballot, which left it up to the Supreme Court to determine whether that decision had been unconstitutional. The Court evidently decided that it could safely rule on whether a state court has the authority to disqualify a presidential candidate under the Fourteenth Amendment, while sidestepping the substantive issue of whether the amendment disqualified Trump. All nine justices signed on to that straitened ruling, agreeing, as the majority decision put it, that individual states are empowered to enforce Section 3 “to disqualify persons holding or attempting to hold state office” but not “with respect to federal offices, especially the Presidency.”

There is no constitutional basis for this decision, either in the Fourteenth Amendment or anywhere else. The justices instead offered their own gloss. Like the other two amendments ratified during Reconstruction, they argued, the Fourteenth expanded federal power over state sovereignty. The liberals, echoing the majority, explained that Section 3 “marked the first time the Constitution placed substantive limits on a State’s authority to choose its own officials. Given that context, it would defy logic for Section 3 to give the States new powers to determine who may hold the Presidency.”

This is a startling misrepresentation. Section 3 states: “No 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” who had previously taken an official 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 be sure, the section bars insurrectionists from holding state office. But its main purpose—and the only purpose relevant to the Trump case—is not to curtail state sovereignty but to protect the federal government by disqualifying insurrectionists from holding federal office. It defies logic and the Constitution itself to deprive the states of the power to enforce that protection.

It also defies Article II of the Constitution, which gives the states authority over selecting electors for the presidency. Anyone who wishes to be a candidate for the presidency must, consonant with the Constitution, meet numerous state requirements, including being qualified to hold the office. Under those terms, an individual state may bar any candidate it deems disqualified by the Constitution, if only to protect its voters from supporting someone ineligible to serve. As many scholars and legal experts argued in a variety of amicus briefs, to deny the states that authority, always subject to judicial review, would be an extraordinary imposition of federal power. It would, as one brief put it, “turn our federalist election system upside down.” Yet that is exactly what the Court has done.



Had the Court stopped there, the decision would have been plainly evasive. Instead of meeting their constitutional responsibility, the justices would have fallen back on an invented technicality in order to avoid potential charges that they had interfered with the democratic process. Better, by this logic, to find an escape hatch and come to a unanimous decision that might bolster the Court’s failing public reputation, or at least keep it from falling even lower. But if that is how the liberal trio was thinking, they were being colossally naive. The right-wing majority was intent not only on granting Trump immunity from disqualification but also on trashing the amendment’s disqualification clause.

The conservative justices have done so by inventing their own procedure for enforcing Section 3. Their ruling hands Congress the sole authority to disqualify presidential candidates, which it can exercise, the majority asserts, only by passing a law for that purpose. They base that assertion on Section 5 of the amendment, which provides that “Congress shall have power to enforce” the amendment’s provisions, including Section 3, “by appropriate legislation.” Section 5, the majority’s opinion says, is “critical” for understanding Section 3 because it authorizes Congress, in the words of Chief Justice Salmon P. Chase in 1868, to determine “what particular individuals are embraced” by the disqualification stipulation. In good old originalist style, the majority drives the point home by plucking out a quotation from Senator Lyman Trumbull, who in 1869 told his colleagues that, because the Constitution “provides no means for enforcing” the disqualification of candidates, it was being widely violated in the South. It was necessary, then, to pass a “bill to give effect to the fundamental law embraced in the Constitution.”

The speciousness and bad faith of this argument are remarkable. As the liberals point out in their dissenting concurrence, nothing in the Fourteenth Amendment suggests that any legislation is necessary to bring about the disqualification. The amendment authorizes Congress to enact enforcement legislation at its discretion; the Court majority mangles this to mean that Congress must pass a law for the amendment to go into effect. On the contrary, the text of the amendment generates a deep contradiction in the majority’s position. By the majority’s reasoning, simple majorities in Congress could negate the amendment by refusing to pass enabling legislation. Yet the amendment explicitly grants Congress the power to remove a disqualification by a two-thirds vote in each house. If a simple majority were sufficient to stop the disqualification provision, why is a supermajority required to lift a disqualification?

The majority leans heavily on Chase’s opinion in a case known as in re Griffin—an eccentric nonprecedential ruling by a single justice in a circuit court case that contradicted an opinion Chase composed a year earlier. As for the Trumbull quotation, as the liberals note, the majority omits his further remark that the Fourteenth Amendment can disqualify an insurrectionist on its own and that no additional legislation is needed to do so, only legislation to provide “a more efficient and speedy remedy” for carrying out the disqualification. The entire constitutional and political history of the Reconstruction Amendments, including all five sections of the Fourteenth Amendment, makes clear that they came into effect immediately upon ratification. In legal jargon, they were “self-executing.”

Donald Trump was therefore disqualified from federal and state office the moment he engaged in plotting, organizing, and inciting the insurrection of January 6, 2021. The record of his actions is voluminous, as documented, for example, in the report of the Select Committee to Investigate the January 6th Attack on the United States Capitol. All that was left was for the Court to disqualify him from office.

But the Court ducked the issue, instead barring the states from making such a determination without offering any substantive constitutional argument to support its position. As the liberal trio indicated, that still left plenty of other avenues to pursue disqualification. (Any individual or group with standing, for instance, could make a complaint to a federal court.) But then, to the liberals’ obvious dismay, the right-wing majority, with virtually no constitutional basis for doing so, seized the opportunity to dictate how federal enforcement of Section 3 must proceed from here on out. By overturning both the spirit and the letter of Section 3, the majority has redefined the limits of its enforcement so narrowly that it is unlikely any insurrectionist will ever be successfully challenged from holding not simply the presidency but any federal office. For all practical purposes, the Court has scrapped the lessons learned from the Civil War and its aftermath about how to protect American democracy from a clear and ever-present danger.

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