Unanimous, but wrong

In Trump v. Anderson, decided on March 4, the Supreme Court undermined one of the most basic principles of constitutional law: it is for the judiciary to enforce the Constitution. Long ago, Marbury v. Madison explained that the limits of the Constitution are meaningless if they are not enforced. It should be the role of the judiciary to enforce Section 3 of the Fourteenth Amendment, as with all other constitutional provisions. The Court’s decision in favor of Donald Trump cannot be justified based on the text of the Constitution or the original meaning of the provision, let alone basic constitutional principles.

The issue before the Court was whether Trump is disqualified by Section 3 of the Fourteenth Amendment which provides: “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, having previously taken an oath, as a member of Congress, or as an officer of the United States … 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. But Congress may by a vote of two-thirds of each House, remove such disability.”

There really should have been just two questions: Does Section 3 apply to the President of the United States? And if so, did Donald Trump engage in “insurrection?” The answer to both is clear.

As for the former, Section 3 applies to “any office, civil or military.” The Constitution repeatedly treats the presidency as a “civil office.” In fact, this issue was explicitly discussed and answered in Congress when it was considering proposing the Fourteenth Amendment. Senator Reverdy Johnson expressed concern that Section Three “does not go far enough” because past rebels “may be elected President or Vice President of the United States.” Senator Lot Morrill responded to this objection. He replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” This answer satisfied Senator Johnson, as it should satisfy the Supreme Court today.

As for the latter, whether Donald Trump engaged in insurrection or rebellion, the dictionary defines an insurrection as “a violent uprising against an authority or government.” It is impossible to deny that this occurred on Jan. 6. Nor can Donald Trump’s role in this, or his effort to do everything he could to undermine the results of the 2020 presidential election be disputed. Section 3 does not require that there be a criminal conviction for it to apply.

Nothing in the Supreme Court’s opinion disputes either that Section 3 applies to the President or that Trump was part of an insurrection. Why then did the Court hold that Trump could run for President?

The Court said that the power to enforce Section 3 belongs with Congress, not with the states. The Court explained that the Fourteenth Amendment does not give states the power to enforce Section 3 against candidates for federal office. The Court, in its per curium, said that there must be federal legislation, which Congress can enact under Section 5 of the Fourteenth Amendment, in order to disqualify a candidate under Section 3. The Court stated: “But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible,”

The Court said that allowing states to enforce Section 3 for federal candidates could result in a scenario in which “a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).” That, the Court said, create a “patchwork” that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” “Nothing in the Constitution,” the court wrote, “requires that we endure such chaos.”

The Court’s reasoning is deeply problematic. First, no legislation should be required to enforce Section 3, any more than for any other constitutional provision. The Constitution is meant to limit the government and should not require congressional action in order to be enforced. In fact, in 1883, in the Civil Rights Cases, the Supreme Court declared that the Fourteenth Amendment is “undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.”

Indeed, the language of Section 3 delineates the role of Congress. The last sentence states: “But Congress may by a vote of two-thirds of each House, remove such disability.” In other words, the role of Congress is not to authorize the use of Section 3, but rather a check on its use by removing the disability.

Second, the Court is wrong in saying that it is not for states to enforce the Fourteenth Amendment. State courts constantly do so. The Bill of Rights is applied to the states through the due process clause of the Fourteenth Amendment. Literally every day, state courts hearing criminal cases enforce provisions such as the Fourth Amendment’s limits on police search and seizures and the Sixth Amendment’s requirements during a criminal trial. If a state adopted an unconstitutional law restricting voting, surely state courts could enjoin it.

The Court is concerned about individual states making the determination of who can run for President of the United States. But any such determination by a state court is reviewable in the United States Supreme Court. Ultimately, it would be for the Supreme Court, for the entire country, to decide if the requirements of Section 3 are met.

The current Court prides itself on following the text and the original meaning of the Constitution. But the decision in Trump v. Anderson cannot be justified based on this. The text clearly disqualifies Trump and says nothing about requiring congressional legislation or disempowering states. The original meaning of Section 3 was to keep those who participated in rebellion or insurrection from holding office.

After the oral argument on Feb. 8, there was no doubt as to how the Court would rule. But its decision, even though unanimous in result, was wrong and was a failure of the Court to fulfill its most basic responsibility: enforcing the United States Constitution.