Several months ago, from Dubai, I offered an elementary observation in a talk to a number of climate activists: We simply cannot, and must not, depend on the US judicial system to rescue the nation from the present unprecedented threat to American Democracy.
In particular, I stated that even a “very well-grounded effort” to invoke Section 3 of the 14th Amendment might fail to keep our insurrectionist-in-chief from the presidential ballot. I was concerned, then, that our present Supreme Court might not retain “the courage of conviction” that our post-Civil War framers of the 14th Amendment presumed they would retain.
Regrettably, the Supreme Court’s decision in the recent ballot-access case — Trump v Anderson (March 4, 2024) — turned out to be considerably worse than I had imagined.
First, by a seemingly unanimous vote the Court rejected the State of Colorado’s enforcement of the 14th Amendment, asserting that a national election should not turn on a decision made by one or more states (including review by their highest courts) concerning whether a national candidate had violated his oath to defend the Constitution.
(Amazingly, in its decision, the US Supreme Court did not even bother to contest the Colorado courts’ critical finding that Trump had engaged in an insurrection against the US Constitution.)
Second, in what retired federal Judge J. Michael Luttig correctly called a “stunning overreach,” five of the nine Supreme Court justices advanced an exceptionally tortured textual defense of their decision, one that effectively precludes enforcement of §3 in this age of divided government.1 In brief, they determined that unless a candidate for public office has been found in a procedure prescribed by Congress to have violated a prior oath to defend the Constitution, then the guarantee of §3 — that an insurrectionist shall not retake the White House or other high office — simply may not be enforced. Stunning, indeed.
The Constitution clearly prohibits a lying insurrectionist from again holding public office.
For critical background, §3 of the 14th prohibits any person from again holding any high state or federal office when they previously (1) held an important state or federal position, for which they (2) took an oath to defend the Constitution, and nevertheless (3) “engaged in insurrection or rebellion against the same.” In turn, §5 of the 14th adds simply that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
By the way, that generic enabling provision, §5, applies not only to §3 of the 14th, barring insurrectionists from returning to high office, but also to §1 (protecting against unjust deprivation of life, liberty or property), and to §2 (apportioning to states their representation in Congress), as well as to §4 (enabling the US to incur some public debt — though not debt “incurred in aid of insurrection or rebellion against the United States,” among other things).
The critically important fact, however, is that §5 of the 14th does not state that only Congress has the power to enforce the §3 rule against insurrectionists returning to high office. Indeed, it does not even imply that. Moreover, the last sentence of §3 makes clear that an oath-breaking insurrectionist is disqualified from again holding office — even where Congress has not adjudicated the question under its own procedures.
The 14th Am. does not even imply that only Congress can enforce the §3 prohibition against insurrectionists.
In other words, by its terms, §3 of the 14th is self-executing, so that a state should be able to enforce against the attempted intrusion onto its ballot of any person who previously held high office and violated their oath by engaging in insurrection. And yet, as if by magic, just such a dispositive implication was found by a majority of the Court.
In so doing, the Supreme Court was engaging in the same sort of logical fallacy that the Court of Appeals recently rejected in the Trump immunity case. United States v Trump (DC Court of Appeals, Feb. 6, 2024).
As I noted the day after that resounding decision (Not a King, and Not Immune, Feb. 7, 2023), the DC Appeals Court properly rejected Trump’s illogical reading of the Impeachment Clause, Art. I , § 3, cl. 7. of the Constitution — which provided no more than a person removed from office by a Judgment of Impeachment in the US Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment” in a court of law. Trump (and his lawyers) had argued that the Constitution there should be read to disallow criminal prosecution of the former President where the Senate had failed to convict him in a case of impeachment. But that argument was fallacious — a clear instance of the fallacy of denying the antecedent. Where the Constitution plainly states that if the President is convicted, he can be later prosecuted, that “does not necessarily mean that if the President is not convicted, he cannot be prosecuted.”
Similarly, with the ballot access case: The Constitution plainly states that an oath-breaking insurrectionist is barred from any subsequent high office, and that Congress is able to enforce that §3 rule by appropriate legislation. But that does not necessarily mean the states — or the courts — may not also enforce the rule, particularly in the absence of any on-point procedural legislation.
In making these points I do not mean to be siding with former Supreme Court Justice Stephen Breyer’s strong advocacy of juridical pragmatism over textualism. Both approaches are important, in my view. But where a critical decision must turn, at least in part, on the plain reading of a statute, then adherence to the basic rules of critical thinking and logic cannot be deemed merely optional, that is, rules to be discarded when inconvenient to a desired outcome.
This point is critical not only to the coming national election, but also to the little matter of whether the criminal law will ever be applied to Trump. Moreover, it may well need to be applied to the question of whether citizens may, at long last, enforce the clear terms of statutes that protect public health and the environment from the ravages of dangerous climate change. And that is a matter to which we will have occasion to return, in this space, soon enough.
- In their concurrence, Justices Soyomayor, Kagan, and Jackson sharply criticized the majority’s attempt to insulate from future controversy both the Court itself and Trump himself — whom they properly called an “oathbreaking insurrectionist.” To decide the case, they said, there was no need for the majority to have concocted a rule that “disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment.” That move essentially slammed shut “the door on other potential means of federal enforcement,” and violated the conservative principle that Chief Justice Roberts had laid down less than two years before, namely that where it is “not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment). ↩︎