The Case for Disqualification
The Supreme Court must decide if it will honor the original
meaning of the Fourteenth Amendment and bar Donald Trump from holding
public office or trash the constitutional defense of democracy against
insurrections.
Illustration by Anthony Russo
Even as Donald Trump roars and intimidates with ever more
violent threats, even as his lawyers warn that kicking him off the
ballot in November would “unleash chaos and bedlam,” even as it becomes
evident that we are not in the midst of a normal national election but
an ongoing coup d’état by a charismatic despot, it is taking a long time
for the public to understand the enormity of the events of January 6,
2021, and all that precipitated them.
In the moment, American
historians were better equipped to grasp their profound political
implications. Less than a week after the attack on the Capitol, Eric
Foner, the preeminent authority on Reconstruction, pointed to Section 3
of the Fourteenth Amendment, ratified three years after the end of the
Civil War, which bars anyone who has sworn to uphold the Constitution
and who has engaged in insurrection from ever holding office again.
Plainly, Foner said, then-president Donald Trump, along with other
public officials, had sworn “an oath to defend the Constitution and, on
Jan. 6, they violated it.” To bar them from public office, as the
Constitution mandates, “would be the mildest of punishments” for “an
uprising that left five people dead, threatened the lives of members of
Congress, caused havoc in the Capitol, and sought to overturn the
results of the presidential election.” Upholding the law of the land,
Foner remarked, “would be an affirmation of the vitality of our wounded
democracy.”
Three
years later the Supreme Court will now decide whether to sustain the
recent decisions of the Colorado Supreme Court and the Maine secretary
of state to follow the Constitution’s mandate, much as Foner suggested.
Unsurprisingly, Trump’s lawyers and defenders, when not unsubtly raising
the specter of mass violence, have groped for any escape route they can
find. George W. Bush’s attorney general Michael B. Mukasey has floated
the strange reading that the relevant section of the Fourteenth
Amendment covers only persons appointed to office.
In its filing contesting the Maine disqualification, Trump’s legal team
tries to peddle the claim that the amendment bars persons “from holding specified offices, not from running for them or from being elected to them.”
No
less risible, if somewhat more surprising, has been the alarm at
Trump’s disqualification expressed by some law school academics and
political pundits. By their reasoning, Trump’s misdeeds aside,
enforcement of the Fourteenth Amendment poses a greater threat to our
wounded democracy than Trump’s candidacy. In the name of defending
democracy, they would speciously enable the man who did the wounding and
now promises to do much more.
Samuel Moyn of Yale Law School, for example, writing in both The New York Times and, less guardedly, the Trumpist magazine Compact,
has described invocation of the Fourteenth Amendment as essentially a
conspiracy, part of a plot by liberals to stifle dissent against their
shoddy elitist hegemony, the latest “quick fix or short cut that would
save liberals the trouble of winning” at the polls. The New Yorker’s
Amy Davidson Sorkin cites a Colorado Supreme Court dissenter’s citation
of a solitary, eccentric 1869 court ruling—a decision debunked and even
ridiculed by historians and constitutional scholars across the
ideological spectrum—to suggest that disqualifying Trump would deny him
due process under the law. In any event, Sorkin writes, it would be much
“sounder” to defeat Trump at the polls than to risk the chaos she
presumes his disqualification would cause. To avoid political
consequences, she would toss the law and leave the matter to politics.
Kurt Lash of the University of Richmond claims, in a Times
op-ed, that the constitutional basis for disqualification is at best
iffy. Lash imputes ambiguity to the Fourteenth Amendment by placing
great weight on the fact that during the congressional debate on its
adoption in 1866, Senator Reverdy Johnson of Maryland, a former attorney
general, wondered whether its disqualification section applied to the
president. He downplays how, once corrected, Johnson told the Senate,
“Perhaps I am wrong as to the exclusion from the Presidency; no doubt I
am.” Meanwhile, in New York, Jonathan Chait, while raising issues
of due process and the optics of disqualification so close to the
election, also frets over whether Trump engaged in insurrection at all
because he “was not trying to seize and hold the Capitol nor declare a
breakaway republic,” as if that were the proper definition of the term.
In fact, the federal indictment against Trump for January 6 covers his
attempt to stage a coup over a three-month period.
Finally, Ruth Marcus of The Washington Post,
who also fears a Trumpist frenzy, has offered three rationales for the
Supreme Court to overrule the Colorado court: that it is unclear whether
Trump engaged in insurrection; that Section 3 of the Fourteenth
Amendment doesn’t cover US presidents; and that Congress must pass
enabling legislation before Section 3 can be enforced. But the
historical and constitutional basis for these claims is at best flimsy
and for the most part nonexistent.
Whether
motivated by a clutching fear of Trump’s base, a perverted sense of
democratic evenhandedness, a reflexive hostility toward liberals, or
something else, these confident disavowals betray a basic ignorance of
the relevant history and thus a misconception of what the Fourteenth
Amendment actually meant and means. That history, meanwhile, has placed
the conservative members of the Supreme Court in a very tight spot.
Over
the past forty years the doctrine of originalism (along with its
sibling, textualism) has been the cornerstone of the jurisprudence of
the conservative majority that now dominates the Court. Concocted in the
1980s to roll back the constitutional precedents of the New Deal and
Great Society eras, supposedly in the name of judicial restraint,
originalism purports to divine the original intentions of the framers by
presenting tendentious renderings of the past as a kind of scripture.
This bad-faith invocation of the framers has become a ploy to justify
overturning Roe v. Wade, gutting the Voting Rights Act of
1965, eliminating commonsense gun regulation, and more. But now this
originalist petard is exploding in the majority’s face. No degree of
cherry-picking or obfuscation can deny the historical record of the
Fourteenth Amendment, which is unequivocal: if Donald Trump engaged, in
any way, in the insurrection of January 6, he is automatically barred
from holding any public office, federal or state.
Contrary
to some of the pundits, the Fourteenth Amendment, including its third
section, was not adopted to conciliate the North and South or, in Moyn’s
words, to “stabilize the country after a civil war.” Along with the
Thirteenth and Fifteenth Amendments, it was an attempt to formalize and
consolidate a social revolution—the abolition of slavery—and, as far as
possible, to crush, in national law, the implacable efforts of the
defeated Confederates to undo that revolution.
The amendment’s third section grew from debates initiated by the
congressional Joint Committee on Reconstruction on how best to ensure
that the chief Confederates would not recreate an oligarchic regime
based on black subjugation and disenfranchisement.
As the legal
historian Mark Graber has demonstrated, however, the third section’s
framers and supporters also pointedly stated that they were not aiming
its disqualification provision simply at those who had participated in
what they called “the late rebellion.” Graber cites, among others,
Senator John Henderson of Missouri, who observed that “the language of
this section is so framed as to disenfranchise from office the leaders
of the past rebellion as well as the leaders of any rebellion hereafter
to come.” Anyone who had violated a solemn vow to uphold the
Constitution could never be trusted not to do so again; hence
disqualification was the only reasonable course. The reasoning pertained
not to any one era but to all time, providing the nation, Senator
Waitman T. Willey of West Virginia declared, with a “measure of
self-defense.”
The
need for that self-defense in the current moment belies the argument of
Sorkin and others quaking before Trump and his followers that, in
Chait’s words, to disqualify him “would be seen forever by tens of
millions of Americans as a negation of democracy.” The fact is that
Trump has already attempted to negate American democracy and come
perilously close to doing so; and he has stated publicly that he intends
to do it again, up to and including, if returned to power, suspending
parts of the Constitution that he is supposed to preserve, protect, and
defend. It would certainly be a “sounder” solution (Sorkin’s word) if
Trump were defeated in 2024, after which he graciously returned to
Mar-a-Lago. But he and his supporters—most recently Representative Elise
Stefanik of New York, who is eagerly auditioning to be his running
mate—have openly declared that this simply will not happen, no matter
what the voters decide. They are no less implacable than the die-hard
Confederate insurrectionists were after Appomattox. They represent
precisely the kind of clear and present danger that the framers of the
Fourteenth Amendment knew they were facing, a danger against which the
normal mechanisms of electoral democracy are powerless. Only a
constitutional remedy, those framers knew, would suffice. Section 3 of
the Fourteenth Amendment is that remedy.
Trump’s
ever-inventive lawyers, to be sure, have tried to confuse the issue by
claiming that disqualifying their client amounts simultaneously to
lèse-majesté and deep-state persecution. At Trump’s behest, they
are throwing any argument into the mix to cause delay and to use the
courts as a forum for his campaign. Although it persuaded a Denver
judge, the claim that presidents are not covered by the disqualification
clause does not pass the smell test, especially on originalist grounds,
as the framers and the supporters of the amendment recognized that its
phrase encompassing “any office, civil or military, under the United
States” included the president and vice-president. Trump’s attorneys
have the audacity to claim that their client was not an officer of the
United States. Have they read the constitutional oath every president
takes to “faithfully execute the Office” of the presidency? Do they
really expect anyone to believe that the presidency is the one federal
office whose occupant is not an officer of the United States?
The
United States Court of Appeals for the D.C. Circuit has yet to rule on
Trump’s claims to presidential immunity from prosecution for any alleged
crimes for which he was not impeached, a twisted reading of the
Constitution that special counsel Jack Smith has reasonably said
“threatens the democratic and constitutional foundation of our
Republic.” Yet even if the appeals court were to rule in Trump’s favor,
it would have no effect on his disqualification, as the constitutional
bar is not based on any conviction for any criminal offense. Although
insurrection is indeed a federal crime under 18 US Code § 2383, it
became one only in 1948, and it is in any case irrelevant to
disqualification under the Constitution. None of the ex-Confederates
excluded from office after the amendment went into effect were
prosecuted for insurrection. One public official has thus far been
removed from office under the Fourteenth Amendment for participating in
the January 6 events: Couy Griffin, a New Mexico county commissioner who
was earlier convicted of trespassing, sentenced to fourteen days in
jail, and fined $3,000. But one need not have been proved beyond a
reasonable doubt to have engaged in insurrection in order to be
disqualified from public office. Disqualification is a constitutionally
imposed disability, not a punishment for a criminal offense.
The
Trumpists would have it otherwise, claiming that unless Congress passes a
law implementing the disqualification clause, it is inoperative. If
successful, this line of argument would have to rest on a single strange
ruling, the one cited by Sorkin, made by Chief Justice Salmon P. Chase
in the case in re Griffin in 1869.
A year earlier,
presiding over the treason trial of Jefferson Davis, Chase counseled
Davis’s attorney that as Section 3 of the recently ratified Fourteenth
Amendment was self-executing—meaning that it required no additional
legislation to come into effect—its exclusion of insurrectionists
effectively vacated Davis’s treason indictment. Just as no additional
law was needed to abolish slavery after the Thirteenth Amendment, none
was needed to disqualify insurrectionists from public office. What
evidence survives suggests that the framers and supporters of the
Fourteenth Amendment in 1866–1868 assumed that it was self-ratifying in
its entirety; there is no evidence suggesting they did not. Affirmation
by a court of engagement in insurrection was sufficient for a Section 3
disqualification, as happened immediately after the Civil War and has
happened as recently as 2022 in the New Mexico case. The involvement of
Congress was not mandatory; to rule that it is now would raise serious
and possibly devastating questions about this Supreme Court’s
legitimacy.
In the Griffin case, however, involving a
Virginia convict attempting to disqualify the judge who had presided
over his trial because he had served in the Virginia legislature during
the Civil War, Chase, in his capacity as circuit justice, suddenly
changed his mind, asserting that Section 3 was moot, absent enabling
legislation. No other judge or justice ever ruled this way again,
whereas state courts pursued disqualifications under Section 3, assuming
that the entire Fourteenth Amendment, and not just its other four
sections, was self-executing. Congress never countermanded these
disqualifications.
The attention recently given the disqualification clause has focused new attention on in re Griffin,
and most experts have judged Chase’s revised ruling a botch, filled
with contradictions and quite likely politically motivated and
self-serving. Among other critics, the two conservative legal scholars
who have argued most forcefully for Trump’s disqualification on
originalist grounds, William Baude of the University of Chicago and
Michael Stokes Paulsen of the University of St. Thomas, regard Chase’s
decision as a joke that “should be hooted down the pages of history.”
The Colorado Supreme Court ruling, in coming to the same conclusion, put
the issue bluntly: if any of the nearly identically structured
Reconstruction Amendments, including the Fourteenth, required additional
legislation to go into force, “then Congress could nullify them by
simply not passing enacting legislation. The result of such inaction
would mean that slavery remains legal.”
For the current Supreme Court to nullify Trump’s disqualification on so feeble and exceptional a precedent as in re Griffin would make another high court ruling based on the Fourteenth Amendment, Bush v. Gore, look like a paragon of dispassionate jurisprudence.
With
the law and the facts against them, the Trumpists and the apologetic
pundits alike have started pounding the table, trying to raise doubts
about whether Trump engaged in any kind of insurrection at all. This has
led to some diverting speculation and oddball debates over what,
exactly, constitutes an insurrection. Chait claims that nothing less
than a full-fledged revolution or Confederate-style secession fits the
bill. Adam Serwer of The Atlantic demurs, reminding us of
the Whiskey Rebellion, Fries’s Rebellion, Gabriel’s and Nat Turner’s
uprisings, not to mention John Brown’s Raid, all described as
insurrections in their time. Ross Douthat, in his Times
newsletter, denies that January 6 matches any of those lesser examples,
though he does hold up John Ganz’s identification of a fascist riot in
Paris on February 6, 1934, as a possible instance of one. So much for
American exceptionalism.
To
satisfy the Supreme Court majority, an originalist inquiry would be in
order; but once more, originalism ends up working to Trump’s
disadvantage. Graber has again done the essential work. Upon close
examination of Anglo-American legal texts on treason and insurrection
dating back to Edward III in the fourteenth century, but with special
attention to American law from the founding through the start of
Reconstruction, he has identified four elements that define an
insurrection: 1) an assemblage of people; 2) engaged in resisting a
federal law; 3) using force or the threat of force with intimidating
numbers; 4) with a public purpose or, in the words of Justice Samuel
Chase in 1800, an “object of a great public nature, or of public and
general (or national) concern.” Engaging in insurrection need not mean
actually being present to commit the violence or intimidation. On all
four counts, the well-established facts of Trump’s activities and spoken
words on January 6 and over the preceding weeks squarely fit an
originalist definition.
In fact, there is a clear consensus on the
basic facts of January 6, not least in the findings of the
congressional January 6 Committee, though Jack Smith may well present
more shocking details in his federal case against Trump. Moyn sees no
such consensus, a major reason why he thinks the Supreme Court should
reject disqualification out of hand. On December 22 he wrote:
What actually happened on Jan. 6—and especially Mr. Trump’s exact
role beyond months of election denial and entreaties to government
officials to side with him—is still too broadly contested.
The claim is bizarre. “Broadly contested” when
bipartisan majorities in both houses of Congress voted to impeach and
remove Trump from office? When two Colorado courts concurred that Trump
had engaged in an insurrection? When even Trump’s lawyers in those
proceedings did not contest the facts about the insurrection? When the
remarks, soon after the insurrection, of Senator Mitch McConnell still
resound? “It was a violent insurrection for the purpose of trying to
prevent the peaceful transfer of power after a legitimately certified
election from one administration to the next.”
With
oral arguments before the Supreme Court set for February 8, Trump and
his advocates have outdone themselves, serving up the sophistry and
chicanery contained in the amicus brief prepared on behalf of Senator
Ted Cruz and 178 other MAGA members of Congress and filed
on January 18. Seemingly a road map for the conservative justices to
stop disqualification, the brief reads more like a game of three-card
monte. After swiftly noting that Chase’s discredited ruling in Griffin
is “not directly binding,” it then shuffles into treating the ruling’s
“longstanding precedent” as if it were absolutely binding and claims
that “Congress must pass authorizing legislation to enforce Section 3.”
The brief twists Congress’s express authority to enforce the amendment
to mean that the amendment itself is not self-enforcing.
The brief
bids the Supreme Court to rule that because the presidential oath of
office does not contain the words “support the Constitution” (the
president swears to “preserve, protect and defend the Constitution”),
Trump is exempt from disqualification under Section 3. In claiming that
the Colorado decision denies Congress’s authority to undo a Section 3
disqualification, it distorts the wording of the Twentieth Amendment, on
presidential succession, to reach a conclusion for the ages: “A
candidate may be elected President even if he is not qualified to hold
the office.” In dealing that card, the brief’s authors appear not to
notice that it gives away their entire game.
These
lawyers—indeed, all the academics and pundits quailing at enforcement
of the Constitution—would profit from the words of Abraham Lincoln at
the outset of the Civil War. The American people, Lincoln said, had
established that they could successfully create and administer a
democratic government. They had yet to establish, however, whether they
could maintain that government “against a formidable internal attempt to
overthrow it.” Now they were left “to demonstrate to the world that
those who can fairly carry an election can also suppress a rebellion.”
The
conservative majority of the Supreme Court—and the historical legacy of
the Roberts Court—have reached a point of no return. The law, no matter
the diversions and claptrap of Trump’s lawyers and the pundits, is
crystal clear, on incontestable historical as well as originalist
grounds. So are the facts of the case, which in any event the Supreme
Court is powerless to review. The conservatives face a choice between
disqualifying Trump or shredding the foundation of their judicial
methodology.
But the choice is far more profound than the Court’s
consistency. In 2000 it disgraced itself by manipulating the Fourteenth
Amendment to produce Bush v. Gore, a ruling that changed
the course of history and was later described by Justice Antonin Scalia,
who concurred in it, this way: “As we say in Brooklyn, a piece of
shit.”
Now the Court must decide whether it will honor the original meaning of
the Fourteenth Amendment and disqualify Donald Trump. If it does so, it
may redeem in part the terrible judicial malpractice of 2000. If it
does not, it will trash the constitutional defense of democracy designed
following slavery’s abolition; it will guarantee, at a minimum,
political chaos no matter what the voters decide in November; and it
will quite possibly pave the way for a man who has vowed that he will,
if necessary, rescind the Constitution in order to impose a dictatorship
of revenge.
—January 25, 2024
Sean Wilentz
Sean Wilentz is the George Henry Davis 1886 Professor of American History at Princeton. His books include No Property in Man: Slavery and Antislavery at the Nation’s Founding. (February 2024)