Still in Play

Not just anybody can be president of the United States. You have to be at least 35 years old, a ‘natural born citizen’ and a resident of the country for at least fourteen years. You can’t have already served two full terms as president. And, according to Section 3 of the 14th Amendment, written just after the end of the American Civil War and ratified in 1868:

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, or as a member of any State legislature, or as an executive or judicial officer of any State, 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.

In The Second Founding: How the Civil War and Reconstruction Remade the Constitution, Eric Foner shows that Section 3 had ‘more to do with who would exercise political power in the South than with punishing treason’ – government officials who’d fought for the Confederacy weren’t trusted not to betray their oaths of office again. The constitution doesn’t include definitions of ‘engaged in’, ‘insurrection’ or ‘aid or comfort’; and Section 3 says nothing about how state election officials are supposed to determine if would-be officeholders should be stricken from the ballot (a trial?); but for more than a century it didn’t seem to matter. ‘Section 3 has long since faded into history,’ Foner wrote. But then Donald Trump tried to prevent a joint session of Congress from evicting him from the White House.

On 19 December, the Colorado Supreme Court ruled that Section 3 disqualified Trump from appearing on the state’s Republican primary ballot, scheduled for 5 March. And ‘because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential ballot.’ Other states aren’t bound to follow suit, but they’re welcome to use the decision as a guide. Yesterday, Maine’s senior election official barred Trump from its Republican primary ballot:

I am mindful that no secretary of state has ever deprived a presidential candidate of ballot access based on Section 3 of the 14th Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.

The Colorado judges split 4-3. In a dissenting opinion, Justice Carlos Samour recognised that Section 3 bars insurrectionists from power, but argued that states aren’t ‘free to apply their own procedures … to enforce it’; they require additional legislation from Congress:

And because most other states don’t have the Election Code provisions we do, they won’t be able to enforce Section 3. That, in turn, will inevitably lead to the disqualification of President Trump from the presidential primary ballot in less than all fifty states, thereby risking chaos in our country. This can’t possibly be the outcome the framers intended.

Colorado held a five-day bench trial to determine that Trump was in violation of Section 3, but Samour thought it fell short of ‘due process’. It was rushed, and Trump wasn’t able to request a jury of his peers.

Some more objections:

In the Washington Post, Jim Geraghty asked: ‘If you’re going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn’t he first be convicted of engaging in an insurrection?’

In the New York Times, Samuel Moyn argued that ‘to bar Mr Trump from the ballot now would be the wrong way to show him to the exits of the political system, after all these years of strife,’ and warned against strengthening ‘the hand of a Supreme Court that liberals have rightly complained grabs too much power too routinely’. And Charlie Savage suggested that if Trump isn’t allowed to stand, MAGA-ites may turn to state courts to keep Democratic candidates off ballots too.

And some rejoinders:

Ilya Somin pointed out that former Confederates who were disqualified from government office had never been ‘convicted of any crimes related to their roles in the Civil War’. It doesn’t matter that Trump was never found guilty in criminal court, or that he prevailed during his second impeachment trial.

Laurence H. Tribe and J. Michael Luttig (one a liberal jurist, the other a conservative) argued in the Atlantic that Section 3 ‘operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation’. It gives power to a small number of judges, rather than reflecting the will of the American people. It’s anti-democratic and potentially dangerous, but it’s the constitution.

In the University of Pennsylvania Law Review, William Baude and Michael Stokes Paulsen, writing months before the Colorado decision, acknowledged that ‘Section 3 clearly bears the hallmarks of its historical context’:

It is, for one thing, a radical rule. The sheer sweep of the disqualification from offices that it imposed on former Southern officeholders-turned-rebels was dramatic. Its operation was hugely disruptive of antebellum patterns of elite political leadership, apparently indifferent to inconvenience, and seemingly rather punitive in its consequences. Section 3 is harsh. It is categorical. It is insistent. It seems to have been deliberately designed to turn the prior Southern political order upside down. As Eric Foner puts it, ‘Section 3 aimed to promote a sweeping transformation of Southern public life.’

The framers could have limited its effects to officeholders who’d joined the Confederacy, but they didn’t. It’s still in play.