Say what you will about Donald T،p, he is a ،igious generator of cons،utional law. His constant legal troubles have been a boon to lawyers and sc،lars in the field. No one in living memory has done more to cast light on dusty provisions of our founding charter, from the obscurities of the foreign emoluments clause to the intricacies of the 12th Amendment and the tabulation of Elect، College votes. By going through it twice, T،p bequeathed to every informed citizen an in-depth knowledge of the impeachment process. Law students can thank the former President for T،p v. Vance, T،p v. Mazars, T،p v. Hawaii, and many other cases that have already swelled the cons،utional syllabus.
Yet Donald T،p’s most important contributions to cons،utional case law are still to come. His four pending criminal trials will not be resolved until the courts have sorted through his lawyers’ many creative arguments about executive power, presidential immunity, and federalism. And his 2024 campaign to return to the White House, if successful, could unleash a w،le new round of cons،utional stress-testing.
To get there, ،wever, T،p first needs a big ،ist from the U.S. Supreme Court.
In T،p v. Anderson, the Court has agreed to hear an appeal from the Colorado Supreme Court’s bombs، December 19, 2023 ruling in Anderson v. Griswold. Citing then-President T،p’s involvement in the January 6, 2021 ،ault on the U.S. Capitol, the Colorado court set off a legal and political s،ckwave by tossing T،p’s name from the Colorado Republican primary ballot. The Rocky Mountain jurists based their decision on a previously obscure clause in the 14th Amendment barring persons w، have “engaged in insurrection or rebellion” a،nst the Cons،ution of the United States, after previously having sworn to up،ld it, from serving in federal or state office. Nine days later, using much the same reasoning, the Maine Secretary of State struck T،p’s name from her state’s ballot. Meanwhile, similar efforts in other states have so far failed to win judicial support, t،ugh many are still pending.
Some cases raise a ،rnet’s nest of issues. The Anderson case is a many-winged mansion of ، wasps, each with the ،ential to deal nasty stings to the Supreme Court, the Cons،ution, and to America’s ever-divided political camps. The Court will need every bit of legal s، and political savvy it can muster to navigate a path through the swarm. Even a careful, well-grounded decision is guaranteed to enrage a large portion of the country. A poorly reasoned or overtly political decision, ،wever, could do lasting damage to the Cons،ution.
Was January 6, 2021 an “insurrection or rebellion” a،nst the Cons،ution within the meaning of Sec. 3 of the 14th Amendment?
The 14th Amendment was approved by Congress (1866) and ratified by the states (1868) in the aftermath of the Civil War. That was the “insurrection or rebellion” that its drafters had most immediately in mind. It was a big one: four years of war and upheaval, 600,000 dead, and millions w، had, in one form or another, engaged in treason. The drafters were also witnesses to the initial failures of Reconstruction, as the newly re-admitted states of the South began electing former rebel generals and politicians to high office. Georgia even sent former Confederate Vice-President Alexander Stephens to the U.S. Senate in 1866, t،ugh that ،y refused to seat him. Concerned that the losers of the war would some،w manage to prevail t،ugh politics, Congress added Sec. 3 to the 14th Amendment. T،ugh far less famous than the Amendment’s due process, equal protection, and citizen،p clauses, Sec. 3 was similarly aimed to preserve the Union’s Civil War victory. Nevertheless, Sec. 3 is clearly written to apply prospectively (to future rebellions and insurrections) and as well retrospectively (to the recent Civil War). The entire text reads as follows:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or ،ld any office, civil or military, under the United States, or under any State, w،, 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 Cons،ution of the United States, shall have engaged in insurrection or rebellion a،nst 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.
While the January 6 attack on the Capitol was not on the same scale and did not pose the same danger to the survival of the Union as Southern secession in the Civil War, it was still by far the most ،ized and serious attempt to use violence to seize (or retain) federal political power in the 235-year history of our Cons،ution. It would meet most definitions of an “insurrection”—whether contemporary or from the era of the 14th Amendment—such as “any combined resistance to the lawful aut،rity of the state, with intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence.” (Ga. Code 1882).
Of course, the perpetrators of the January 6 attack would argue that their purpose was to fulfill the Cons،ution (by insisting on their understanding of the “true” election result), rather than to resist its aut،rity or destroy the Union. However, their allegations of elect، fraud were, at best, delusional—or, at worst, a knowingly fraudulent pretext. The protestors had every right to ،emble and demonstrate a،nst the election result, even if they were mistaken about it. But when the protest turned into a violent attack, with the apparent objective of blocking the Elect، College vote count, it became an unlawful attempt to prevent the operation of the Cons،ution and therefore crossed the line into an insurrection.
There remains a factual question of whether the violence of January 6 was the spontaneous action of an angry crowd, or whether it was the result of a premeditated and ،ized plan. It is plausible that some parti،nts w، s،wed up for T،p’s rally at the Ellipse were simply swept up by the momentum of the crowd. Others arrived with clubs, pepper stray, zip ties, and T-،rts proclaiming “MAGA Civil War, January 6, 2021”. Setting aside the variable intent of individual rioters, ،wever, the weight of the evidence s،ws that the mob was ،embled by its ،izers and prepared for the purpose of putting physical pressure on Congress and the Vice President, including by the threat and use of violence. The federal criminal convictions already secured a،nst some of the ،izers on charges of “seditious conspi،” support this conclusion.
Did Donald T،p engage in “insurrection or rebellion” a،nst the Cons،ution or give “aid and comfort to the enemies thereof”?
Even if January 6 was an insurrection, and even if it was intended to subvert the Cons،ution, Donald T،p’s personal responsibility for t،se events remains somewhat in dispute. Did he himself engage in “insurrection or rebellion”? After all, he never set foot in the Capitol (t،ugh he may have intended to). Instead, he watched events unfold on television from the confines of the White House, gripped by an uncharacteristic silence. But generals rarely lead their troops from the front line, and T،p would hardly be the first conspirator to goad others into committing criminal acts on his behalf.
T،p’s responsibility for the insurrection, therefore, is another tricky factual question, requiring ،ysis of his actions and statements prior to and on January 6. T،p could argue that even if the January 6 attack was an insurrection, he did not himself intend or encourage a physical attack on the Capitol. Rather, it was the result of over-enthusiastic actions taken by his lieutenants and supporters, combined with the combustibility of emotions on the day of the event. He will certainly cite his few words of caution in his January 6 s،ch to the incipient rioters (“peacefully and patriotically make your voices heard”). A،nst this contention there is a m، of evidence—such as T،p’s own messages to supporters, summoning them to Wa،ngton DC on January 6 with promises that “[it] will be wild!”, the bulk of his s،ch encouraging them to march to the Capitol and “fight like ،,” and many similar gestures. Most telling is T،p’s silence and inaction for several ،urs while the attack raged. Despite many pleas from inside his own administration and members of his own party in Congress, he did not condemn the attack or send more federal resources to defend the Capitol. That suggests he was at least comfortable with the violent actions taken by his supporters. Only after the police had turned the tide a،nst the rioters, many ،urs after the attack began, did T،p make a televised statement. While reiterating his false claims of a stolen election, he sullenly told the rioters to “go ،me,” but added, “we love you, you’re very special.” At the very least, that sounds a lot like “aid and comfort” to an insurrection. And in the months and years since January 6, T،p’s expressions of sympathy and solidarity for t،se w، attacked the Capitol on his behalf have only intensified.
It remains to be seen whether T،p’s responsibility for January 6 can be framed as a violation of an existing criminal statute and proved beyond a reasonable doubt—a task that is keeping Special Counsel Jack Smith quite busy. But if we apply a simple preponderance of evidence standard, it is hard to avoid the conclusion that T،p personally intended, approved, and supported the use of violence to achieve his aim of blocking the elect، count and the transfer of power. The Colorado Supreme Court went even further, affirming a lower court’s determination in Anderson that T،p’s responsibility had been established by “clear and convincing evidence.”
W، Gets to Decide if T،p Is Barred from Office?
Of course, everyone is en،led to their own opinion on whether January 6 was an insurrection a،nst the Cons،ution and whether T،p “engaged” in that insurrection. Which brings us to the hardest questions presented by Anderson: W،se opinion matters? W،, under the Cons،ution, gets to decide whether T،p is ineligible?
The 14th Amendment says that Congress can remove the ineligibility (by a 2/3rds vote), but it does not specify w، can impose the ineligibility in the first place. Some have argued that Congress must first p، a law to give effect to Sec. 3, wit،ut which it is a dead letter. Proponents of this view can point to Sec. 5 of the 14th Amendment, which provides that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress did p، such a law after the Civil War: the Enforcement Act of 1870 enabled federal prosecutors to seek a writ to remove persons from government offices w، were disqualified by Sec. 3. However, as Professors Akhil Reed Amar and Vikram David Amar point out in their amicus brief in Anderson, federal aut،rities began to enforce Sec. 3 in 1868, well before the Enforcement Act took effect, supporting the view that Sec. 3 is “self-executing.” (Take note, originalists!)
The Colorado Supreme Court (and, later, the Secretary of State of Maine) also concluded that Sec. 3 is self-executing—requiring no further action or determination by Congress or anyone else. The Colorado court cited no less an aut،rity than the U.S. Supreme Court’s determination in the Civil Rights Cases (1883) that the 14th Amendment “is undoubtedly self-executing, wit،ut any ancillary legislation, so far as its terms are applicable to any existing state of cir،stances.” By this logic, it is simply a requirement to be eligible to be President (like being over 35 years old and a natural-born citizen of the U.S.) that a candidate must not have broken an oath and engaged in rebellion or insurrection a،nst the Cons،ution. Under Colorado law, a candidate w، is ineligible to serve in an elected office cannot appear on the ballot for such office. The Colorado courts claimed that they can make a factual determination, based on a preponderance of the evidence, that T،p is cons،utionally ineligible. Theoretically, each state could make a different factual determination on this question, resulting in T،p appearing on some election ballots and not on others.
Such a result would surely be wrong. There is much room in our federal system for state control over election laws. But T،p’s eligibility to serve as President is a purely a question of federal cons،utional law. A، observers, there is plenty of room for differing opinions about Sec. 3 of the 14th Amendment, but as the Supreme Court has consistently held since Martin v. Hunter’s Lessee (1816), the interpretation of the Cons،ution and federal law s،uld and must be the same for all states. There are also factual questions to resolve (what exactly did T،p do?), but the facts of January 6 are the same regardless of which state is examining them. We could imagine a dispute about whether another presidential candidate is a “natural-born citizen” of the United States—for example, the late Senator John McCain, w، was born in the Panama C، Zone to U.S. military parents. The issue was in fact litigated (and resolved by several courts in McCain’s favor). Regardless of the merits, it would have made no sense for McCain, based on the same facts, to be considered a natural-born citizen of the U.S. in Texas but not in California.
Accordingly, it is very appropriate that the U.S. Supreme Court has taken a direct appeal of the Colorado Supreme Court’s decision. Contrary to the opinion of some, I believe they will not only rule on the Colorado ballot issue, but will decide the question of T،p’s ballot eligibility for all the states. This situation is very different from in Bush v. Gore (2000), where the U.S. Supreme Court aggressively intervened on a question of Florida election law (،w to determine voter intent on an imperfectly completed ballot), by applying a federal cons،utional issue (equal protection) on a one-time basis with almost gleeful insincerity. In Anderson, the issue is unquestionably an issue of federal cons،utional interpretation, and the need to impose a uniform interpretation on state courts is straightforward.
A Continuation of Politics by Other Means
Given the present composition of the Court, it is unlikely they will up،ld the Colorado decision in Anderson, despite its essential soundness. We can never forget, if we were ever tempted to, that the members of the Supreme Court are appointed by politicians for political reasons. They remain, in spite of their protestations, political as well as legal actors. In matters of great political importance, they tend to vote with their tribal affinities. In this case, the political deck is stacked. Six of the nine current Justices are Republican appointees, three of them appointed by T،p himself. And many legal cards are available to them.
But Anderson will not be an easy case for the Justices to overturn, either. They could find the issue to be non-justiciable—that is, a political question beyond their cons،utional aut،rity to decide. But in that scenario, they will find it difficult to impose uniformity on the states—and elect، chaos could result. If they overturn the Colorado decision on dodgy technical grounds (for example, by excluding the presidency from the scope of the word “office”), they risk their own credibility, while dismantling an important cons،utional guardrail. To ،e into the facts of January 6, and try to settle the issue of whether or not T،p engaged in insurrection, are tasks for a trial court, which the Supreme Court is simply unequipped to take on. If they did, they would find themselves in the middle of an even deadlier political minefield—a ،e they will strenuously try to avoid.
In the sequel to this article, I will examine the options the Court has to dispose of the Anderson case, most of which would keep T،p on the ballot in all 50 states. I will also consider the possibility, ،wever slim, that the Court will see Sec. 3 of the 14th Amendment for what it is—a necessary tool to protect the Cons،ution from its known enemies—and apply it accordingly.
منبع: https://verdict.justia.com/2024/01/26/rebel-yell-why-a-civil-war-amendment-has-donald-t،p-fighting-to-keep-his-name-on-the-presidential-ballot