We are off to a flying start on a momentous year. The Supreme Court will have to decide whether Donald Trump is disqualified from running for president because of the application of Section Three of the 14th Amendment to the Constitution.
A few months ago, only the most seasoned constitutional lawyers were aware that such a provision even existed. Most who looked at it were quick to dismiss its application, saying that the entire issue was a nonstarter.
Some argued it is a political question, not one to be decided by the courts, ignoring that the decisions of the Supreme Court interpreting the Constitution often have political consequence.
Maine Secretary of State Shenna Bellows, in her cogent 34-page opinion disqualifying Trump from the ballot in that state, argued that never before has a secretary of state used Section 3 to disqualify a presidential candidate, but observed that never before has a president engaged in an insurrection to keep himself in power and thwart the will of the voters.
The flap all started with an influential August 2023 law review article coauthored by conservative constitutional scholars William Baude and Michael Stokes Paulsen, which analyzed every bit of the history, structure, text and original understanding of Section 3 — and concluded that Trump was disqualified.
Authoritative constitutional law scholars — such as Professor Laurence Tribe of Harvard Law School, retired conservative Federal Judge J. Michael Luttig and Professor Gerard M. Magliocca of the Indiana University School of Law — were quick to add their support.
Then came the decision of the Supreme Court of Colorado and of the Maine secretary of state. The fat is now in the fire; the issue is now going to be before the Supreme Court.
There were howls of execration from the Trump camp. Newt Gingrich said that the 14th Amendment has no application in modern times, forgetting that the 14th Amendment desegregated the schools and made the Bill of Rights applicable to the states.
Trump spokesman Steven Cheung, referring to the enforcement of Section 3, made the fatuous statement, “We are witnessing, in real-time, the attempted theft of an election and the disenfranchisement of the American voter” — ignoring that the events of Jan. 6 were a much better fit for what he described.
Anti-democratic, they say? The framers of the 1789 Constitution were not great fans of the voters. The great charter of government provides for the appointment of cabinet ministers and even federal judges, unlike the constitutions of many states, where judges and other public officials are elected. The Electoral College itself filters the election of the president from the people. Members of the Senate were appointed by state legislatures until direct election came in 1913 with the 17th Amendment.
In its 5-4 decision in Bush v. Gore, the court had no reluctance in tampering with America’s presidential election machinery. Five justices agreed that there was an Equal Protection Clause violation in using differing standards of determining a valid vote in different counties in Florida, which created an “unequal evaluation of ballots in various respects.”
They thereupon declared Bush the winner of the state by the slender margin of 537 votes out of almost 6 million cast, making Bush the president-elect.
There are no good options for the six Republican-appointed justices on the beleaguered Supreme Court. There is trouble in the palace of justice. Polls show that the court’s approval rating is at an all-time low. Perceptions of hyperpartisanship and ethical laxity have diluted the influence of their decisions.
Notre Dame law Professor Derek Muller has suggested that the court will “coalesce around a consensus unanimous opinion.” Given the fractious composition of the court, this is highly unlikely.
The justices might find that there is insufficient evidence that Trump “engaged in an insurrection,” but to do this they would have to deny the Colorado findings as well as incontestable facts — based largely on Trump’s statements, tweets and conduct — that are generally accepted by a majority of the American public. We all witnessed it in real time.
They could find that Section 3 does not apply to the president, but to do this they would have to hold that the president is not an officer of the United States, even though the Constitution refers to him as such 25 times — an interpretation so strained as to be untenable.
They might find that Section 3 is not self-executing, unlike the other provisions of the 14th Amendment — a proposition having no basis in the text or history of the Amendment. The court interpreted the 14th Amendment to forbid school segregation, even though at the time there was no congressional measure implementing it.
They might find that Section 3 requires a criminal conviction of insurrection or insurrection-like conduct, but such a finding would ignore that its drafters would have put such a requirement in the text had they wanted it.
They might find that Section 3 does not apply to a primary election, and the issue is therefore not ripe for determination. Maybe Trump will not be nominated, and maybe he will not be elected, in which event the problem disappears. But why leave the GOP twisting in the wind wondering whether their frontrunner will be disqualified later on?
The objective should be to avoid electoral chaos, achieve certainty, guaranty a free and fair election — and, most importantly, vindicate the Constitution.
Professor Tribe and Judge Luttig confidently predict that the Supreme Court will affirm the Colorado case, which Luttig calls “unassailable.”
Tribe posted: “All the arguments against enforcing Sec 3 of the 14th Amendment as written and originally intended come down to arguments with the Constitution itself because they would render this key protective provision a dead letter.”
We live in interesting times, and many significant issues at home and away will play out this year. Unless the Supreme Court affirms the Colorado decision, we are in serious danger of electing an insurrectionist who violated his oath of office — a self-styled dictator who says he wants to terminate our precious Constitution.
Happy New Year!
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.