FILE — President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington, Jan. 6, 2021. (AP Photo/Evan Vucci, File). Inset: FILE — This photo from Wednesday Jan. 6, 2021, show supporters of President Donald Trump, with a Confederate-themed flag among others, listening to him speak as they rally in Washington before the deadly attack on the U.S. Capitol. (AP Photo/Evan Vucci, File)
Colorado’s top court said Tuesday that Donald Trump is disqualified from being president, but the case will almost certainly end up at the United States Supreme Court.
The justices will face a series of questions and two conflicting cases may guide their answers: one involving a former Confederate leader, the other an antebellum Black convict. And it is the case of the convict that would most help Trump.
Here is Section 3 of the 14th Amendment, for reference:
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.
The important questions include: 1) whether the section applies to a former president running for reelection; 2) whether Trump’s involvement in the events of Jan. 6 — when thousands of Trump supporters violently breached the U.S. Capitol building as Congress had begun to certify Joe Biden’s win in the 2020 presidential election — is sufficient to constitute his “engag[ing] in insurrection or rebellion” such that he is disqualified from holding future office; and 3) whether Section 3 disqualifies a person automatically or whether Congress must act to implement it in order to disqualify someone.
The Colorado Supreme Court ruled Tuesday that Section 3, on its own and without the need for any action by Congress, does disqualify Trump from holding future presidential office. However, given that the United States Supreme Court has the final word on interpretation of the United States Constitution, the Colorado ruling will almost certainly find its way before the nine justices. Should the justices agree with Trump and disagree with Colorado on the need for Congressional action, the rest of the analysis may become entirely moot.
As with all questions of appellate law, the Supreme Court is tasked not with ruling on what it believe the wording of the Constitution should mean, but rather, with what it does mean. The Court will not simply decide based on what it thinks is best for the country; rather, it will look to history and perhaps to the few related precedents available to settle the question of what Section 3 means for Trump.
The justices will likely draw upon history of the 14th Amendment in total, the history of any past interpretations of Section 3 in particular, and to the plain meaning of the text of Section 3.
A brief history of the 14th Amendment
Congress passed the 14th Amendment 1866 and the states ratified it two years later. Its primary purpose was to grant citizenship and protect civil liberties of those individuals recently freed from slavery by guaranteeing them equal protection of the laws. The 14th Amendment was just one in a trio of Amendments passed during the immediate aftermath of the Civil War; the 13th Amendment abolished slavery and involuntary servitude and the 15th Amendment granted formerly enslaved people the right to vote. As such, legal questions about application or meaning of 14th Amendment usually require courts to contextualize the amendment as part of post-Civil War efforts to provide legal rights to formerly enslaved people and move forward through Reconstruction.
Later, as Reconstruction receded further back into the nation’s history, the 14th Amendment became something of a vehicle whereby individual states were required to provide the same equal protection and due process guarantees that the federal government does for individuals. As a result, the 14th Amendment became the legal basis for many important rulings on individual rights, including the right to be free from racial and other discrimination, the right to privacy, the right to contract, and many others.
The Disqualification Clause
Section 3, known as the “disqualification clause,” created something of a safeguard for a postwar nation that planned to move forward with an entirely new population of citizens. At the time, future was uncertain at best, and there was a serious risk that members of the former Confederacy would prevent Black Americans from accessing the rights granted to them.
To combat the problem, at least partially, the disqualification clause aimed to keep former Confederate civil and military officeholders from holding state or federal office. This framework was short-lived: In 1872, President Ulysses S. Grant signed the Amnesty Act, which removed the prohibition against former Confederates holding office and pardoned secessionists for their participation in the Civil War. Congress, in a resolution passed a century later aimed at “healing the wounds of the War Between the States,” also granted Confederate leaders Robert E. Lee and Jefferson Davis posthumous relief from Section 3 in 1975 and 1978 respectively.
In a 2021 law review article devoted to the meaning of Section 3, law professor Gerard Magliocca described the clause’s meaning at the time of its enactment as “narrow but deep.” By excluding former confederates from holding office, Magliocca said, southern states were forced to “clean house.” By focusing on government officeholders, the message was that only the political and military elites of the former Confederacy were the ones who should bear constitutional responsibility for the Civil War, Magliocca explained.
There is a preliminary question about Section 3 that presents a potentially simpler question than “what responsibility does Donald Trump bear for the activities of January 6?” and that is “is Section 3 is ‘self-enforcing’ or does it require an act of Congress?” If the Supreme Court agrees with the Colorado Supreme Court that the disqualification clause is self-enforcing, then it can move on to the other, more Trump-specific inquiries. However, if the justices disagree and rule that Congress must act to enforce Section 3’s rules, Trump would be free to assume the presidency — at least until a Congressional act triggers disqualification.
To answer the question about enforcement, the Supreme Court has two conflicting cases to which it may look: one of former Confederate president Jefferson Davis, the other of a Black man tried and convicted of felony assault in 1869 before a judge who was a former Confederate. Neither case is binding on the current Supreme Court, though curiously, both were decided by the same chief justice of the Supreme Court.
Jefferson Davis, a non-precedent case that might have helped Trump if it had ever been decided
Davis was indicted by the federal government for treason immediately after the conclusion of the Civil War. During the treason prosecution, Davis’ lawyer argued that Davis could not legally be prosecuted for treason, because he had a right to be protected against double jeopardy. The logic went that because Section 3 already prohibited Davis from holding office, the man had already been punished by the federal government for his role in the Confederacy.
Noteworthy about this defense was that it did not begin as Davis’ idea, nor that of his legal team. Rather, the defense was actually suggested by then-Chief Justice of the Supreme Court Salmon Chase. Chase presided over a pretrial appeal in Davis’ case as a circuit court judge — not as a Supreme Court justice — along with U.S. District Judge and notable abolitionist John Underwood. Notably, at that time, and for most of the first 101 years of the Supreme Court’s history, justices were required to “ride circuit,” which meant serving as circuit court justices twice a year in each judicial district to hear appeals, sometimes alongside a district judge. It was during a period of Chase’s “riding circuit” on pretrial appeals in Virginia that he gave legal advice to Davis’ attorneys about using the Section 3-double jeopardy defense.
Magliocca notes in his law review article that a judge giving legal advice to litigants would never be tolerated now, but that ethical standards were far lower during the nineteenth century.
In response to Davis’ defensive argument, the United States argued that Section 3 was not self-enforcing, meaning that it did not become effective absent an act of Congress calling for someone’s disqualification. Therefore, prosecutors said, Davis had not actually been punished at all and there was no double jeopardy issue at play. Underwood agreed with the federal government’s take on the matter, and given that he and Chase, sitting as the two circuit judges disagreed, the issue was certified for appeal to the Supreme Court (where it was expected to once again come before Chase, this time as Chief Justice).
The question of whether Section 3 was self-enforcing was never actually decided, because then-President Andrew Johnson pardoned Davis and all the other members of the former Confederacy in 1868. The Section 3 issue therefore became moot.
Chase’s belief that Section 3 was self-enforcing is difficult to separate from the overarching context of a potential double jeopardy claim. After all, Chase was not considering whether Davis was qualified to hold future office, but whether Davis could be subjected to punishment beyond being banned from holding future office. In the case of Trump, the question as to self-enforcement — though perhaps not the answer — is much simpler.
The 1869 case of Caesar Griffin also focused on whether Section 3 is self-enforcing. Though the case was unrelated to Davis’ treason prosecution, it was also appealed to Chase as a circuit judge Underwood as a district judge on appeal.
Griffin was a Black defendant convicted in Virginia of felony assault. Hugh W. Sheffey, a former Confederate, was the state trial judge who presided over the case. Sheffey was later deemed ineligible to continue as a judge because of Section 3, and although no irregularities or unfairness at trial was alleged, Griffin filed a habeas corpus petition solely on the basis of Sheffey’s disqualification.
Underwood granted the writ of habeas corpus to Griffin, and Virginia appealed.
On appeal, Chase ruled that as to Sheffey, Section 3 was not self-enforcing — the exact opposite to what he ruled in Jefferson Davis’ case. Chase reasoned that nullifying Griffin’s conviction or imprisonment based on Sheffey’s having been a Confederate would cause chaos and explained in the ruling.
“Surely a construction which fails to accomplish the main purpose of the amendment, and yet necessarily works the mischief and inconveniences which have been described, and is repugnant to the first principles of justice and right embodied in other provisions of the constitution, is not to be favored, if any other reasonable construction can be found,” the judge wrote.
Had Griffin’s Case been a Supreme Court precedent, the current Court would likely be bound to follow its precedent at least to some degree. However, despite its having been authored by the then-Chief Justice, Chase did so only as a circuit judge.
In his law review article, Magliocca explored what he called the “flawed analysis and inconsistency” of Chase’s conflicting holdings. Magliocca said that there is no sound basis for concluding that Chase simply disfavored a Black defendant over a white one given that “Chase was one of America’s greatest antislavery lawyers, and his record refutes any inference of racial animus.”
Rather, Magliocca suggests, Chase may have been motivated by his own political aspirations or perhaps by a desire to give something of a concession to Southern ex-Confederates to help sell them on the 14th Amendment’s general fairness.
Trump’s legal team will likely argue to the Supreme Court that the Griffin case is the most closely analogous one to his own. Though the case is not technically binding on the current court, it is a clear ruling authored by a sitting chief justice at a time contemporaneous with the 14th Amendment’s passage. For the current justices who have shown a propensity to put a great deal of stock in “historical tradition,” reliance on Chase’s words in Griffin’s Case might be irresistible. Further, the fact that at least some of those same justices were placed on the high court by Trump himself is similarly tough to overlook.
Have a tip we should know? [email protected]
