Tag: 14th Amendment

[Note:  This is the third in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first two essays can be found here and here.]

Of all the objections that have been offered to our interpretation of Section Three, one stands out as far and away the most craven and insidious.  It is the argument that, regardless of what the Constitution says and how it is correctly understood, we should not enforce Section Three’s exclusion of insurrectionists from future office because doing so might provoke substantial political resistance and even violence by their supporters. To comply with the Constitution in this respect, therefore (it is said), is simply too dangerous.  In short, it might tend to produce further, greater acts of insurrectionary violence or rebellion directed against our constitutional order.   We should decline to enforce the Constitution’s exclusion of insurrectionists from office because that might only make matters worse. Or as Professor Daniel Epps put it in jest: “The Supreme Court shouldn’t rule that Trump is ineligible for the presidency for engaging in insurrection, because if they do Trump will definitely stage an insurrection.”

Accordingly, it is said, we should not enforce Section Three in accordance with the original meaning of its terms, fairly understood.  If the faithful, straightforward interpretation and application of Section Three would risk these consequences, we should not interpret and apply the Constitution faithfully. We should seek ways to avoid carrying out the Constitution’s rules on this matter.  We should compromise constitutional principle to accommodate the believed practical imperatives of the current political situation.  We should appease those who would threaten or engage in political violence, rather than enforce the language of the Constitution.

To state this position plainly, in unvarnished terms, is, we submit, to expose its utter lack of integrity and legal propriety.  This is not a legal argument about Section Three, of course. It is not an argument about the meaning of the Constitution’s text, structure, history, logic, design, or purposes; nor is it an argument from constitutional precedent or practice.  It is, rather an argument from expediency, or cowardice, that a particular provision of the Constitution should be disregarded or dispensed with, out of fear of its consequences or in order to appease those who would hold the Constitution hostage to threats of resistance.  It should go without saying that such an argument ought to play no role whatever in legal interpretation of the Constitution, by those who have sworn to uphold it.

We did not take this objection very seriously in our forthcoming article, The Sweep and Force of Section Three, for two reasons.  First, we simply did not expect it to be a serious argument.  We did not expect that many people would seriously deny that the Constitution should be enforced in accordance with the fair understanding of its terms, taken in their original sense and context, not because of disagreement with such an interpretive approach, but instead out of fear of the consequences of complying with the Constitution.

Second, our article was devoted to legal analysis—an effort to ascertain the original, objective public meaning of a provision of the Constitution, as part of our must fundamental law.  We were not concerned with frankly political evaluations of the hypothesized “danger” of applying the Constitution faithfully.  We simply sought to arrive at a correct understanding of Section Three as a matter of constitutional interpretation.  Had we anticipated the reaction, it still would have been beyond the scope of our project.

Nonetheless, the this-would-be-too-dangerous argument has been among the most persistent and prominent objections made to the thesis of our article.  It has been propounded, in various forms, by a conservative writer for The New York Times, by the editorial board of a prominent, conservative-leaning national newspaper, by a celebrated and venerable nationally-syndicated conservative columnist, and by others.  The common message is that we should not apply Section Three’s original meaning, if doing so would disqualify Donald Trump from eligibility for the Presidency, because it would be “dangerous” to do so.  It would (it has been said) “embitter” Trump supporters, who would react with “rage” to a “rigged” system and produce widespread “chaos.”

And so, we think the objection needs to be confronted directly:

First, there is a real concern that such rhetoric could become a self-fulfilling prophecy.  Some of the public formulations of this objection border on suggesting that extreme reactions might in some sense be justified, or at least understandable, responses to what the writer sees as a great legal provocation.  Other writers merely raise a concern that taking Section Three seriously might produce an uncomfortable disruption of usual political processes.  Instead of raising and possibly stoking fears of violence, it would be far better, we submit, for these opinion writers to champion the Constitution and the rule of law – to urge their readers to take the Constitution seriously in all of its operative provisions, including Section Three, and to encourage a civic ethos that embraces the controlling authority of the U.S. Constitution as “supreme Law of the Land.”

Second, beyond the problem that the dangerousness objection, if repeatedly pressed, might tend to produce its own feared consequences, there is the more basic problem of principle:  It is simply wrong to interpret and apply the Constitution incorrectly out of low-political or social-policy or concern-for-social-consequences-and-disruption motives.  We’ve seen this movie before, several times.  The Supreme Court’s unanimous landmark decision in Brown v. Board of Education in 1954 embraced the Fourteenth Amendment’s fundamental guarantee of equality to repudiate racial segregation in public education, and to disapprove of the pernicious doctrine of “separate but equal,” notwithstanding that large segments of American society would – and did –resist its holding.  In Brown II, the following year, the Court emphasized that, in fashioning judicial remedies to implement the Fourteenth Amendment’s mandates, “it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.”  Disagreement (and “massive resistance”) there indeed was.  But the Supreme Court refused to back down from constitutional principle and, in Cooper v. Aaron in 1958 unanimously reaffirmed the principles of Brown even in the face of public resistance and violence.

Should the Court in Brown have ruled differently – ruled more narrowly, compromised on constitutional principle, avoided deciding the case entirely, or even reaffirmed Plessy (and segregation) on the basis of longstanding precedent and practice – and done so because of concern about how a decision on constitutional principle would be received? Should the Court in Brown deliberately have interpreted the Constitution in a way it thought wrong, on proper interpretive principles, out of fear that committed, hard-core segregationists would be up in arms over a decision embracing the right constitutional answer?  The very idea is, by now, almost unthinkable.  Such a course would have been shockingly unprincipled – outrageous and reprehensible – then, and now.

And of course we have seen that movie before with a different ending. In the first decade or so after the Fourteenth Amendment was enacted, many republicans in political office were willing to enforce its terms, even when this required aggressive enforcement against massive, even violent, resistance. This was Reconstruction. But by 1876 or so, the political winds had shifted and the will to enforce the Constitution had weakened. People in positions of power and privilege now thought it “dangerous” to insist on enforcing the Constitution too much. And so they stopped insisting, and succumbed to the rise of Jim Crow. As John Harrison has summarized it, “what happened in the 1870s is that the white southerners and the national republicans stared each other in the eye and more or less . . . the national republicans blinked.”   Was that really the historically preferable policy?

As with Brown, Reconstruction, and interpretation of Section One of the Fourteenth Amendment, so too with Section Three of the Fourteenth Amendment:  It should go without saying that the vitality of correct constitutional principles should not be allowed to yield simply because of disagreement, resistance, threats, or even violence.  

Faithful constitutional interpretation is of course a special responsibility of judges.  As constitutional scholar and political scientist Matthew Franck recently put it, “where the requirements of the Constitution and the rule of law are concerned . . . questions like ‘what will voters do if we do X?’ are the wrong ones to ask.  Certainly such matters cannot matter to judges. … ‘What bad things will other people do if I do the right thing?’ is a question any judge should be ashamed even to ask himself.”

Franck commended the justices for exercising great integrity in putting politics and popularity aside when they overruled Roe v. Wade two years ago in their headline decision in Dobbs v, Jackson Women’s Health Organization.  “To their credit,” the majority focused on reaching what it thought was the constitutionally correct legal answer in the case, and not at all on public reaction.   Indeed, the Court in its Dobbs opinion itself emphasized the entire irrelevance to its legal analysis of such things, stating that “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” The courts are expected to exercise similar integrity in every hard case.

But faithful constitutional interpretation is not limited to judges alone.  It is the duty and responsibility of all officials who swear an oath to support the Constitution.  And while ordinary citizens do not typically swear an oath to support the Constitution, all Americans who subscribe to and admire the U.S. Constitution as “supreme Law of the Land” should put that fundamental law ahead of their policy preferences, ahead of their politics, and above their fears about real or imagined dangers.   No one should acquiesce in the notion that the Constitution should be subordinated to political “reality” or held hostage to blackmail threats of political violence or unrest.

Indeed, it would be truly dangerous not to enforce this constitutional provision.  Section Three protects our constitutional republic against a grave threat from within: men and women who, once having sworn an oath of office to support the Constitution, subsequently demonstrate their infidelity to our constitutional republic by engaging in acts of insurrection or rebellion should not be entrusted with power a second time (unless and until two thirds of Congress makes a political judgment to excuse or forgive). Not to enforce this provision of the Constitution is to place lawful constitutional government at grave risk. And not to enforce this provision of the Constitution because enforcing it will be difficult, disruptive or dangerous – because of the fear of future insurrection – is arguably the most dangerous course of all.

* * *

We end with a relatively small point about a rather different, more minor, type of dangerousness argument: the argument from misuse. That objection has it that Section Three, if interpreted too broadly, could be misused or abused by political partisans who apply it, as a tool to advance partisan political agendas. In some ways, we find this argument weak and generic. Many governmental powers, some of which may involve interpretation and application of the Constitution (or other law), are vested in many different types of elected officials. Many types of government powers could be abused, or misdirected for partisan ends. This does not in any way refute the existence of such authority.  As we noted in our original article, the potential abuse of a constitutional power or right is not an argument against its existence.  It is an argument against its abuse or misuse – an argument for checks and balances, judicial review among them. And indeed, in the case of Section Three specifically, we note that there have been extensive judicial proceedings about the application of that provision to former president Donald Trump. Indeed, in Trump v. Anderson, the Colorado Supreme Court case now pending on writ of certiorari before the U.S. Supreme Court, there was a full, five-day trial of the facts that formed the basis for application of Section Three.

The possibility of cases pushing Section Three too far is always present.  But that is not an argument for not enforcing Section Three at all.  It is an argument for careful and faithful interpretation of Section Three’s terms, and for careful application of its rules to the actual facts of a given situation. As we wrote in our article and will return to a future post, the facts matter. If the facts, as found by a trier of fact in a court of law, warrant the legal conclusion that an individual is disqualified from office under the terms of Section Three, that conclusion should be given legal effect.  The fact that other situations, involving different facts and different individual conduct, might not warrant the same ultimate conclusion, is unsurprising and untroubling.

The fact that different factual and legal situations may yield different legal conclusions in different cases is an ordinary feature of the rule of law.   It is not a persuasive argument for failing to give Section Three its proper, original meaning and applying it as part of our nation’s fundamental law.  It is a reason to try to define Section Three’s terms objectively as a matter of the original meaning of the Constitution, without being pushed or pulled by today’s politics, so that they can be consistently understood and applied over time. That is what we have tried to do in The Sweep and Force of Section Three.

[Note:  This is the second in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first, introductory essay, can be found here.]

What about democracy?! We should let the people vote for whomever they want!

Perhaps the most common objection to enforcing Section Three is that doing so would be “undemocratic” in some sense.  Taking Section Three seriously, and applying its constitutional disqualification rigorously, it is said, would interfere with the right to vote.  It would impair the right of the people to select their own leaders.  It would be contrary to democracy.  It would be downright unAmerican!

So the charge goes.  In reality, this is more a political objection than a truly legal one (though it is sometimes cast in legal terms).  It is ultimately an objection to Section Three itself – an objection to what the Constitution says and does.  It is at bottom an anti-constitutional argument – an argument for not complying with what the Constitution requires.  In the end, the argument, notwithstanding whatever rhetorical appeal it might have, is wholly unpersuasive as a legal matter.

This objection comes in many rhetorical forms:

“Removing an opposition candidate from the ballot,” we are told, “through the exercise of judicial power is a remarkably antidemocratic act.”

“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.”

“If the arguments for disqualification are iffy, they should be rejected and the question of Mr. Trump’s fitness for office left to the voters to decide.”

These are different ways of saying much the same thing.  However cast, the substance of the objection is always pretty much the same.

The argument has a certain intuitive appeal:  everybody supports “democracy” as an abstract proposition.   But all versions of the argument share a common analytic flaw:  they beg the relevant legal question entirely.

We begin with first principles.  Our democracy is a constitutional democracy. The Constitution both channels and constrains democratic choice, and Section Three is one of those many constraints. It is a fundamental feature of the supreme Law of the Land.  Accordingly, once we figure out exactly what constraints Section Three in fact imposes, that should settle the matter.  The “democracy” objection is thus a complete red herring. If the Constitution imposes such a disqualification, that is indeed a limitation on voting and democratic choice.  But it is a limitation that must be honored in a constitutional republic that imposes specific limitations and checks on the democratic political process.

The fact that the Constitution both channels and constrains democratic choice is evident from many different provisions. The Constitution constrains what government may do.  It limits—through its grant of only limited federal powers, through its restrictions on state powers, and through its protection of individual rights—what democratic majorities can do, whether through Congress, through the states, or even through popular referenda. As the Supreme Court memorably put it in the case of West Virginia State Board of Education v. Barnette, the Constitution removes certain matters “from the vicissitudes of political controversy,” placing them “beyond the reach of majorities and officials.” Where the Constitution speaks to a question, such matters “may not be submitted to vote; they depend on the outcome of no elections.”  No matter how big the electoral majority, the Constitution is higher law that ordinary elections cannot change.

The Constitution’s rules governing the elections and the electoral process are likewise supreme law.  As to the specific question of eligibility for elected office, the Constitution restricts the right to vote, indirectly, by restricting who is eligible to hold specified elected offices.  The President must be at least thirty-five years old.  The President must be a “natural born” U.S. citizen, rather than a naturalized immigrant.  The President must have been a resident of the United States for 14 years.  The President must not have been elected to the presidency twice before.  Age, residency, and citizenship restrictions all apply to Senators and Representatives as well.

All of these restrictions limit democratic choice.  All of them could be decried as “undemocratic” in that sense.  We cannot vote for former presidents Barack Obama or George W. Bush or Bill Clinton because they are disqualified from the presidency by the Twenty-second amendment.  We cannot vote for former California Governor Arnold Schwarzenegger because, having been born in Austria to Austrian parents, he is constitutionally ineligible to be president.  We cannot by our votes constitutionally choose a twenty-five year old for president. We cannot select a dead man, or a live dog, to be president, as neither one is a constitutionally eligible “person” within the meaning of the Constitution.  All of these provisions limit the right of the people to elect whomever they wish.  All of these provisions are in that sense “undemocratic.”  Are they all equally subject to condemnation in the pages of the New York Times?  Are these provisions of the Constitution un-American?

This point runs deeper too. It runs to the structure of presidential elections themselves. In 2016, one of the candidates for President, Hillary Clinton, won a majority of the population’s vote for President. But the other candidate, Donald Trump, became President because of the plain rules of the Constitution, which decides the presidency through the electoral college, and thus the electoral vote, even if that is not what a majority of the voters chose. Donald Trump lost the 2016 popular election by almost three million votes, but became President nonetheless because we follow the Constitution, not simple majority votes. That is “undemocratic,” in a sense, but it is also basic constitutional law. (The same thing has happened in at least three earlier presidential elections, and there was another in which no candidate had an electoral vote majority.)

While there have been plenty of criticisms of the electoral vote system, virtually nobody denies that it is the law. Right-thinking, law-abiding citizens expected supporters of Hillary Clinton to stand aside and accept the election of Donald Trump, “undemocratic” though it might be, because the law is the law and the rules are the rules and that is the only way for a constitutional democracy to survive. And with a few ignoble exceptions, they did. For Trump’s supporters and enablers to turn around now, and demand special exemption from constitutional rules they find inconvenient or undemocratic does not pass basic civics.

The essential problem with the “undemocratic” objection, in all its forms, then, is that it is simply legally irrelevant.  It is empty political rhetoric that elides the core legal question of constitutional law:  Does Section Three impose a constitutional ban on officeholding that applies in the specific situation at hand?  If the answer is yes, we are not at liberty to ignore the Constitution’s command – at least not if we purport to be governed by the terms of a written constitution. (Indeed, at least one of the objectors quoted above, Professor Samuel Moyn of Yale Law School, is explicit about this. In the pages of the New York Times he has also written that he seeks to “reclaim American from constitutionalism.”)

What is more, these constitutional constraints in fact serve basic democratic functions, and that is especially true of Section Three. As others have pointed out, Section Three’s disqualification from office of oath-breaking former officers who subsequently engaged in insurrection against the U.S. Constitution by attempting to overthrow or displace lawful government under the Constitution, is itself a fundamentally democracy-protective provision of our Constitution.  It protects lawful United States government under the Constitution, by excluding from power men and women who, as demonstrated by their actions, would overthrow democracy and democratic choice under the Constitution.

Indeed, it is precisely Donald Trump’s efforts to upend lawful democratic electoral choice under the Constitution that constitute the gravamen of Trump’s disqualification by Section Three.  Trump’s efforts to overthrow the result of a lawful election and to install himself in office notwithstanding having lost that democratic constitutional election and to thwart, by fraud or by force, the peaceful transition of power to the election’s winner, form the core of the factual and legal case for Trump’s disqualification.  These efforts were profoundly anti-democratic interferences with the processes of constitutional democracy.  To decline to enforce Section Three in such circumstances may be the most anti-democratic choice of all.

Our friend Michael McConnell offers a subtle variation of the “democracy” argument.  His argument is not that Section Three should not be followed at all.  It is that Section Three’s terms should be given as narrow a reading as possible so as to limit their supposed ill effects and susceptibility to abuse.  In a post on this blog last fall, Professor McConnell conceded that he had “not done the historical work to speak with confidence” as to the original meaning and scope of the terms “insurrection” and “rebellion” as those terms were used in Section Three. Nonetheless, McConnell “would hazard the suggestion” that “we should seek the narrowest” reading of the terms that we can fashion, for the policy reason that “we should allow the American people to vote for the candidates of their choice.”  (Professor McConnell recently repeated this strict construction position in an on-line article, available here, which we will discuss shortly.)

Professor McConnell’s variation on the “democracy” argument is no more faithful to the Constitution than the direct argument that we should not enforce Section Three at all because it is supposedly anti-democratic. Like Chief Justice Chase’s opinion in Griffin’s Case – discussed at length in our original article manuscript – Professor McConnell lets his political skepticism of Section Three drive his legal interpretation of its terms.  This is fundamentally methodologically unsound, at least for someone committed (as we are) to “originalism” – the project of seeking to ascertain, and faithfully apply, the original, objective meaning of the Constitution.

A faithful constitutional interpreter should not begin by choosing a political principle and then fashioning a reading of the text trimmed to suit those purposes. The right approach is to seek first the correct meaning of the Constitution itself, and then to apply it faithfully as the law requires. Reading the text narrowly in light of a pro-democracy principle – or really, a pro-eligibility-even-of-possible-insurrectionists-principle – would be justified only if the text itself, or its original legal meaning, reflected that principle. But of course Section Three was enacted precisely because its framers thought its targets could no longer be trusted with power, even if they won a popular vote.

In fairness, McConnell does not really appear here to be attempting to be a constitutional “originalist,” seeking the objective meaning of the text.  Instead, he is being more a “Burkean” conservative seeking the result he finds least disruptive.  One can respect such a stance and still make the observation that it is trimming the Constitution to suit political purposes.

In a more recent on-line essay, Professor McConnell is even more explicit about this approach, laying out his “interpretive priors” under a bold-face heading asserting that “Section Three should be strictly and narrowly construed.”  Again, this is wrong. The Constitution should not be interpreted with a thumb on the scales in favor of either a “narrow” reading or an “expansive” reading.  As the late Justice Antonin Scalia (a noted originalist), and Bryan Garner explain in their treatise Reading Law, contriving an artificially “strict” or “narrow” interpretation of a text is as improper as contriving an unjustifiably expansive interpretation. Scalia and Garner quote Joseph Story for the proposition that we should seek the objective, reasonable interpretation of a legal text, not one driven by a predisposition one way or another.  One should not indulge a hostility to the text and therefore seek to construe it in a “strict” fashion:

If . . . we are to give a reasonable construction to this instrument, as a constitution of government established for the common good, we must throw aside all notions of subjecting it to a strict interpretation, as if it were subversive of the great interests of society; or derogated from the inherent sovereignty of the people.  (Reading Law at 355, quoting 1 Story, Commentaries on the Constitution of the United States, §423, at 300 (2d ed. 1858)).

So too for Section Three:  It should not be read with a jaundiced eye, “as if it were subversive of the great interests of society,” and construed narrowly out of hostility to its policy.

In general, the objection that our reading of Section Three is “undemocratic” largely misses the mark.  Section Three is a part of our Constitution, means what it means, and does what it does. Whether one thinks that Section Three is in tension with democratic values or, quite the reverse, is fundamentally democracy-protective, Section Three is part of our supreme Law of the Land and should be enforced in accordance with its terms.

The “democracy” objection is really a political objection to following the Constitution because one dislikes what it states.  It is an objection to complying with the Constitution – an argument for not following the Constitution, because of political hostility to what the document says and does.  As such, we think it fairly described as an “anti-constitutional” argument that has no proper place in legal analysis of the Constitution as a binding, authoritative written legal text.