Whatever the Supreme Court does in its decision about whether Donald Trump can be disqualified as a candidate for
president in the 2024 election...
"... I hope its opinion hews as closely as possible to the ordinary
meaning of the constitutional text. That is, after all, the Supreme Court’s
job. The Court’s job is not to reach statesmanlike compromises based on
political judgments about how particular decisions will be received. Its job is
to interpret a written document. (Adam
Unikowsky, 9 January 2024)
Adam Unikowsky expresses his hope that the Supreme Court will hew
closely to “the ordinary meaning of the constitutional text” when interpreting
Section 3 of the 14th amendment. Scholars who hew in this direction
are often referred to as ‘originalists’ and their preferred theory of constitutional
interpretation is called ‘originalism.’ The
‘ordinary meaning’ of the constitutional text provisions is the meaning that was understood by the framers, judiciary
and the people at the time of text’s adoption.
Originalism should not be confused with Textualism. Originalism is historical and looks to the
past when interpreting the Constitution.
Textualism is unhistorical. Textualism
ignores the history of constitutional provisions and looks only at the plain
text. For example, the textualist
reading of the First Amendment says that “Congress shall make no law… abridging
the freedom of speech or of the press.” The late justice
Hugo Black wrote that if this is what the Amendment says, then this means “shall
make no law” without exception. Thus, on his reading, Congress shall make no
law prohibiting the disclosure of military secrets, slander, libel or yelling “Fire”
in a crowded theatre when there is no fire.
Of course, this is not what the Framers intended or what people in the
18th century understood by the First Amendment. Hence, what an originalist must do is to look
behind the text to discover the meaning of the Amendment in its historical
context.
How should Section 3 be interpreted using the originalist
theory of interpretation? What did the
Framers intend or understand when they wrote Section 3?
Section 3: Disqualification from
Holding Office:
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 other
words, if (1) a person has engaged in insurrection or rebellion against the Constitution
or given aid or comfort to the enemies of the Constitution, and (2) that person
has previously taken an oath to support the Constitution of the United States “as
an officer of the United States… etc.”, then (3) they shall be disqualified
from holding any office, civil or military, under the United States, or under
any State.
For
example, if a sitting U.S. Senator engaged in the insurrection of January 6,
2020 at the U.S. Capitol, then said Senator violated his oath to support
the Constitution and will be disqualified from holding any office, civil or
military under the United States or any other State.
Both the
originalist and the textualist would agree that “disqualified” does not mean “indicted.” If a a 24-year-old person files a form to
stand as a candidate for the 8th district of California in the House
of Representatives and is later found to be underage, then she is declared ‘not
qualified’ to stand. This is not an indictment.
She has not violated criminal law. And so
it is with someone who is disqualified because she has violated her oath to the
Constitution.
So far, so
good. At this point, there is no debate about
meaning between the originalist and the textualist. However, some originalists have gone so far
as to claim that there was no insurrection that took place on January 6.
They say this because their historical paradigm
of an insurrection is the Civil War. They
agree with the dictionary definition that an insurrection is “an act or instance of revolting against civil authority or an
established government.” But like the Civil War, it is a revolt that lasted
much longer than the few hours of revolt that occurred at the Capitol on
January 6.
But this paradigm
was rejected by the 1866 framers when they removed the phrase “the late
rebellion” from an early draft of Section 3. There is no specific reference to
the Civil War in the final revision.
An
important qualifier was also added: “those who were to be excluded from
government service would have to have violated prior oaths to defend the
constitution by having engaged in insurrection or rebellion against [it] or
given aid or comfort to the enemies thereof.” (Portnoy). What
mattered to the framers was that those who will be disqualified from office
violated their oath to support and defend the Constitution. It does not matter whether the violation was in a civil war or in an assault on the Capitol.
Textualists
have pointed out that the words ‘president’ and ‘vice president’ are not mentioned
in Section 3 as “officers of the United States.” (They are mentioned only in the phrase “elector
of President and Vice-President.”)
Therefore, although electors can be disqualified from holding a government
office, textualists would argue that a president or vice president is immune to
disqualification.
Originalists, mindful of history, have pointed to the following
brief conversation about these words that took place in the U.S. Senate in 1866:
"Why did you omit to exclude
them?" asked Maryland Democratic Sen. Reverdy Johnson.
Maine's Lot Morrill jumped in to
clarify.
"Let me call the Senator's
attention to the words 'or hold any office, civil or military, under the United
States,'" Morrill said, ending the discussion on that point.
Morrill’s response not only implies that Section 3 covers all
those who hold a civil or military office, but it also implies that that the
president and vice-president are understood to be civil officers under the
United States.
Finally, there is disagreement about whether one who incites
an insurrection or rebellion is
engaging in it. The word “incite”
means “to stir up, to urge on” and “engage” means “to enter into contest
or battle.” These definitions are of
little help. Stirring up or urging on might
or might not count as a kind of entering into the fray. To use an example from John Stuart Mill’s On
Liberty, if I stand in front of a crowd of angry poor people assembled near
the house of a corn dealer, and I stir up the crowd by shouting “Corn dealers
are starvers of the poor,” and the crowd storms the house and kills the corn
dealer, then I am as responsible for the death of the dealer as are the people
who do the killing. In this case,
inciting merges into engaging.
I am inclined to think that if “giving aid or comfort to the
enemies” is a violation of the oath to support the Constitution, then so must
be “inciting the enemies to riot.” If
the President of the United States watches and waits while an angry crowd
storms the Capitol, and does nothing to prevent the riot, then this deliberate
omission makes the president partly responsible for the result even though he/she
was not physically present in the assault.
An inciter is in the same causal position. The inciter did not go into the Capitol with
the mob, but he/she lit the match that led to their attack.
The 64 Dollar Question. Will the U.S. Supreme Court uphold the
Colorado Supreme Court’s decision to disqualify Donald Trump as a candidate for
president in the 2024 election?
________________________________________
References
Black, Hugo. 1959. Concurring opinion in Smith v California.
CREW. 2023. The Precedent for 14th Amendment
Disqualification. https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/ See the full table of past disqualifications
from public office under Section 3:
Merriam-Webster Dictionary.
Mill, John Stuart. 1861. On Liberty.
Unikowsky,
Adam. 9 January 2024. Why the Supreme Court isn't constitutionally
barred from resolving Trump's eligibility before the election. Newsletter
adamunikowsky@substack.com