AN ORIGINALIST INTERPRETATION OF SECTION 3 OF THE 14TH AMENDMENT TO THE CONSTITUTION

 

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 14^th 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 18^th 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 8^th 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?

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References

Bassin, Ian. Protect Democracy. December 2023. In deciding Trump’s ballot eligibility, the Supreme Court should apply the law without fear or favor.  https://protectdemocracy.org/work/trump-ballot-eligibility-colorado-supreme-court/

Black, Hugo. 1959. Concurring opinion in Smith v California.

CREW. 2023. The Precedent for 14^th 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.

Portnoy, Steven. 19 December 2023.  What the framers said about the 14th Amendment's disqualification clause: Analysis. ABC News. https://abcnews.go.com/Politics/framers-14th-amendments-disqualification-clause-analysis/story?id=105996364 

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