Twenty-five of the nation’s leading historians submitted an amici curiae brief in support of the decision by Colorado’s Supreme Court to disqualify Donald Trump as a candidate for the Presidency. The signers are scholars of the Reconstruction era, when the Fourteenth Amendment was written. They address with admirable clarity the issues in the case.
The issue they did not address is the one the Supreme Court justices focused on: can one state remove a candidate from its ballot? Would this create incentive for Trump states to remove Biden? Would this lead to chaos, a Trump specialty?
This is the language at the center of the case:
Fourteenth Amendment Equal Protection and Other Rights
- Section 3 Disqualification from Holding OfficeNo 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 lower court in Colorado ruled against disqualification on the grounds that the President of the United States is not “an officer” of the federal government. As it happens, the issue was discussed by members of Congress when they wrote Section 3 of the Fourteenth Amendment.
Some of Trump’s defenders claim that Congress never passed any enabling legislation. This issue was debated by Congress at the time.
The brief is interesting reading.
Diane Ravitch's blog 
Hi Diane—my APUSH classes listened to the oral arguments yesterday and I have to say that I was very disappointed that the justices seemed to ignore the historians’ briefs. This is an issue that is long-standing–both Justice Stevens in DC v. Heller and Justice Breyer in McDonald v Chicago–both over whether the 2nd Amendment confers a private right to gun ownership–complained that the majority was cherry-picking and that judges are not professional historians. In fact, the Hawaii supreme court just issued a ruling on their own gun laws challenging SCOTUS on this very point. In this 14th A case, my hope is that the historians’ briefs will be read and utilized when they make their final decisions.
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@David F — I joined this blog because Diane was all about “educating our youth” and other educational issues. Many of my answers revolve around how I would interact with students in my classroom. I spent 32+ years working with students in all grade levels and found my niche with at risk youth. One of my favorite courses was American Government. I even flew from CA to Boston to participate in We the People: The Citizen and the Constitution — what a great experience as we delved into the “Founders thoughts” and experienced primary documents. Because I loved working with young minds, I am curious what your students thought about the 14th Amendment and its clarity? I have my own thoughts, but one that stood out was key terminology as to what constitutes an officer, and insurrection to name a few. I remember telling my students, “No matter how much you dislike the person, we must interpret the law based on the facts without bias.” And then we would have some great discussions on how to think, not what to think. Thanks for inspiring young minds.
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Honestly, most thought the argument that somehow Thaddeus Stevens (we watched the Lincoln movie where he was played by Tommy Lee Jones) would even entertain this argument as absurd. There was some discussion of what an insurrection was, and my more conservative students tried to compare Jan 6 to BLM (which I squashed). Overall, the majority seemed to think Trump should be excluded.
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Your students should be on the Supreme Court!
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David F,
You are in a tough position. You teach AP history and you teach them the importance of history. Yet they listened to SCOTUS hearings in which the justices totally ignored history. I’m
As frustrated as you.
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25 left-wing historians conveniently interpret history to reach the conclusion that for partisan reasons they favor. Ho-hum; just another day in modern academia. Even the liberal SCOTUS Justices seemd very skeptical about the Colorado decision, where three Democratic-appointed state supreme court Justices dissented from the majority opinion. It’s better to beat Trump at the ballot box.
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I loved your work with Sean Donnelly in the World Security Bureau in the 1980s.
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LOL! I thought the same thing when I saw his name. His work on the Cassadine matter was stellar.
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It would have been better to see him in a jail cell where he belongs.
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Putin is likely happy about the success of Jeff Sessions. Sessions had a brief tenure at DOJ but, his time there has continued significance in his appointments of Republicans Robert Mueller and Robert Hur (subsequently assigned by Garland to the Biden documents case).
If Biden is re-elected, I fear for the nation if Garland is kept on at DOJ.
Sessions, beyond the lie about contact with Russians, is noteworthy for creating the Religious Liberty (which means imposition of religion) Task Force. Under the auspices of his government office, Sessions created the annual “Religious Freedom Ministerial.”
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Jeff Sessions, along with Steve Bannon and Stephen Miller, is responsible for Trump’s run for the Presidency. The Frontline documentary “Zero Tolerance” details how these three racists looked around for a candidate who would carry their racist, anti-immigrant policy forward and settled on Trump. The untold background to the infamous ride down the escalator and to the adoption of the Build the Wall campaign platform by candidate Trump.
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And yet the press reports as if Trump is of his own making. I think the ‘never Trumpers” get caught up in this because they can’t admit their complicity in the project. (https://www.nytimes.com/2024/02/08/opinion/trump-republicans-immigration.html) Will they ever wake up?
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can one state remove a candidate from its ballot?
But we already know that states have removed candidates from ballots in the past. So why is this suddenly in question?
The next time a 30 year old or someone born in another country or a presidential/VP ticket where both candidates are from the same state, who decides who removes them from the ballot if the Supreme Court rules that all the previous removals have been illegal?
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The question of whether one state or a collection of states can unilaterally end a presidential campaign by removing a candidate from the ballot is a real one. What if AOC were leading in the polls for the Democratic nomination and Texas and Florida removed her from their ballots, arguing that her participation in the protest at the Supreme Court for which she was arrested amounted to her willfully abetting the murder of the unborn and thus barred her from running for the office for having committed high crimes and misdemeanors? This is a farcical scenario, but it’s not beyond imagining in some future time in the U.S. Oddly, people can be convicted of many of the most serious crimes and still legally run for president. And, of course, abortion is not murder. But Texas and Florida seem quite willing to flout the law and interpret it in their own bizarroland ways.
This is the type of scenario that Justice Kagan, a staunch liberal, thinks that we must avoid. I don’t agree with her, but I get her point. I think that there should be judicial review all the way up to the Supreme Court of such removals and that Congress needs to pass legislation to say that such removals cannot happen after a set time in an election year. But I don’t think that they should be prohibited. However, I’m up in the air about this issue. It’s a thorny one.
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Bob,
That argument makes no rational sense. If the new law is that you can never hold someone rich and powerful who did something wrong accountable to the Constitution (or to any law), because in retaliation an unethical and corrupt court will punish an innocent person, then we are lost as a democracy anyway.
So only poor, unprivileged folks can ever be held accountable? Because if someone in power is held accountable, his corrupt supporters elsewhere will retaliate by using their power corruptly and punishing innocent people?
That’s the end of democracy. Truly.
We heard this same argument when the Democrats first impeached Trump after the Zelensky extortion phone call. “We can’t impeach a president who did something wrong, because then the Republicans will impeach an innocent president.”
It was wrong. And once we let fear of retaliation upon innocent people guide our country, the rich will always be above the law.
I still remember a time when that kind of argument would be rejected as outrageous. Imagine teaching elementary school students that view of the law. It no longer is about right and wrong or following the law, it’s about being careful not to punish a lawbreaker because he has friends in high places who will retaliate against innocent people.
The fact we have normalized a Republican party who uses its power to hurt innocent people who won’t do their bidding or whose popularity might threaten their power is truly frightening.
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As opposed to irrational sense? ROFL.
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Much to my surprise I found what I heard of yesterday’s argument compelling. I think the potential for abuse of a ruling in favor of Colorado is very high, particularly when considering states with Republican super majorities. However, the hypocrisy of our current court was in full view. While embracing states rights in Shelby (Voting Rights) and Hobbs (Abortion) Justice Roberts went out of his way to deny state viability on allowing presidential candidates on the ballot. From the 18th century witch burning judge during the Hobbs case to Thomas’ asking why Article 3 wasn’t applied in the 19th century, history only applies when it suits their argument. I have posted two discussions I found compelling:
“We have a court that for the first time in 21 years found humility?”: https://www.youtube.com/watch?v=PRUvc9Wqa0U
Law Office History: https://www.youtube.com/watch?v=hSgQU7jthDM
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I think the potential for abuse of a ruling in favor of Colorado is very high, particularly when considering states with Republican super majorities. Same here.
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But the confirmation bias overreach on this court is troubling. I think we are now in uncharted waters where right wing partisanship determines Constitutional veracity. Our Founding Document is being shredded and too many don’t seem to see the urgency.
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If we are already deciding in advance not to pursue what is just because of fear that the Republicans might in the future pursue what is corrupt, then that bodes very poorly for our country’s future.
We have laid down our weapons and the right wing didn’t have to fire a single shot. Instead of fighting for justice, we have given up on it because those who are corrupt might retaliate.
Whenever we do this, the Republicans go right ahead and do those unjust actions wherever they have power anyway! And we no longer have any principles to stand on.
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Whenever people consider making something a law, by statute or by precedent, they have to consider to the extent that this is possible what its application would be in future, in differing circumstances. That’s because laws apply generally.
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Bob, you are right. People don’t make laws that are in effect only to meet present issues but that remain in effect until they are repealed or superseded.
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It seems to me clear, based on what the historians wrote in their brief, that Trump is disqualified under the 14th Amendment. But this creates a significant Constitutional issue that cannot be ignored.
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Bob,
It seems to me clear, based on what the historians wrote in their brief, that Trump is disqualified under the 14th Amendment. Therefore, NOT disqualifying him creates a significant Constitutional issue that cannot be ignored.
NOT disqualifying a sitting president who used his power to foment an insurrection to remain in power creates a significant Constitutional issue and it is Orwellian that so many people choose to ignore the significant Constitutional issue it creates.
Democracy is on life support until we recognize that we have all been brainwashed to accept that spurning the Constitution is normal but the dangerous thing would be for us to follow the laws set out by the Constitution because that creates CONSTITUTIONAL ISSUES.
Normalizing the spurning of the Constitution is what creates the biggest Constitutional issue of all.
Obeying the law doesn’t create Constitutional crises. Spurning the Constitution creates Constitutional crises. Normalizing spurning the Constitution creates Constitutional crises.
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Paul Bonner,
Ironic indeed! The justices reach back into the past to assert states’ rights. States’ rights to determine a woman’s right to control her body. But not states’ rights to determine the rules for voting. There is a long and well-established power of states to write their rules for voting.
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nycpsp– I don’t agree with your position here, which you have expressed one way or another in many of your comments on the CO case, immunity case, etc. It is perhaps one of SCOTUS’s most important jobs, to consider how a ruling could be used/ misused in the future by any appealing plaintiff or defendant in future, regardless of party affiliation, political slant, wealth or poverty, corporate or individual, or any other distinction one can imagine. They have to look at every angle or they are neglecting their duty. When PABonner or Bob speak of potential abuse by Republicans of a ruling in favor of CO, think of it instead as potential abuse by anyone with any agenda.
Or think of a different context: take some state’s attempt to ban mifepristone, an FDA-approved drug, within their own state, because of their particular abortion laws. SCOTUS would have to consider the possibility that any state could potentially ban the use of a nationally-approved medicine because of some quirk of some other state law. E.g., some state decides to ban naloxone as a ‘deterrent’ to abusing opioids, in connection with their draconian drug laws.
But I am with you on the problems our Constitution presents in this particular situation. I.e., a former president with plenty of evidence potentially labeling him as one who incited, aided/ abetted an insurrection, running again for presidency.
I don’t think the Constitution supports states’ individually deciding whether a candidate for national primary can be deleted from ballot because state decides he meets the threshold of Sec3 14A for disqualification. The problem being, Constitution prevents him from holding office, but not from running for it.
The prohibitions against underaged or non-native candidates are clear, categorical, require nothing but a cursory doct search to determine. The prohibition against insurrection requires better definition than provided in Constitution, and lacking that, due process examining evidence [which is not SCOTUS role].
Thus we end up with about 4 months between Rep primary and election to prepare case, and [if necessary] 11 or 12 weeks between election and inauguration to prove the disqualification. And even then, if I understand the situation correctly, we’re stuck with insurrectionist-chosen VP to run the country!!
The only thing SCOTUS can do at this point [as recommended in the Teri Kanefield link provided by Christine Langhoff in Diane’s previous post on this issue] is provide a more precise interpretation of Sec3 14A insurrection [/ incitement, aiding/ abetting]. IMHO, I think they have to prevent states from eliminating candidate from primary ballot, as it doesn’t synch with Constitutional disqualification provision [which doesn’t apply to running for office]. But beyond that technicality– without a probative disqualification of candidate that weighed evidence re: insurrection, we essentially disenfranchise voters for a candidate who has not been legally disqualified.
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Trump has us in a bad place. He has seized the power of the legislative branch through his domination of the Republican (formerly known as) Party. This was demonstrated by the immigration controversy recently. He has compromised the integrity of the Supreme Court by appointing three judges whose ideology is far from mainstream in the public. This has been demonstrated by recent plebiscites showing support for abortion rights i conservative states in the wake of the Dobbs decision.
We are now in the position of allowing one state to disqualify a presidential candidate with all the problems associated with that or ignoring the fact once again that Trump committed crimes worthy of conviction and time served. Will the Supremes actually see that their power has been usurped by a would-be tyrant? How will they split the necessary hairs on all the other decisions in order to keep their share of the power?
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I was always taught that the three part federal government was set up so that there would always been tension that allows one to keep the other in check. The two party system, feared by Washington, has now evolved to tip the balance. Republicans in the legislative branch gave up their power to the executive branch at least two decades ago. Now we have a House that absolutely refuses to legislate. Once Trump followed the recommendations of the Federalist Society, the Supreme Court now has the upper hand refusing any meaningful ethics requirements and taking power away from departments they consider part of the administrative state. The lower courts might actually bring Trump down, but the Supreme Court will continue to carry out responsibilities for the Oligarchy. We will soon see an “enumerated” decree ignored in Article 3 and the further erosion of a Constitution which is being interpreted by some as a suggestion rather than law.
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You make good points. I am especially in agreement about the lack of legislation. By refusing to govern, the legislative branch has given power to the Executive. Are we to see our Republican experiment go to some new Cesar?
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Or Worse, a judicial theocracy…
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pabonner– I think if you research it, Congress has been punting legislative responsibility to both Executive and Judicial branches, incrementally, for many decades—and definitely both parties, not just Republicans. This has led to both dominance of executive agencies in shaping how laws are enforced, and judicial activism from the bench. I would guess since the 1970s, but that may just be based on my particular lifespan (could have started beforehand).
The reason, obviously, is structural: members of Congress undergo elections every 2 or 6 yrs. Executive agencies, once formed, are composed primarily of lifetime bureaucrats, though their leadership changes with each administration. Federal judges & SCOTUS are appointed, and serve much longer terms that Congressmen.
This only presents a problem—IMHO—because political parties since late ‘70s have become increasingly beholden to campaign coffer-stuffers—simply because the # of corporate & wealthy individuals have increased their share of national wealth by leaps and bounds over the last 45 yrs. Hugely just in the ‘80s, then put on steroids by Cit-United decision. We had modest campaign donation laws for a while, but donor influence quickly put an end to that. Congress’s legislative hands have long been tied by donors, who have far more influence than voters.
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ick cherry open stated right before he became Vice President that his intention was to get power back in the hands of the President. Nothing like leading the country blindly into two wars to get that project started.
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So much has changed since the 14th Amendment was written. States have always decided who got on the ballot. This is first about a primary election, and we didn’t even have those in the 1870’s. The 1st primaries came much later. There were about three when JFK was nominated in 1960. It’s not a miniscule point to say that the US is a “republic,” not a democracy. The Founders intended the politicians in the various states to pick the delegates, etc. Our Presidential elections are ultimately–as intended–(whether we like it or not, and I don’t) –the states, not the “people” picking the President.
I remember when I was a boy, how the Democratic President–Truman–was kept off the ballot in several Southern states. Nominees were picked by convention, so several Southern states re-named their parties and picked Strom Thurmond. (Later those “Dixiecrats” became Republicans). As you know, Truman was re-elected anyway in ’48.
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Jack,
You make a great point. In my youth, presidential candidates were chosen at the national convention. There were some primaries but not as many as today. Many states would nominate a favorite son. Lots of politicking and vote-trading happened on and off the floor. Seldom was a candidate chosen on the first ballot. Sometimes it took multiple ballots to agree on a candidate. I remember staying up late and listening on the radio to see what would happen. Now the national convention is a coronation.
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As some have already noted, Justices’ questions today seemed to ignore any reference to historical amicus curiae. The historians only addressed two of the multiple Trump defenses: whether president [/ VP] is included in the “officers” subject to Sec3 14A disqualification, and whether execution of this Section requires “enabling legislation” from Congress.
But the fact that SCOTUS ignored these issues is typical of Roberts Court’s cherry-picking approach to the Scalia supposed gold standard of “originalism.” Bruen ruling [2022] overturned a 100-yo NYS law, despite supposed deference to long-accepted tradition (referenced in Dobbs). Dobbs strangely referenced ancient, anachronistic traditions, when they had right under their nose 250 yrs of Eng common law [1620-1868] where abortion was not a legal issue until fetus was kicking in womb [20-24 wks] + 49 yrs of Roe v Wade “OK until viability” [about 22 wks] = 300 out of 400 yrs of precedence/ tradition. And Heller turned English standard grammar [1791-2008] on its head, claiming that the still-used absolute construction was something else– “prefatory” vs “operative” clauses [not even grammatical terms], which magically turned 2A into a Constitutional right for individuals to carry arms for self-defense anywhere anytime.
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