Say what you will about Donald Trump, he is a prodigious generator of constitutional law. His constant legal troubles have been a boon to lawyers and scholars in the field. No one in living memory has done more to cast light on dusty provisions of our founding charter, from the obscurities of the foreign emoluments clause to the intricacies of the 12th Amendment and the tabulation of Electoral College votes. By going through it twice, Trump bequeathed to every informed citizen an in-depth knowledge of the impeachment process. Law students can thank the former President for Trump v. Vance, Trump v. Mazars, Trump v. Hawaii, and many other cases that have already swelled the constitutional syllabus.
Yet Donald Trump’s most important contributions to constitutional case law are still to come. His four pending criminal trials will not be resolved until the courts have sorted through his lawyers’ many creative arguments about executive power, presidential immunity, and federalism. And his 2024 campaign to return to the White House, if successful, could unleash a whole new round of constitutional stress-testing.
To get there, however, Trump first needs a big assist from the U.S. Supreme Court.
In Trump v. Anderson, the Court has agreed to hear an appeal from the Colorado Supreme Court’s bombshell December 19, 2023 ruling in Anderson v. Griswold. Citing then-President Trump’s involvement in the January 6, 2021 assault on the U.S. Capitol, the Colorado court set off a legal and political shockwave by tossing Trump’s name from the Colorado Republican primary ballot. The Rocky Mountain jurists based their decision on a previously obscure clause in the 14th Amendment barring persons who have “engaged in insurrection or rebellion” against the Constitution of the United States, after previously having sworn to uphold it, from serving in federal or state office. Nine days later, using much the same reasoning, the Maine Secretary of State struck Trump’s name from her state’s ballot. Meanwhile, similar efforts in other states have so far failed to win judicial support, though many are still pending.
Some cases raise a hornet’s nest of issues. The Anderson case is a many-winged mansion of murder wasps, each with the potential to deal nasty stings to the Supreme Court, the Constitution, and to America’s ever-divided political camps. The Court will need every bit of legal skill and political savvy it can muster to navigate a path through the swarm. Even a careful, well-grounded decision is guaranteed to enrage a large portion of the country. A poorly reasoned or overtly political decision, however, could do lasting damage to the Constitution.
Was January 6, 2021 an “insurrection or rebellion” against the Constitution within the meaning of Sec. 3 of the 14th Amendment?
The 14th Amendment was approved by Congress (1866) and ratified by the states (1868) in the aftermath of the Civil War. That was the “insurrection or rebellion” that its drafters had most immediately in mind. It was a big one: four years of war and upheaval, 600,000 dead, and millions who had, in one form or another, engaged in treason. The drafters were also witnesses to the initial failures of Reconstruction, as the newly re-admitted states of the South began electing former rebel generals and politicians to high office. Georgia even sent former Confederate Vice-President Alexander Stephens to the U.S. Senate in 1866, though that body refused to seat him. Concerned that the losers of the war would somehow manage to prevail though politics, Congress added Sec. 3 to the 14th Amendment. Though far less famous than the Amendment’s due process, equal protection, and citizenship clauses, Sec. 3 was similarly aimed to preserve the Union’s Civil War victory. Nevertheless, Sec. 3 is clearly written to apply prospectively (to future rebellions and insurrections) and as well retrospectively (to the recent Civil War). The entire text reads as follows:
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.
While the January 6 attack on the Capitol was not on the same scale and did not pose the same danger to the survival of the Union as Southern secession in the Civil War, it was still by far the most organized and serious attempt to use violence to seize (or retain) federal political power in the 235-year history of our Constitution. It would meet most definitions of an “insurrection”—whether contemporary or from the era of the 14th Amendment—such as “any combined resistance to the lawful authority of the state, with intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence.” (Ga. Code 1882).
Of course, the perpetrators of the January 6 attack would argue that their purpose was to fulfill the Constitution (by insisting on their understanding of the “true” election result), rather than to resist its authority or destroy the Union. However, their allegations of electoral fraud were, at best, delusional—or, at worst, a knowingly fraudulent pretext. The protestors had every right to assemble and demonstrate against the election result, even if they were mistaken about it. But when the protest turned into a violent attack, with the apparent objective of blocking the Electoral College vote count, it became an unlawful attempt to prevent the operation of the Constitution and therefore crossed the line into an insurrection.
There remains a factual question of whether the violence of January 6 was the spontaneous action of an angry crowd, or whether it was the result of a premeditated and organized plan. It is plausible that some participants who showed up for Trump’s rally at the Ellipse were simply swept up by the momentum of the crowd. Others arrived with clubs, pepper stray, zip ties, and T-shirts proclaiming “MAGA Civil War, January 6, 2021”. Setting aside the variable intent of individual rioters, however, the weight of the evidence shows that the mob was assembled by its organizers and prepared for the purpose of putting physical pressure on Congress and the Vice President, including by the threat and use of violence. The federal criminal convictions already secured against some of the organizers on charges of “seditious conspiracy” support this conclusion.
Did Donald Trump engage in “insurrection or rebellion” against the Constitution or give “aid and comfort to the enemies thereof”?
Even if January 6 was an insurrection, and even if it was intended to subvert the Constitution, Donald Trump’s personal responsibility for those events remains somewhat in dispute. Did he himself engage in “insurrection or rebellion”? After all, he never set foot in the Capitol (though he may have intended to). Instead, he watched events unfold on television from the confines of the White House, gripped by an uncharacteristic silence. But generals rarely lead their troops from the front line, and Trump would hardly be the first conspirator to goad others into committing criminal acts on his behalf.
Trump’s responsibility for the insurrection, therefore, is another tricky factual question, requiring analysis of his actions and statements prior to and on January 6. Trump could argue that even if the January 6 attack was an insurrection, he did not himself intend or encourage a physical attack on the Capitol. Rather, it was the result of over-enthusiastic actions taken by his lieutenants and supporters, combined with the combustibility of emotions on the day of the event. He will certainly cite his few words of caution in his January 6 speech to the incipient rioters (“peacefully and patriotically make your voices heard”). Against this contention there is a mass of evidence—such as Trump’s own messages to supporters, summoning them to Washington DC on January 6 with promises that “[it] will be wild!”, the bulk of his speech encouraging them to march to the Capitol and “fight like hell,” and many similar gestures. Most telling is Trump’s silence and inaction for several hours while the attack raged. Despite many pleas from inside his own administration and members of his own party in Congress, he did not condemn the attack or send more federal resources to defend the Capitol. That suggests he was at least comfortable with the violent actions taken by his supporters. Only after the police had turned the tide against the rioters, many hours after the attack began, did Trump make a televised statement. While reiterating his false claims of a stolen election, he sullenly told the rioters to “go home,” but added, “we love you, you’re very special.” At the very least, that sounds a lot like “aid and comfort” to an insurrection. And in the months and years since January 6, Trump’s expressions of sympathy and solidarity for those who attacked the Capitol on his behalf have only intensified.
It remains to be seen whether Trump’s responsibility for January 6 can be framed as a violation of an existing criminal statute and proved beyond a reasonable doubt—a task that is keeping Special Counsel Jack Smith quite busy. But if we apply a simple preponderance of evidence standard, it is hard to avoid the conclusion that Trump personally intended, approved, and supported the use of violence to achieve his aim of blocking the electoral count and the transfer of power. The Colorado Supreme Court went even further, affirming a lower court’s determination in Anderson that Trump’s responsibility had been established by “clear and convincing evidence.”
Who Gets to Decide if Trump Is Barred from Office?
Of course, everyone is entitled to their own opinion on whether January 6 was an insurrection against the Constitution and whether Trump “engaged” in that insurrection. Which brings us to the hardest questions presented by Anderson: Whose opinion matters? Who, under the Constitution, gets to decide whether Trump is ineligible?
The 14th Amendment says that Congress can remove the ineligibility (by a 2/3rds vote), but it does not specify who can impose the ineligibility in the first place. Some have argued that Congress must first pass a law to give effect to Sec. 3, without which it is a dead letter. Proponents of this view can point to Sec. 5 of the 14th Amendment, which provides that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress did pass such a law after the Civil War: the Enforcement Act of 1870 enabled federal prosecutors to seek a writ to remove persons from government offices who were disqualified by Sec. 3. However, as Professors Akhil Reed Amar and Vikram David Amar point out in their amicus brief in Anderson, federal authorities began to enforce Sec. 3 in 1868, well before the Enforcement Act took effect, supporting the view that Sec. 3 is “self-executing.” (Take note, originalists!)
The Colorado Supreme Court (and, later, the Secretary of State of Maine) also concluded that Sec. 3 is self-executing—requiring no further action or determination by Congress or anyone else. The Colorado court cited no less an authority than the U.S. Supreme Court’s determination in the Civil Rights Cases (1883) that the 14th Amendment “is undoubtedly self-executing, without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” By this logic, it is simply a requirement to be eligible to be President (like being over 35 years old and a natural-born citizen of the U.S.) that a candidate must not have broken an oath and engaged in rebellion or insurrection against the Constitution. Under Colorado law, a candidate who is ineligible to serve in an elected office cannot appear on the ballot for such office. The Colorado courts claimed that they can make a factual determination, based on a preponderance of the evidence, that Trump is constitutionally ineligible. Theoretically, each state could make a different factual determination on this question, resulting in Trump appearing on some election ballots and not on others.
Such a result would surely be wrong. There is much room in our federal system for state control over election laws. But Trump’s eligibility to serve as President is a purely a question of federal constitutional law. Among observers, there is plenty of room for differing opinions about Sec. 3 of the 14th Amendment, but as the Supreme Court has consistently held since Martin v. Hunter’s Lessee (1816), the interpretation of the Constitution and federal law should and must be the same for all states. There are also factual questions to resolve (what exactly did Trump do?), but the facts of January 6 are the same regardless of which state is examining them. We could imagine a dispute about whether another presidential candidate is a “natural-born citizen” of the United States—for example, the late Senator John McCain, who was born in the Panama Canal Zone to U.S. military parents. The issue was in fact litigated (and resolved by several courts in McCain’s favor). Regardless of the merits, it would have made no sense for McCain, based on the same facts, to be considered a natural-born citizen of the U.S. in Texas but not in California.
Accordingly, it is very appropriate that the U.S. Supreme Court has taken a direct appeal of the Colorado Supreme Court’s decision. Contrary to the opinion of some, I believe they will not only rule on the Colorado ballot issue, but will decide the question of Trump’s ballot eligibility for all the states. This situation is very different from in Bush v. Gore (2000), where the U.S. Supreme Court aggressively intervened on a question of Florida election law (how to determine voter intent on an imperfectly completed ballot), by applying a federal constitutional issue (equal protection) on a one-time basis with almost gleeful insincerity. In Anderson, the issue is unquestionably an issue of federal constitutional interpretation, and the need to impose a uniform interpretation on state courts is straightforward.
A Continuation of Politics by Other Means
Given the present composition of the Court, it is unlikely they will uphold the Colorado decision in Anderson, despite its essential soundness. We can never forget, if we were ever tempted to, that the members of the Supreme Court are appointed by politicians for political reasons. They remain, in spite of their protestations, political as well as legal actors. In matters of great political importance, they tend to vote with their tribal affinities. In this case, the political deck is stacked. Six of the nine current Justices are Republican appointees, three of them appointed by Trump himself. And many legal cards are available to them.
But Anderson will not be an easy case for the Justices to overturn, either. They could find the issue to be non-justiciable—that is, a political question beyond their constitutional authority to decide. But in that scenario, they will find it difficult to impose uniformity on the states—and electoral chaos could result. If they overturn the Colorado decision on dodgy technical grounds (for example, by excluding the presidency from the scope of the word “office”), they risk their own credibility, while dismantling an important constitutional guardrail. To wade into the facts of January 6, and try to settle the issue of whether or not Trump engaged in insurrection, are tasks for a trial court, which the Supreme Court is simply unequipped to take on. If they did, they would find themselves in the middle of an even deadlier political minefield—a fate they will strenuously try to avoid.
In the sequel to this article, I will examine the options the Court has to dispose of the Anderson case, most of which would keep Trump on the ballot in all 50 states. I will also consider the possibility, however slim, that the Court will see Sec. 3 of the 14th Amendment for what it is—a necessary tool to protect the Constitution from its known enemies—and apply it accordingly.
