tag:theconversation.com,2011:/ca/topics/14th-amendment-80901/articles14th Amendment – The Conversation2024-03-04T18:49:30Ztag:theconversation.com,2011:article/2247182024-03-04T18:49:30Z2024-03-04T18:49:30ZThe Constitution sets some limits on the people’s choices for president - but the Supreme Court rules it’s unconstitutional for state governments to decide on Trump’s qualifications<figure><img src="https://images.theconversation.com/files/579002/original/file-20240229-24-47x21c.jpg?ixlib=rb-1.1.0&rect=174%2C174%2C2495%2C1526&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A 1935 painting depicts the 1787 meeting that adopted the U.S. Constitution.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:%27The_Adoption_of_the_U.S._Constitution_in_Congress_at_Independence_Hall,_Philadelphia,_Sept._17,_1787%27_(1935),_by_John_H._Froehlich.jpg">John H. Froehlich via Wikimedia Commons</a></span></figcaption></figure><p>When the Supreme Court ruled on March 4, 2024, that former President Donald Trump <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">could appear on state presidential ballots</a> for the 2024 election, it did not address an idea that seemed simple and compelling when Justice Brett Kavanaugh raised it during the Feb. 8, 2024, oral arguments in the case:</p>
<blockquote>
<p>“<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_5he6.pdf">What about the idea that we should think about democracy</a>, think about the right of the people to elect candidates of their choice, of letting the people decide?”</p>
</blockquote>
<p>In essence, he was asking whether it would be better to let the people, rather than a court or a state official, decide whether a controversial candidate should return to the White House.</p>
<p>Kavanaugh had a point. Under the Constitution, the people can be – and are – trusted to make a great many important decisions.</p>
<p>But Kavanaugh also missed a key point that I learned in years of <a href="https://my.wlu.edu/directory/profile?ID=x1345">teaching about the presidency, the Constitution and impeachment</a>. Right from the very beginning of the nation, and persisting until today, there have been rules that limit the ability of the people to choose their leaders.</p>
<h2>The Constitutional Convention of 1787</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=767&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=767&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=767&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=964&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=964&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=964&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gouverneur Morris.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Portrait_of_Gouverneur_Morris_(1752-1816),_1817.jpg">Ezra Ames via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>The drafters of the Constitution already had the discussion Kavanaugh was trying to start during the oral arguments.</p>
<p>In July 1787, the delegates to the Constitutional Convention, where the Constitution was written, were discussing impeachment. Gouverneur Morris – a Pennsylvania delegate who <a href="https://www.neh.gov/article/confessions-gouverneur-morris">wrote the preamble to the Constitution</a>, including its opening phrase, “<a href="https://constitutioncenter.org/the-constitution/preamble">We the People of the United States</a>” – made an argument Kavanaugh’s question would echo 237 years later.</p>
<p>When discussing <a href="https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/">whether it should be possible for Congress to remove the president</a>, Morris said no.</p>
<p>The people could decide for themselves, he said. Making the president subject to impeachment, Morris said, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">will hold him in such dependence</a> that he will be no check on the Legislature, (nor) a firm guardian of the people and of the public interest.” With regular national elections, Morris said, a flawed chief executive could be removed from office by the voters. Morris added, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">In case he should be reelected</a>, that will be sufficient proof of his innocence.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=699&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=699&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=699&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=879&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=879&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=879&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Mason.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:George_Mason.jpg">Dominic W. Boudet after John Hesselius via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>But George Mason, a Virginia delegate and slaveholder who <a href="https://www.smithsonianmag.com/history/george-mason-forgotten-founder-he-conceived-the-bill-of-rights-64408583/">championed the idea for the Bill of Rights</a>, was ready with a response. Pointing out that true and fair elections were key to the new nation’s success, Mason noted that if criminal conduct by some future president involved corruption of the election process, the people might have trouble deciding the culprit’s fate in a subsequent election:</p>
<blockquote>
<p>“<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Shall any man be above Justice?</a> Above all shall that man be above it, who can commit the most extensive injustice? … Shall the man who has practised corruption and by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”</p>
</blockquote>
<p><a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Others chimed in with similar replies</a>: Benjamin Franklin of Pennsylvania; James Madison of Virginia, a future president; Elbridge Gerry of Massachusetts, a future vice president; and Edmund Randolph of Virginia, a future U.S. attorney general and secretary of state.</p>
<p>The records of the Constitutional Convention say this at the conclusion of that section of debate: </p>
<blockquote>
<p>“Mr. Gouverneur Morris’s opinion had been changed by the arguments used in the discussion. … Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust … The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity.” </p>
</blockquote>
<p>The outcome of that discussion resulted in the first of several rules that prevent the American people from choosing just anyone as the president.</p>
<h2>Key restrictions</h2>
<p><a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-6">Section 3 of Article 1 of the Constitution</a> is the most direct result of the debate between Morris and Mason. It says that people, including the president, who are impeached and convicted can be barred from office.</p>
<p><a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">Section 1 of Article 2 of the Constitution</a> imposes more limits. It declares that some people <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">simply can’t be president</a> – those not born U.S. citizens, those under age 35 and those who have lived less than 14 years of their lives in the U.S.</p>
<p>Eight decades later, Congress and the states agreed to add a new restriction: <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a>, ratified in 1868, says those seeking to hold federal and state offices who have previously taken an oath to support the Constitution <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">may not have attemped to subvert or overthrow the Constitution</a>.</p>
<p>And in 1951, the <a href="https://constitution.congress.gov/constitution/amendment-22/">22nd Amendment to the Constitution</a> was ratified, declaring that nobody who had been president for two terms could become president again.</p>
<p>All of these rules stand in the way of simply “letting the people decide,” as Kavanaugh suggested. Strictly speaking, those rules are not democratic. But they are intended to protect democracy itself.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large room with chairs and desks." src="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=233&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=233&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=233&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=293&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=293&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=293&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Senate is one of the less democratic elements of the federal government.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:United_States_Senate_Floor.jpg">U.S. Senate via Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Democracy isn’t always democratic</h2>
<p>There are plenty of provisions in the Constitution that run counter to simple democracy. </p>
<p>The Senate and the Electoral College give <a href="https://theconversation.com/why-does-the-electoral-college-exist-and-how-does-it-work-5-essential-reads-149502">extra power to states with relatively small populations</a>.</p>
<p>No Congress – even one whose members were each elected by huge majorities – can pass a law abridging freedom of religion or freedom of speech. If a Congress were to pass such a law, the Supreme Court, which has been called <a href="https://www.thirteen.org/wnet/supremecourt/democracy/history.html">the nation’s least democratic branch</a>, could declare it unconstitutional.</p>
<p>Democratic majorities in America are both empowered and constrained by the Constitution. The founders wanted the will of the people to be heard and respected but never given absolute power. Absolute power of any kind was to be checked by a complicated set of prohibitions and procedures.</p>
<p>Kavanaugh was wise to call attention to the fact that in a democracy, the preferences of the people get a high level of deference. Voters certainly can <a href="https://www.pewresearch.org/short-reads/2023/07/21/little-change-in-americans-views-of-trump-over-the-past-year/">judge the conduct and character of Donald Trump</a> – and many have done so, both favorably and unfavorably.</p>
<p>But George Mason was also right. When politicians corrupt the electoral process, or try to do so, it makes little sense to use elections as the mechanism to fix the problem. </p>
<p>The constitutional provisions for impeachment and the 14th Amendment make clear that people who are found guilty of serious wrongdoing while in office, or violate an oath to support the Constitution, are ineligible to hold high office thereafter. In short, the people can’t choose a Senate-convicted official or an oath-breaking insurrectionist, even if they want to. </p>
<p>America’s Constitution has long acknowledged that the preservation of the republic may, in some cases, require the disqualification of candidates and officeholders who commit crimes while in positions of power or participate in insurrection against the very government they have sworn to serve. </p>
<p>The Supreme Court has sidestepped the question of whether Trump’s actions disqualify him from office and declared instead that Congress must make that determination, under the various constitutional restrictions that continue to exist about who is allowed to serve as president. The practical effect of its decision will be to let the people decide this vital question in the coming presidential election.</p><img src="https://counter.theconversation.com/content/224718/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert A. Strong does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Right from the very beginning of the nation, there have been rules that limit the ability of the people to choose their leaders.Robert A. Strong, Emeritus Professor of Politics, Washington and Lee University; Senior Fellow, Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2234262024-03-04T15:38:32Z2024-03-04T15:38:32ZSupreme Court says only Congress can bar a candidate, like Trump, from the presidency for insurrection − 3 essential reads<figure><img src="https://images.theconversation.com/files/579609/original/file-20240304-20-77h9ij.jpg?ixlib=rb-1.1.0&rect=49%2C49%2C8130%2C5408&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Journalists set up in front of the U.S. Supreme Court building on Feb. 8, 2024.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-press-stake-out-outside-the-supreme-court-in-news-photo/1991622087">Aaron Schwartz/Xinhua via Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court has ruled, in a unanimous decision, that the <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">state of Colorado cannot bar former President Donald Trump</a> from appearing on Colorado’s presidential ballot under the provisions of <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a> to the U.S. Constitution.</p>
<p>The text of <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment states</a>, in full:</p>
<blockquote>
<p>“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.”</p>
</blockquote>
<p>The ruling said states may decide who is eligible to hold state offices, but <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">only Congress may decide</a> who is eligible to hold federal offices.</p>
<p>Writing for The Conversation U.S. as far back as 2021, several scholars have explained aspects of this part of the Constitution, how it was intended, and the legal and political considerations surrounding its function. They give context to the court’s ruling and what it means for the country now.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pelosi signs a document with four people standing behind her, and American flags" src="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Then-Speaker of the House Nancy Pelosi signs an article of impeachment against then-President Donald Trump on Jan. 13, 2021.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/speaker-of-the-house-nancy-pelosi-signs-an-article-of-impeachment-picture-id1230572656?k=6&m=1230572656&s=612x612&w=0&h=V-BDhqZJ7pEUiqqfWq25M5pz4SND4vIJiq3wpFu6O7Q=">Stefani Reynolds/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. A relatively recent development</h2>
<p>In early 2021, <a href="https://mckinneylaw.iu.edu/faculty-staff/profile-WCMS.cfm?Id=40">Gerard Magliocca</a>, a law professor at Indiana University, pointed out that up until that time, “<a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">Section 3 of the 14th Amendment</a> was an obscure part of the U.S. Constitution.”</p>
<p>But this provision had an important purpose, he wrote:</p>
<blockquote>
<p>“It prohibits current or former military officers, along with many current and former federal and state public officials, <a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">from serving in a variety of government offices</a> if they ‘shall have engaged in insurrection or rebellion’ against the United States Constitution.”</p>
</blockquote>
<p>The Supreme Court’s ruling did not decide whether Trump had or had not engaged in insurrection.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">Congress could use an arcane section of the 14th Amendment to hold Trump accountable for Capitol attack</a>
</strong>
</em>
</p>
<hr>
<h2>2. Justices focused on potential for national disarray</h2>
<p>During oral arguments on Feb. 8, 2024, several members of the Supreme Court focused on the fact that this case was about a Colorado decision to bar Trump from the ballot, which suggested that other states might come to their own conclusions if the court didn’t deliver a clear message that would apply nationwide.</p>
<p>As Notre Dame election law scholar <a href="https://law.nd.edu/directory/derek-muller/">Derek Muller</a> observed: </p>
<blockquote>
<p>“<a href="https://theconversation.com/supreme-court-skeptical-that-colorado-or-any-state-should-decide-for-whole-nation-whether-trump-is-eligible-for-presidency-223063">States are the ones who have the primary responsibility</a> of running presidential elections. And Colorado was leaning very heavily into this authority they have over which candidates to list on the ballot and how that can vary from state to state. The pushback from the Supreme Court in this case was to say, in essence, you’re not dealing with local or state interests, you’re not dealing with these state-specific procedures for how you list candidates on the ballot. You are interpreting a provision of the U.S. Constitution, and then you are applying it in your own state in a way that could affect what happens in other states.”</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/supreme-court-skeptical-that-colorado-or-any-state-should-decide-for-whole-nation-whether-trump-is-eligible-for-presidency-223063">Supreme Court skeptical that Colorado − or any state − should decide for whole nation whether Trump is eligible for presidency</a>
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<a href="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=1000&fit=clip"><img alt="A police officer standing behind a barricade and in front of a large, white columned building." src="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Police place a fence at the U.S. Supreme Court on Feb. 8, 2024, before justices heard arguments over whether Donald Trump is ineligible for the 2024 ballot.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/05e2c7bc3615410b8088714a425193c9/photo?Query=trump%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5319&currentItemNo=15">AP Photo/Jose Luis Magana</a></span>
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<h2>3. The importance of consensus</h2>
<p>The court appears to have taken pains to get to a unanimous decision. Muller anticipated such a move. He said it was likely because of the potential effect on elections:</p>
<blockquote>
<p>“<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">This is a binary choice</a> that either empowers the Republican candidate or prevents voters from choosing him. So when you have a choice in such stark, political and partisan terms, whatever the Supreme Court is doing is often going to be viewed through that lens by many voters. … (T)here will be as much effort as possible internally on the court to reach a consensus view to avoid that appearance of partisanship on the court, that appearance of division on the court. If there’s consensus, it’s harder for the public to … point the finger at one side or another.”</p>
</blockquote>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">US Supreme Court decision on Trump-Colorado ballot case 'monumental' for democracy itself, not just 2024 presidential election</a>
</strong>
</em>
</p>
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<p><em>This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/223426/count.gif" alt="The Conversation" width="1" height="1" />
Experts explain the context behind the Supreme Court’s ruling on Donald Trump’s eligibility to appear on presidential ballots.Jeff Inglis, Politics + Society Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2230632024-02-08T21:38:05Z2024-02-08T21:38:05ZSupreme Court skeptical that Colorado − or any state − should decide for whole nation whether Trump is eligible for presidency<figure><img src="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Police place a fence at the U.S. Supreme Court on Feb. 8, 2024, before justices heard arguments over whether Donald Trump is ineligible for the 2024 ballot. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/05e2c7bc3615410b8088714a425193c9/photo?Query=trump%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5319&currentItemNo=15">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>Both liberal and conservative justices weighed in during oral arguments before the U.S. Supreme Court on Feb. 8, 2024, asking questions concerning whether a constitutional provision, <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a>, <a href="https://www.nytimes.com/live/2024/02/08/us/trump-supreme-court-colorado-ballot">gave states too much power</a> to affect a national election.</em> </p>
<p><em>Colorado’s highest court relied on the provision in a <a href="https://www.npr.org/2023/12/20/1220583273/trump-colorado-supreme-court-ruling">December 2023 ruling that the state could bar</a> former President Donald Trump from the state’s primary ballot because they determined he committed insurrection.</em></p>
<p><em>“Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?” asked liberal Justice Elena Kagan on Feb. 8.</em></p>
<p><em>The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame <a href="https://law.nd.edu/directory/derek-muller/">election law scholar Derek Muller</a> after the oral arguments.</em> </p>
<p><em>Muller had submitted <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298021/20240118122740839_23-719%20Amicus%20Brief.pdf">an amicus brief</a> to the court “in support of neither party” in the case, using the opportunity to describe some concerns for the court’s consideration about whether and how states go about the business of judging qualifications of candidates before putting their names on the ballot.</em> </p>
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<a href="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two voting booths, with people in each one of them." src="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Will Donald Trump be on the ballot for president in Colorado?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/voters-voting-in-polling-place-royalty-free-image/138711411?phrase=voting+booth+united+states&adppopup=true">Hill Street Studios/Getty Images</a></span>
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<p><strong>What are your first impressions of the oral arguments?</strong></p>
<p>The Supreme Court was very skeptical that, as an institution, it should be the one responsible for deciding this deeply contested question, and it seemed skeptical that the state of Colorado could do this on its own without some congressional guidance or authorization.</p>
<p>They recognized this as a contested political issue. And I think the concern that one state could effectively alter a national presidential election – without any sort of guidance from Congress or explanation at the federal level about how to go about doing that – was problematic.</p>
<p><strong>The justices did not appear to be divided and partisan in their discussion of the case.</strong></p>
<p>The notion that different states could have different standards for disqualifying presidential candidates, and that they would all come up to the Supreme Court to sort it out, was disturbing to them across the political spectrum. On the whole, they seemed inclined to reverse the Colorado Supreme Court.</p>
<p><strong>Justice Brett Kavanaugh mentioned his concerns about states having such power over a national office. The Colorado solicitor general referred to the “messiness of federalism.” What does this mean?</strong> </p>
<p>States are the ones who have the primary responsibility of <a href="https://constitution.congress.gov/browse/article-2/section-1/">running presidential elections</a>. And Colorado was leaning very heavily into this authority they have over which candidates to list on the ballot and how that can vary from state to state. The pushback from the Supreme Court in this case was to say, in essence, you’re not dealing with local or state interests, you’re not dealing with these state-specific procedures for how you list candidates on the ballot. You are interpreting a provision of the U.S. Constitution, and then you are applying it in your own state in a way that could affect what happens in other states. </p>
<p>The court did lean much more heavily into the notion that when you’re dealing with a national office, like the office of the presidency, and dealing with a nationwide issue, like Section 3 of the 14th Amendment, it should not be left to each state’s devices to decide how to apply and administer that issue to that office. </p>
<figure class="align-center ">
<img alt="A man on at a lectern, flanked by American flags, talking to a crowd of people, many wearing red hats." src="https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Republican presidential candidate and former U.S. President Donald Trump speaks during a campaign event in Las Vegas on Jan. 27, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-presidential-candidate-and-former-u-s-president-news-photo/1966049773?adppopup=true">Photo by David Becker/Getty Images</a></span>
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<p><strong>So you’re saying this actually isn’t a problem of federalism, it’s a problem created by a lack of clear understanding of this 14th Amendment provision?</strong></p>
<p>Federalism is a way of thinking about the proper allocation of authority between the federal government and state governments. Federalism is not simply the idea that states get to do what they want.</p>
<p>Sometimes they can. But in other places the federal government has the final say, or the federal government is the one with the authority to make these determinations. And when it came to Section 3 of the 14th Amendment, when you have these messy, contested disputes, should this happen on a state-by-state basis? </p>
<p>The court seemed inclined to think that this is something better left to Congress, rather than states unilaterally interpreting Section 3 on their own. </p>
<p><strong>So does that mean the court would like Congress to make things more clear?</strong> </p>
<p>Absolutely. Is it a dodge to say Congress needs to be responsible for this area? Yes. And you can look at Congress and say, have they really legislated in this area? Are they realistically going to legislate in this area? The answer is probably no. Congressional inaction means that these provisions are not going to be enforced, at least as they apply to the events of Jan. 6, 2021, for federal candidates. </p>
<p><strong>How would a court decision affect states other than Colorado?</strong> </p>
<p>If the court issues a decision in the way it seems that it’s going to decide this case, it would prevent any states – at least in presidential elections – from keeping candidates off the primary or general election ballots under Section 3 of the 14th Amendment without some kind of federal guidance to get there. </p>
<p>That means there won’t be similar cases in other states, and the ones that are pending will be resolved in Trump’s favor. So I think this will be left to the political process. Trump will appear on the ballot, and the candidacies will proceed as if none of this had happened. </p>
<p><strong>But does that then just kick a decision down the road, and Congress would have to decide after the election whether the president-elect – if Trump wins – is qualified to serve, a problem that the Colorado plaintiff’s lawyer said “could come back with a vengeance”?</strong> </p>
<p>Congress has the power to count electoral votes. In the past, it has rejected electoral votes, including in 1873 when a presidential candidate died. The worry here is that perhaps Congress would refuse to count electoral votes for a candidate who was an insurrectionist. And if that happens on Jan. 6, 2025, that puts the nation in a precarious place. Or if Trump takes office, there are likely to be many lawsuits to challenge his official actions by others who are saying he’s an insurrectionist who cannot hold office or act as president. </p>
<p>So a decision in the direction the court appears to be going in has the virtue of allowing the political process to play out. But it does leave open questions later about counting electoral votes or even serving in office, and open questions about mechanisms to challenge those actions and what they look like.</p><img src="https://counter.theconversation.com/content/223063/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I filed an amicus curiae brief in support of neither party in this case.</span></em></p>Partisan differences at the Supreme Court seemed to be set aside as conservative and liberal justices alike asserted concerns about giving states too much power over national elections.Derek T. Muller, Professor of Law, University of Notre DameLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2230582024-02-08T20:48:00Z2024-02-08T20:48:00Z‘Look for a reversal in a fairly short period of time’ − former federal judge expects Supreme Court will keep Trump on Colorado ballot<figure><img src="https://images.theconversation.com/files/574481/original/file-20240208-22-to0w8b.jpg?ixlib=rb-1.1.0&rect=17%2C8%2C5714%2C3806&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Even a day before the oral arguments, a line had formed outside the Supreme Court to sit in on the court's session.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/2e5e06595e7441d3a9bb5c465301f565/photo">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>To get the rare perspective of a former federal judge on the <a href="https://www.supremecourt.gov/oral_arguments/argument_transcript/2023">oral arguments at the Supreme Court</a>, The Conversation U.S. spoke with John E. Jones III. He is the president of Dickinson College and a <a href="https://www.dickinson.edu/homepage/1494/dickinson_college_president">retired federal judge</a> appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002. The case is about former President Donald Trump’s claim that he should be allowed on the presidential ballot in Colorado – and other states – because the language of the 14th Amendment does not apply to him.</em></p>
<p><em>During his time on the bench, Jones issued landmark decisions in high-profile cases, including a 2005 ruling that <a href="https://web.archive.org/web/20051221144316/http:/www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf">teaching intelligent design in science classes is unconstitutional</a>. Jones also issued a 2014 ruling <a href="https://www.scribd.com/document/225260457/1-13-cv-01861-Pennsylvania-Decision">legalizing same-sex marriage in Pennsylvania</a>, which preceded the U.S. Supreme Court decision reaching the same conclusion for the nation as a whole one year later.</em></p>
<p><strong>What’s your overall view of how things went this morning?</strong></p>
<p>I think it’s clear they’re going to reverse the <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf">Colorado Supreme Court</a>. There’s no question in my mind. I would look for a reversal in a fairly short period of time. The surprise may be that some of the more liberal justices could join the majority. I would look for an overwhelming majority to reverse. I think you could potentially see some concurring opinions, although I think Chief Justice John Roberts will try to wrap it into one opinion.</p>
<p>There are a lot of parts to the arguments. You could have a justice who concurs in the result but for different reasons. But I think they will recognize that the more uniform they are on this, the better they’ll be. </p>
<p>There could be dissents, but in the end I just didn’t think that they were buying Colorado lawyer Jason Murray’s arguments that each state has the power to judge for itself whether Trump’s conduct before, on and after Jan. 6, 2021, constituted insurrection, and that if it did, they can independently evaluate whether Trump is <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">ineligible to hold office</a> because of the 14th Amendment. I think there is the possibility of a unanimous opinion. I’m not going to be that bold, but Murray had a tough day.</p>
<p>Murray clerked for Justice Neil Gorsuch when he was on the 10th Circuit Court of Appeals and also clerked for Justice Elena Kagan on the Supreme Court. Former clerks are part of judges’ extended family. But sometimes judges and justices will bend over backwards to really nail their clerks, just to show that they’re not getting any kind of special treatment. I thought they were pretty rough on Murray today. <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf#page=80">Gorsuch really pounded him</a> – and he and Gorsuch probably have a very abiding relationship.</p>
<p><strong>What can we learn about how the justices are thinking about the case?</strong></p>
<p>There’s an old adage that you shouldn’t necessarily predict a result based on questions at oral argument. But it depends. Sometimes, judges and justices are intentionally provocative with their questions – they don’t necessarily signal their mindset or where they’re going. Other times they’re more transparent. </p>
<p>I thought today <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf">the questions</a> were really indicative of the perspectives of the questioners.</p>
<p>There’s a real problem to the position of the voters in Colorado seeking to get Trump off the ballot: If the decision is affirmed, you have the potential to have 50 different states all conducting some type of proceeding for which there is no template whatsoever and coming up with disparate results. </p>
<p>That creates different records in different places, which comes down to a due process argument – about the due process afforded to Trump and what mechanism he may have when his ability to get on the ballot is challenged.</p>
<p>The justices are afraid of future cases, where somebody tries to bump somebody off the ballot – even for political reasons or for no reason at all. There’s no standard for adjudicating this. That’s a problem. The prospect of retaliatory actions was talked about, and in this partisan political climate you could see somebody try to knock Joe Biden off the ballot. Then you’d have a court struggling without a standard, trying to figure out what, if anything, Biden did that disqualifies him.</p>
<p>On the side of Colorado, the argument is intertwining Section 3 of the 14th Amendment and the <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-2">electors clause of the U.S. Constitution</a>, which says that states have the ability to set certain rules and regulations for the conduct of elections underneath Congress’ power to regulate national elections.</p>
<p>They’re saying that the states have the power to decide whether to disqualify someone under their powers in the electors clause. I think that’s a very tough argument to make because of the lack of uniformity. The justices appear concerned about the sheer chaos that would stem from 50 different states adjudicating this question. </p>
<p><strong>The Colorado solicitor general, Shannon Stevenson, said 50 states operating separately is a positive feature of the Constitution’s structure.</strong></p>
<p>During oral arguments they talked about the 1994 case <a href="https://www.oyez.org/cases/1994/93-1456">U.S. Term Limits v. Thornton</a>. It was a case that involved 20-plus states that had enacted term limits for members of Congress. Of course, it got challenged up to the Supreme Court, and in the Constitution there’s no amendment that imposes term limits. What that ruling said was that states can’t add conditions for holding public office that are not within the text of the Constitution. It’s a very technical argument but not a bad argument. </p>
<p><strong>What are your observations about the 14th Amendment as it applies to this case?</strong></p>
<p>This was a poorly written section. It was a reactionary section that was essentially enacted, as stated by the justices, as a compromise that made no one particularly happy. It’s vague.</p>
<p>It doesn’t enumerate the president in the list of people it covers – you can see that. So does it cover the president when it talks about people who are an “<a href="https://constitution.congress.gov/constitution/amendment-14/">officer of the United States</a>” or who holds an “office … under the United States”? Then we play this semantical game. I don’t find that particularly availing, though I think you could fit the president into the rubric.</p>
<p>I think it is a very easy argument to make that Trump was an insurrectionist. But there are no standards. Where’s the due process? </p>
<p>There’s an element of trying to torture a very poorly written section down into something that fits the situation in 2024. That creates enormous headaches for lawyers and judges and justices. It’s just not clear what the amendment means. And when there’s unclarity like that, that makes for a tough go for a justice.</p>
<p>The way Kagan, for example, may write an opinion is to really lean on the fact that it was an insurrection, but it’s a bad section of the Constitution here. She might say our eyes don’t deceive and we know what we saw on Jan. 6, 2021, but there has to be a process to this.</p><img src="https://counter.theconversation.com/content/223058/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A retired federal judge examines the oral arguments the Supreme Court heard on a case in which Colorado has blocked former President Donald Trump from the ballot.John E. Jones III, President, Dickinson CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2223582024-02-06T18:57:10Z2024-02-06T18:57:10ZMore than 78 ‘friends’ of the Supreme Court offer advice on the 14th Amendment and Trump’s eligibility<figure><img src="https://images.theconversation.com/files/573765/original/file-20240206-32-y14p79.jpeg?ixlib=rb-1.1.0&rect=13%2C0%2C4336%2C2927&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">US President Donald Trump speaks to supporters from the Ellipse near the White House on Jan. 6, 2021, in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-to-supporters-from-the-news-photo/1230450752?adppopup=true">Brendan Smialowski/AFP via Getty Images</a></span></figcaption></figure><p>Members of the U.S. Capitol Police targeted with “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299404/20240131142752665_Trump%20v.%20Anderson%20--%20Amicus%20Brief.pdf">brutal violence</a>” on Jan. 6, 2021, <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298895/20240126151819211_23-719%20Brief.pdf">25 historians of the U.S. Civil War and Reconstruction</a>, the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299385/20240131142241099_trump%20amicus%20brief..1.30.24.Final.pdf">San Francisco Taxpayers Association</a> and <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">dozens of other parties</a> have weighed in at the U.S. Supreme Court with their opinions about the case that has the potential to disqualify Donald Trump from the 2024 presidential election.</p>
<p>The justices will hear oral arguments in that case, <a href="https://www.oyez.org/cases/2023/23-719">Trump v. Anderson</a>, on Feb. 8. 2024. The plaintiffs, a group of Colorado voters, claim that under <a href="https://theconversation.com/colorado-voters-seeking-to-disqualify-trump-from-the-ballot-tell-supreme-court-jan-6-will-forever-stain-us-history-221714">Section 3 of the 14th Amendment</a> to the U.S. Constitution, Trump is not constitutionally qualified to run for president because he “engaged in insurrection or rebellion” against the U.S. Constitution. When the Colorado Supreme Court ruled that Trump could not appear on that state’s ballot, Trump appealed the decision to the U.S. Supreme Court. </p>
<p>While the Supreme Court will ultimately determine Trump’s fate, the numerous parties who have chimed in aim to add context and additional arguments for the justices to consider. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of nine people in black robes, seated in two rows." src="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Supreme Court’s nine justices, who will determine whether the Constitution’s 14th Amendment bars presidential candidate Donald Trump from the ballot.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243791674?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>78 amicus briefs</h2>
<p>As with many cases before appellate courts, and especially those before the Supreme Court, outside interested parties can file what are called an amicus brief. The filers are referred to as <a href="https://www.law.cornell.edu/wex/amicus">“amicus curiae,” Latin for a “friend of the court</a>.” They are not a party to the case but rather someone or a group who volunteer advice in a case before the court. </p>
<p>The purpose of amicus briefs varies. They can be used to share specialized knowledge with the courts. In their Trump v. Anderson amicus brief, constitutional law scholars <a href="https://law.yale.edu/akhil-reed-amar">Akhil Reed Amar of Yale Law School</a> and <a href="https://law.ucdavis.edu/people/vikram-amar">Vikram David Amar of University of California, Davis, School of Law</a> write about <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/295994/20240118094034746_Trump%20v%20Anderson.pdf">the history and significance</a> of the first insurrection, which occurred in the 1860s. They describe this as an effort to “prevent the lawful inauguration of duly elected Abraham Lincoln.” </p>
<p>Others file amicus briefs to advance or further an argument. Some may discuss the potential effects of possible decisions. All share a common thread: Amicus briefs are filed to help the court shape the ruling in the case.</p>
<p>In Trump v. Anderson, the amicus filers who support Trump filed 34 briefs. Filers who support Anderson, the plaintiff whose name is on the case, filed 30 briefs. In addition, 14 briefs were filed in support of neither party. </p>
<p>The total of 78 amicus briefs filed is lower than other recent and controversial cases before the Supreme Court. For instance, in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>, the case that ultimately overturned the constitutional guarantee of a right to abortion, there were approximately 140 amicus briefs filed. In a recent affirmative action case, <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">Students for Fair Admissions Inc. v. Harvard</a>, which concluded that universities cannot use race as a consideration in admissions decisions, amici filed approximately 100 briefs. </p>
<p>While the total number of briefs filed in this case is notably lower, it is important to note that the Supreme Court expedited Trump v. Anderson, almost certainly because the presidential campaign is well underway. While normally there is a period of months to file amicus briefs in cases, the court’s expedited timeline directed amicus filers that they had less than four weeks to file their briefs. </p>
<h2>Constitutional or unconstitutional?</h2>
<p>In his amicus brief, U.S. Sen. Ted Cruz, a Republican from Texas and former presidential candidate himself, argues that the Colorado Supreme Court’s decision to remove Trump from its ballots was an <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">unconstitutional encroachment on Congress’ powers</a> </p>
<p><a href="https://www.c-span.org/person/?40188/MichaelLuttig">Former U.S. Appeals Judge J. Michael Luttig</a> was part of a group of amicus filers made up of “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299107/20240129171610494_23-719_Amici%20Brief.pdf">former officials</a> who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.” Their brief argues that the Supreme Court is well within its constitutional authority to determine the constitutional qualifications of the presidency, and that “Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly elected President.” </p>
<p>Constitutional law scholars such as Berkeley’s <a href="https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/#tab_profile">Erwin Chemerinsky</a> and Yale’s <a href="https://law.yale.edu/bruce-ackerman">Bruce Ackerman</a> argue in their filing that <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299220/20240130143600068_23-719%20Amici%20BOM%20Floyd%20Abrams%20et%20al%20PDFA.pdf">Trump’s rhetoric is not protected by the First Amendment</a>. Thus, they write, the First Amendment should not affect how the court interprets and applies Section 3. </p>
<p>And the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/296994/20240118104059498_No.%2023-719_Brief.pdf">National Association for the Advancement of Colored People argues that the court</a> should give consideration to the 14th Amendment’s commitment to equal protection and multiracial democracy because the drafters of the amendment had a “practical concern about how insurrectionists would respect the rights of those whom they did not believe were entitled to rights.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd of angry-looking people in front of the U.S. Capitol, a white-domed building." src="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pro-Trump protesters gather in front of the U.S. Capitol on Jan., 6, 2021, in Washington, D.C. A pro-Trump mob stormed the Capitol, breaking windows and clashing with police officers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-trump-protesters-gather-in-front-of-the-u-s-capitol-news-photo/1230457865?adppopup=true">Jon Cherry/Getty Images</a></span>
</figcaption>
</figure>
<h2>Unexpected friends</h2>
<p>Although legal scholars and politicians frequently file amicus briefs in cases, this case also generated significant interest from nontraditional amici. </p>
<p>An unspecified number of Capitol Police officers who fought against the rioters on Jan. 6, 2021, to protect senators and representatives argue that the First Amendment should not apply because Trump’s speech was <a href="http://www.supremecourt.gov/DocketPDF/23/23-719/299404/20240131142752665_Trump%20v.%20Anderson%20--%20Amicus%20Brief.pdf">“integral to unlawful activity</a>.”</p>
<p>The San Francisco Taxpayers Association’s brief claims that Trump is disqualified because, in addition to engaging in an insurrection, Trump also engaged in a “rebellion against the Constitution, by knowingly <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299385/20240131142241099_trump%20amicus%20brief..1.30.24.Final.pdf">disregarding the presidential oath of office</a>.” This rebellion, as they note, is a separate basis for disqualification under Section 3 of the 14th Amendment. </p>
<p>And international scholars who study democracies, political violence and the rule of law write that Trump’s actions following the November 2020 election “are alarmingly similar to activities that have <a href="http://www.supremecourt.gov/DocketPDF/23/23-719/299402/20240131142658027_2024.01.31%20Final%20Brief%20of%20Democracy%20Experts.pdf">destroyed democracies in other countries</a>.” </p>
<p>Even voters who say they “have a constitutional interest in a ballot” filed amicus briefs in this case. Voters in New Hampshire argue that all Americans have a constitutional right to “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299369/20240131133403242_Brief%2001%2031%2024.pdf">a ballot free of such an insurrectionist</a>” as Trump.</p>
<h2>‘Great peril’ for the nation</h2>
<p>Most of the amicus briefs in this case, however, reiterate the litigants’ core arguments. Trump’s supporters argue that Section 3 <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">does not apply to the office of the president</a>. Even if it did, they assert, Trump’s speech should be protected by the First Amendment. Moreover, they argue that Section 3 requires an act of Congress to enable its enforcement. </p>
<p>Anderson’s supporters who seek Trump’s disqualification argue that Section 3 does apply to the president. They also argue that <a href="https://theconversation.com/colorado-voters-seeking-to-disqualify-trump-from-the-ballot-tell-supreme-court-jan-6-will-forever-stain-us-history-221714">Trump engaged in an insurrection</a> as evidenced by the violence on Jan. 6, 2021. Further, they argue that Section 3 automatically applies unless Congress acts by removing the disqualification disability.</p>
<p>And both sides argue that the Supreme Court must decide the issue now because any delay will “<a href="http://www.supremecourt.gov/DocketPDF/23/23-719/297014/20240118112848137_23-719.Amicus.Foley.Ginsberg.Hasen.pdf">place the Nation in great peril”</a>. </p>
<p>Whether the Supreme Court relies on any of the amicus briefs is up to the justices’ discretion. But without any doubt, this case is monumental – likely more consequential than <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep531/usrep531098/usrep531098.pdf">Bush v. Gore</a>, which decided the outcome of the 2000 presidential election in George W. Bush’s favor. While the court’s self-imposed deadline to release its decision is the end of June, it is reasonable to expect a decision in this case sooner rather than later.</p><img src="https://counter.theconversation.com/content/222358/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>34 groups filed briefs with the Supreme Court in favor of keeping Donald Trump on the ballot, 30 favored disqualifying him as an insurrectionist, and 14 simply added legal information to the record.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2223272024-02-01T13:31:50Z2024-02-01T13:31:50ZSupreme Court word-count limits for lawyers, explained in 1,026 words<figure><img src="https://images.theconversation.com/files/572440/original/file-20240131-23-oym8mi.jpeg?ixlib=rb-1.1.0&rect=31%2C10%2C7030%2C4976&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lawyers write too much. That's why the Supreme Court and other U.S. courts impose word limits on them.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/busy-businessman-working-on-computer-with-royalty-free-illustration/1177158970?phrase=pile+of+paper&adppopup=true">siraanamwong/ iStock / Getty Images Plus</a></span></figcaption></figure><p>The dispute over former President Donald Trump’s eligibility to appear on the Colorado ballot will come to a head on Feb. 8, 2024, when the U.S. Supreme Court holds oral arguments in the case. <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">Dozens of individuals and organizations have weighed in</a> by filing what are called “amicus curiae” – friend of the court – briefs. <a href="https://www.law.cornell.edu/wex/amicus_curiae">These briefs</a> can give judges different perspectives on a case than the litigants’ briefs do. </p>
<p>When each amicus brief – or any other kind of brief – is filed, the court requires that a separate document be filed along with it: a “certificate of word count,” in which the filer promises that the brief does not exceed the word count <a href="https://www.law.cornell.edu/rules/supct/rule_33">allowed by Supreme Court rule</a>. Depending on the circumstances, the Supreme Court’s limits range from 6,000 to 13,000 words, or about <a href="https://www.law.cornell.edu/rules/frap/rule_32">20 to 50 pages</a>.</p>
<p>Why is compliance with this word-count requirement so important to the Supreme Court and to many other U.S. courts that it must be attested to in a separate, signed certificate?</p>
<p>Maybe because many lawyers, when given the chance, will write as much as they can. </p>
<p>They forget, as Justice Clarence Thomas put it <a href="https://youtu.be/FpR3wfHTMR0?si=ZA4RmJcoI7noYq3y">in a 2007 interview with author Bryan Garner</a>, that judges are “really busy,” and what that particular lawyer wrote is “not the most important thing” their judge will read that day.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/FpR3wfHTMR0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Justice Clarence Thomas gives writing advice to lawyers about what a judge wants to read.</span></figcaption>
</figure>
<p>As a law professor who, for almost two decades, <a href="https://lawweb.colorado.edu/profiles/profile.jsp?id=274">has studied what judges find persuasive</a>, I know that Thomas’ view is widely shared. And I also know that lawyers spend a lot of energy – and words – trying to evade limits. These efforts have even extended to arguing in court, with citations to renowned typographical experts, about the precise definition and measure of what constitutes “double-spaced.”</p>
<h2>‘Too long, too long, too long’</h2>
<p>From the judge’s perspective, the purpose of word limits is to invite lawyers to make their arguments leaner and more focused in order to conserve judges’ attention. </p>
<p>Pennsylvania-based Chief Judge Ruggero J. Aldisert <a href="https://law.olemiss.edu/assets/Aldisert75-3.pdf">summarized the views of dozens of other chief judges</a> by noting that the first problem with briefs is that they’re “too long, too long, too long.” </p>
<p>And in 2012, when a lawyer in a Florida case asked Judge Steven Merryday for permission to submit a brief that would have exceeded his court’s limits, the judge not only rejected the request but <a href="https://www.courtlistener.com/docket/8274281/24/belli-v-hedden-enterprises-inc/">line-edited the first paragraph</a> of the proposed filing − paring it down from 176 words to just 46.</p>
<p>But some attorneys instead read word-limit certifications as an effort to constrain the perceived persuasive power of extra-long briefs rather than signaling the outer edge of what judges will read. The number becomes a goal rather than a maximum. </p>
<p>And so, when one side appears to write past that limit, the other side calls foul and files an objection in court.</p>
<p>In these objections, a lawyer usually asks the court two questions: First, to determine that the filing whose length was questioned really did exceed the word or page limit. Despite modern technology and electronic filing, some courts still impose page limits. Second, the court is asked to do something about that violation, such as require the party to refile a shorter version or, sometimes, to instead allow the complaining party extra space as well. Some even ask the court to sanction the first party for their misconduct. </p>
<p>Of course, the other lawyer writes back with arguments and requests of their own.</p>
<p>So, our already busy judge now has even more to read and more decisions to make. California-based Judge Jesus Bernal was so put off by the “sheer audacity” of an attorney complaining about “minor formatting issues” in the other party’s brief that he <a href="https://abovethelaw.com/uploads/2023/11/Sanctions.pdf">sanctioned the complaining attorney</a>, requiring that attorney to pay the other side’s fees and costs.</p>
<h2>Arguing over spaces</h2>
<p>One subset of these conflicts are fights over the meaning of “double-spaced.” The most recent example, from November 2023, arose in Tennessee before U.S. District Judge Sheryl Lipman.</p>
<p>One side noticed that the other side had filed a brief that seemed to have more lines of text per page than their own briefs contained. It turned out that those lawyers had spaced their lines of text 24 points apart – <a href="https://practicaltypography.com/point-size.html">a “point” is 1/72 of an inch</a> – rather than closer to 28 points, <a href="https://abovethelaw.com/uploads/2023/11/Motion.pdf">which the complaining lawyers asserted</a> was the measure in “all widely-used word processing programs” using the “double-space” setting. </p>
<p>Thus, to “ensure a level playing field,” they asked Judge Lipman to require the other side to put more space between lines of text in future filings.</p>
<p>The 24-point lawyers responded, marshaling <a href="https://abovethelaw.com/uploads/2023/11/response.pdf">58 pages of argument and exhibits</a> in support of their spacing. </p>
<p>They began by explaining that, in typography, double-spacing “has an objective meaning,” which is “double the size of the typeface font.” To prove that their writing met this standard, they measured it with a <a href="https://www.schaedlerprecision.com/products.htm">specialized typographic ruler</a> called a pica pole.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A text excerpt with a measuring pole laid on it." src="https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An exhibit in a legal filing using a pica pole to make a point about proper double-spacing.</span>
<span class="attribution"><a class="source" href="https://abovethelaw.com/uploads/2023/11/response.pdf">Jessica Jones, et al., Plaintiffs, v. Varsity Brands, LLC, et al</a></span>
</figcaption>
</figure>
<p>As for the propriety of using that definition in legal briefs, they cited the <a href="https://typographyforlawyers.com/foreword.html">leading authority in the field</a>: Matthew Butterick, whose book “Typography for Lawyers” <a href="https://typographyforlawyers.com/line-spacing.html">has a whole section on line spacing</a>. </p>
<p>Not yet content, they went further, attaching – after their six exhibits – a written declaration from Butterick himself. In it, he agreed that the complained-about brief was “definitely double-spaced,” while conceding that line spacing is “often a source of confusion for lawyers.”</p>
<p>The source of this confusion? Software defaults. </p>
<p>Counterintuitively, when typing in 12-point font in a program such as Microsoft Word, choosing the “double-spaced” option doesn’t set the lines 24 points apart. Instead, the program chooses to space lines a bit more than that, in an amount that varies both by which version of Word one is using and by which font.</p>
<p>Thus, the typographic definition is not only more accurate but also more reliable. And it doesn’t require a litigant to license a particular word processing program to ensure compliance.</p>
<p><a href="https://www.abajournal.com/files/LipmanDouble-spaceopinion.pdf">Judge Lipman basically agreed</a> and rejected the complaining attorneys’ invitation to forbid 24-point spacing. </p>
<p>But she reminded the lawyers that “the last thing any party needs is more words on a page. The length of an argument is no guarantee of its success, and indeed could result in more confusion, not clarity.”</p><img src="https://counter.theconversation.com/content/222327/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I know Matthew Butterick, the expert mentioned in the article. I've collaborated with him, served with him on a panel at an academic conference, and nominated him for an award he received in 2012.</span></em></p>Lawyers submitting briefs to the Supreme Court in the Trump Colorado ballot case must file a ‘certificate of word count.’ Why? As one judge put it, lawyers’ briefs are ‘too long, too long, too long.’Derek H. Kiernan-Johnson, Teaching Professor of Law, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2214602024-02-01T13:31:37Z2024-02-01T13:31:37ZWhy treason is a key topic in Trump’s 14th Amendment appeal to the Supreme Court<figure><img src="https://images.theconversation.com/files/572501/original/file-20240131-21-j0wp43.jpg?ixlib=rb-1.1.0&rect=23%2C14%2C3164%2C2107&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump's actions on Jan. 6, 2021, are key to questions about his eligibility to hold office.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SocialMediaConservativeVoices/33b4d0015eee462d9656a3c4146731d5/photo">AP Photo/Jacquelyn Martin</a></span></figcaption></figure><p>As oral arguments approach in former President Donald Trump’s U.S. Supreme Court appeal of a Colorado Supreme Court decision, <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html">many friend-of-the-court briefs</a> <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/297012/20240118111500480_23-719%20-%20Amicus%20Curiae%20Brief.pdf">in the case</a> bring up a subject not much found in public discussion of the case: <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">treason</a>.</p>
<p>Trump is appealing a Colorado ruling that the 14th Amendment bars him from holding office because he engaged in insurrection before, during and after Jan. 6, 2021. That decision – and <a href="https://www.cnn.com/2024/01/20/politics/donald-trump-ballot-removal-efforts-dg/index.html">several others in states around the nation</a>, some agreeing and some disagreeing with Colorado’s conclusion – have roots in the Constitution’s definition of treason, and Congress’ intent to block traitors from serving in the government. </p>
<p>As a <a href="https://www.law.umaryland.edu/faculty--research/directory/profile/index.php?id=055">scholar of constitutional law</a>, I have submitted legal briefs in several of those cases, explaining the <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">history of the 14th Amendment’s drafting and passage</a>, and <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299332/20240131112542122_GRABER%20Amicus%20BRIEF%20filed.pdf">discussing what Republicans immediately after the Civil War hoped to attain from constitutional reform</a>.</p>
<h2>What did Congress intend?</h2>
<p><a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a> reads:</p>
<blockquote>
<p>“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.”</p>
</blockquote>
<p>When Congress was drafting Section 3 of the 14th Amendment the year after the Civil War ended, the purpose of that provision was clear: to prevent people <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">from serving in the government</a> if they had used force to resist or overthrow the United States. To Congress, those actions constituted treason.</p>
<p>In drafting the language, Congress drew inspiration from the framers of the Constitution that was ratified from 1787 to 1789. Article III of the Constitution declares that there are two ways to commit treason against the United States: “<a href="https://constitution.congress.gov/constitution/article-3/#article-3-section-3-clause-1">levying War against</a> (the U.S.), or in adhering to (its) Enemies, giving them Aid and Comfort.”</p>
<p>Section 3 of the 14th Amendment, <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">passed by Congress and ratified by the states in the late 1860s</a>, makes the same division when describing the actions of people who should be barred from public office. There is one change: Republicans in Congress substituted the phrase “engaged in insurrection or rebellion” for “levying war.” </p>
<h2>A significant offense</h2>
<p>Treason has long been a serious crime, different from other crimes because the target was the government. </p>
<p>Since at least the 1760s, and almost certainly for centuries before that, English common law made clear that treason was not a regular crime like, say, murder: Someone who gave a weapon to a person knowing they intended to kill another person is an accessory to murder. But someone who gave a weapon to a person knowing they intended to commit treason is <a href="https://avalon.law.yale.edu/18th_century/blackstone_bk4ch3.asp">a traitor, not an accessory to treason</a>.</p>
<p>In short, treason is treason, and a person either engages in treason or does not. There are no degrees of treason.</p>
<p>This rule applied in the U.S. too: <a href="https://www.oyez.org/justices/samuel_chase">Samuel Chase</a>, who signed the Declaration of Independence and was appointed to the Supreme Court by George Washington, said so <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0009.f.cas/0009.f.cas.0924.pdf#page=16">in 1800</a>. His view was echoed <a href="https://famous-trials.com/burr/169-judgement">in 1807 by Chief Justice John Marshall</a> and in <a href="https://www.google.com/books/edition/The_Monthly_Law_Reporter/ti8ZAAAAYAAJ?hl=en&gbpv=1&dq=%E2%80%9D+the+law+knows+no+accessories+in+treason%3B+but+that+every+one+who,+if+it+were+a+felony,+would+be+an+accessory,+is,+in+the+law+of+treason,+a+principal+traitor.%E2%80%9D&pg=PA417&printsec=frontcover">1851 by Supreme Court Justice Benjamin Curtis</a>.</p>
<p>The rule was also reiterated in an 1863 case, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">U.S. v. Greathouse</a>, in which people were charged with treason for buying a ship and outfitting the vessel to break the U.S. blockade of Confederate ports. </p>
<p>Supreme Court Justice Stephen Field served on the bench of a lower federal court for that trial, as justices often did then. In directions to the jury, he declared, “all who aid … whether by open hostilities … or any part in the furtherance of the common object, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">however minute or however remote from the scene of action</a>, are equally guilty of treason.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of people climb the walls and stairs of the U.S. Capitol." src="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Violent protesters stormed the Capitol on Jan. 6, 2021.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SocialMediaConservativeVoices/1714e596e04b4367956e142598025532/photo">AP Photo/John Minchillo</a></span>
</figcaption>
</figure>
<h2>Two forms of treason</h2>
<p>In the Constitution’s Article III, and in the 14th Amendment, there are two ways a person can commit treason: by “<a href="https://constitution.congress.gov/constitution/article-3/#article-3-section-3-clause-1">levying war</a>” – which in the 14th Amendment is replaced with “<a href="https://constitution.congress.gov/browse/amendment-14/section-3/">engaged in insurrection or rebellion</a>” – or by giving “aid and comfort” to people determined to be “enemies” of the United States.</p>
<p>The distinctions were important enough for the Framers to make, and for Congress to repeat <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">in the late 1860s</a>, when the 14th Amendment was passed and ratified by the states.</p>
<p>But ever since the nation’s founding, the difference between those two has been clear, and it’s not whether a person took one treasonous action or another. Field made very clear the distinction is in the person’s nationality: By constitutional definition, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">U.S. citizens cannot be considered</a> “enemies of the United States.” They can only be viewed as rebels or insurrectionists. </p>
<p>In the Greathouse case, another federal judge, Ogden Hoffmann, served alongside Field. When Hoffmann spoke to the jury, he agreed with Field that the distinction between the two categories was whether the fighters were U.S. citizens or not. And he was clear that any treasonous action a person took was covered by either category:</p>
<blockquote>
<p>“<a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">Every act which</a>, if performed with regard to a public and foreign enemy, would amount to ‘an adhering to him, giving him aid and comfort,’ will, with regard to a domestic rebellion, constitute a levying of war. And, conversely, every act which, with regard to domestic rebellion, will constitute ‘a levying of war,’ will, with regard to a foreign enemy, constitute ‘an adhering to him, giving him aid and comfort.’”</p>
</blockquote>
<h2>Trump’s defenders</h2>
<p>Many of those who support Trump have <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298133/20240118180130038_23-719_Amicus%20Brief.pdf">argued his actions don’t amount to engaging in insurrection</a>. They say that, therefore, he can’t be disqualified from office for that reason. </p>
<p><a href="https://www.supremecourt.gov/DocketPDF/23/23-719/297012/20240118111500480_23-719%20-%20Amicus%20Curiae%20Brief.pdf">Several of his allies</a> have even <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">pointed out</a> that <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298119/20240118165017246_Amicus%20Brief%20Final.pdf">nobody has accused him of giving “aid and comfort”</a> to the insurrectionists. </p>
<p>At least one of those supporters has gone so far as to claim that the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298119/20240118165017246_Amicus%20Brief%20Final.pdf">failure to accuse him of “aid and comfort” is a reason to overturn</a> the Colorado ruling and declare Trump eligible to hold office.</p>
<p>Trump did not personally attack a police officer on Jan. 6, 2021, or aid and abet a foreign nation. In legal terms, then, Trump did not offer “aid and comfort” to “enemies” of the United States: The people he <a href="https://apnews.com/article/capitol-siege-florida-donald-trump-conspiracy-congress-040a763522081e592af10fae682fda70">urged to march on the Capitol</a> and <a href="https://www.cnn.com/2021/01/07/politics/trump-history-comments-trnd/index.html">said kind words to</a> may have been enemies of democracy. But like Trump himself, they were American citizens, and therefore, constitutionally speaking, could not be enemies of the United States. </p>
<p>Rather, they were insurrectionists. And as Hoffman’s 1863 statement makes clear, the constitutional law of treason does not differentiate between supporting them and being among them.</p><img src="https://counter.theconversation.com/content/221460/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark A. Graber filed an amicus brief in the Colorado case, and another in the U.S. Supreme Court, that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment.</span></em></p>US law has long held that those who support rebels and insurrectionists are just as guilty of treason as those who support foreign enemies.Mark A. Graber, University System of Maryland Regents Professor of Law, University of MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217142024-01-27T21:42:47Z2024-01-27T21:42:47ZColorado voters seeking to disqualify Trump from the ballot tell Supreme Court Jan. 6 ‘will forever stain’ US history<figure><img src="https://images.theconversation.com/files/571733/original/file-20240127-15-zb94el.jpeg?ixlib=rb-1.1.0&rect=25%2C0%2C5665%2C3788&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of President Donald Trump climb the west wall of the U.S. Capitol on Jan. 6, 2021. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ElectoralCollegeProtests/7143302aa07c4735add48358925717d9/photo?Query=Jan.%206%20rioters%20capitol&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=730&digitizationType=Digitized&currentItemNo=13&vs=true&vs=true">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>The plaintiffs seeking to remove former President Donald Trump from Colorado’s 2024 presidential election ballots <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298854/20240126115645084_23-719%20Anderson%20Respondents%20Merits%20Brief.pdf">filed their brief to the U.S. Supreme Court</a> on Jan. 26, 2024. They asked the court to uphold the <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">ruling by Colorado’s highest court</a> that Trump engaged in an insurrection against the United States and, accordingly, should be disqualified from the presidential election under <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a>.</p>
<p>Trump “refused to accept the will of the over 80 million Americans who voted against him,” the brief filed by Norma Anderson and several other plaintiffs said. “Instead of peacefully ceding power, Trump intentionally organized and incited a violent mob to attack the United States Capitol in a desperate effort to prevent the counting of electoral votes cast against him.” </p>
<p>Anderson, a Republican and former Colorado state lawmaker, and several other plaintiffs had filed suit in September 2023 to keep Trump off the 2024 Colorado ballots. The Colorado Supreme Court’s conclusion that Trump was ineligible to appear on the ballot was appealed by Trump to the U.S. Supreme Court. </p>
<p>The 14th Amendment’s Section 3 bars those who have “<a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">engaged in insurrection or rebellion</a>” from holding federal office.</p>
<p>The outcome of the case will likely determine if Trump can appear on <a href="https://www.axios.com/2024/01/07/trump-ballot-remove-14th-amendment-map">ballots in states across the country</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Tweet by then-President Donald Trump, saying 'I will be there. Historic day!' posted 3 days before the Jan. 6 U.S. Capitol riot." src="https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Tweet by then-President Donald Trump, posted three days before the Jan. 6 U.S. Capitol riot.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpImpeachment/c0190564b0ae43cd8895d3155ef7d6cc/photo?Query=Jan.%206%20%20Donald%20Trump%20ellipse&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1251&digitizationType=Digitized&currentItemNo=2&vs=true&vs=true">Senate Television via AP</a></span>
</figcaption>
</figure>
<h2>Facts vs. assertions</h2>
<p>Unlike <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298125/20240118171750343_Trump%20v%20Anderson%20Petitioner%20Brief%20on%20the%20Merits.pdf">Trump’s brief</a>, which he filed with the Supreme Court on Jan. 18, Anderson primarily focuses on the facts, pointing out that Trump’s brief lacks any meaningful rebuttal of the “most damning evidence against him.” </p>
<p>Some of the “most damning evidence” that Anderson’s brief highlights includes how Trump “deliberately summoned to D.C. an angry and armed crowd who came ready to fight” and that Trump’s speech on the White House Ellipse “explicitly and implicitly incited the angry and armed crowd to imminent lawless violence.” </p>
<p>The Anderson brief describes how the Jan. 6 attackers “injured over 140 law enforcement officers, left one dead, and forced Congress and Vice President (Mike) Pence to flee for their lives.” </p>
<p>In his brief, Trump mainly argued that Section 3 of the 14th Amendment does not apply to the presidency because the president <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">is not an “officer” of the United States under the Constitution</a>. Trump’s brief also argued that Section 3 does not bar a candidate from running for office but rather bars the candidate from holding office, if elected. </p>
<p>And Trump asserted in his brief that “<a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">Calling for peace, patriotism, respect for law and order</a>, and directing the Secretary of Defense to do what needs to be done to protect the American people is in no way inciting or participating in an ‘insurrection.’” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with sandy colored hair at a big desk in front of three large windows." src="https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will Trump’s attempts to stay in the Oval Office now keep him from returning to it?</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RussiaUkraineWarTrump/3b33dc13425b410ab7aabb27112f7865/photo?Query=Donald%20Trump%20oval%20office&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1473&digitizationType=Digitized&currentItemNo=14&vs=true&vs=true">AP Photo/Evan Vucci</a></span>
</figcaption>
</figure>
<h2>‘Monumental’ case</h2>
<p>The Supreme Court will have several issues to consider in this case. The justices will have to address the legal questions presented by Trump, such as whether Section 3 of the 14th Amendment applies to the presidency. And the court will also have to answer mixed questions of law and fact.</p>
<p>Traditionally, the Supreme Court does not delve into questions of fact in the cases it considers – those facts are understood to have been established in lower court decisions. And while I initially stated that the <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">court would not consider</a> such questions in this case, I now join other constitutional scholars who believe the court will likely have to answer what constitutes an insurrection under the 14th Amendment, and whether Trump’s actions – or inactions – sufficiently meet that definition.</p>
<p>Perhaps the justices will turn to the history of the 14th Amendment to answer those questions. As Anderson’s brief points out, Congress and the states ratified the amendment, including Section 3, after the Civil War because they believed that oath-breaking insurrectionists could, if given the power of elected office, <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">dismantle the country’s constitutional system</a> from within. The 39th Congress considered Section 3 a necessary measure of self-defense – ensuring that those who had proven themselves faithless would be deprived of the political power to threaten the future peace and security of the United States.</p>
<p>But Section 3’s text may present the deciding factors for the court. Section 3 clearly states that “No person shall … hold any office, civil or military, under the United States.” It provides no language that appears to prohibit candidates from running for office. </p>
<p>Ultimately, Trump v. Anderson will be a monumental case. Regardless of its outcome, however, Anderson’s brief asserts that the “desecration of the U.S. Capitol by a mob of insurrectionists on January 6, 2021, will forever stain our Nation’s history.”</p><img src="https://counter.theconversation.com/content/221714/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In their Supreme Court brief, Colorado residents seeking to bar Trump from their state’s ballot say that ‘Trump intentionally organized and incited a violent mob to attack the US Capitol.’Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2213962024-01-19T01:58:08Z2024-01-19T01:58:08ZTrump defends himself to the Supreme Court, saying he called ‘for peace, patriotism, respect for law and order’ on Jan. 6 and is not an insurrectionist<figure><img src="https://images.theconversation.com/files/570080/original/file-20240118-23-m47epr.jpeg?ixlib=rb-1.1.0&rect=33%2C0%2C5553%2C3718&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S Supreme Court will decide whether former President Donald Trump can be kept off the 2024 presidential ballot. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/4df6455230514c2b8f930927d90862af/photo?Query=Trump%20colorado%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=268&currentItemNo=4">AP Photo/Mariam Zuhaib</a></span></figcaption></figure><p>Filing late in the day to meet the Jan. 18, 2024, deadline, former President Donald <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298125/20240118171750343_Trump%20v%20Anderson%20Petitioner%20Brief%20on%20the%20Merits.pdf">Trump submitted a brief to the U.S. Supreme Court</a> that asked the justices to overturn the <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">Colorado Supreme Court’s decision</a> to remove him from that state’s primary ballot. </p>
<p>Norma Anderson, a Republican and former Colorado state lawmaker, and several other plaintiffs had <a href="https://www.citizensforethics.org/wp-content/uploads/2023/09/Anderson-v-Griswold_Verified-Petition_2023.09.06_01.pdf">filed suit in September 2023</a> to keep Trump off the 2024 Colorado ballots. The plaintiffs argued that Trump was disqualified from public office because his “efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States.” Their arguments were based on <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a> of the Constitution, which bans insurrectionists from holding public office.</p>
<p>The <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">Colorado Supreme Court issued its ruling</a> in the case, originally known as Anderson v. Griswold, on Dec. 19. The Colorado justices concluded that Trump was disqualified from holding the office of the president because of his actions on Jan. 6, 2021, and they affirmed the trial court’s conclusion that Trump engaged in an insurrection. </p>
<p>“These actions constituted overt, voluntary, and direct participation in the insurrection,” <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">the court majority wrote</a>. </p>
<p>Trump faces more than a dozen similar <a href="https://www.axios.com/2024/01/07/trump-ballot-remove-14th-amendment-map">legal challenges to his candidacy in other states as well</a>, based on Section 3. Many complainants, jurists and constitutional law scholars argue that Trump is disqualified to hold office because he “engaged in insurrection or rebellion” against the U.S. based on his actions before, during and after the attack on the U.S. Capitol on Jan. 6, 2021.</p>
<p>Trump appealed the Colorado Supreme Court’s decision to the U.S. Supreme Court, and the justices agreed to consider the case. In his Jan. 18 brief, Trump presented a range of arguments for why the Colorado decision was wrong. Chief among them: He claimed that Section 3 of the 14th Amendment does not apply to the presidency and that he did not engage in an insurrection against the United States. </p>
<p>Describing his actions on Jan. 6, 2021, Trump’s brief says “Calling for peace, patriotism, respect for law and order, and directing the Secretary of Defense to do what needs to be done to protect the American people is in no way inciting or participating in an ‘insurrection.’” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a dark winter coat standing on a stage outside in front of a lot of people, with many American flags behind him." src="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump speaks at the ‘Stop The Steal’ Rally on Jan. 6, 2021, in Washington.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-at-the-stop-the-steal-rally-news-photo/1294908917?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<h2>Officers and insurrections</h2>
<p>Trump’s brief attacks the Colorado Supreme Court’s “dubious interpretation of (S)ection 3 of the Fourteenth Amendment.” He argues that Section 3 does not apply to the presidency because the “President is not an ‘officer of the United States.’” Trump points to <a href="https://www.archives.gov/founding-docs/constitution-transcript">other parts of the Constitution</a> that use the term “Officer,” and he argues that an “Officer of the United States” only includes political appointees, such as the Secretary of State, and not anyone who is elected to an office. </p>
<p>There is merit to this argument, but Trump confuses the original intent of the Framers, when the Constitution was initially ratified, with the intent of the <a href="https://constitutioncenter.org/the-constitution/drafting-table-mobile/item/amendment-xiv">39th Congress that drafted the 14th Amendment</a> decades after the nation’s founding. Several constitutional law scholars argue that the 39th Congress did intend for Section 3 <a href="https://conservancy.umn.edu/bitstream/handle/11299/221946/02%20Magliocca.pdf">to apply to the presidency</a> because congressional records highlight senators’ and representatives’ specific comments that it should.</p>
<p>Whether Section 3 applies to the presidency is likely the first question that the Supreme Court will have to answer. While Trump also claims that he did not engage in an insurrection, the justices likely will not consider whether he did or not because the court generally does not disturb the factual conclusions of trial courts. </p>
<p>But the justices may have to consider the other legal questions that Trump raises. Trump argues that even if Section 3 applies to the presidency, it cannot be enforced because Congress has not passed a law to enforce it. But <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3946576">as a constitutional law scholar</a>, I believe that perhaps his strongest argument and the justices’ easiest legal question to answer turns to the plain text of Section 3, which states that it bars insurrectionists and rebels from holding office. It does not say anything about running for office.</p>
<h2>Bullets, not ballots</h2>
<p><a href="https://www.britannica.com/topic/Fourteenth-Amendment">The 14th Amendment, ratified in 1868</a>, is considered a “<a href="https://www.gilderlehrman.org/history-resources/essays/reconstruction-amendments-official-documents-social-history">Reconstruction Amendment</a>,” along with the 13th and 15th amendments. Congress and state legislatures ratified the Reconstruction Amendments in the years immediately following the end of the Civil War. Within that context, the drafters of the Reconstruction Amendments sought, among many things, to prevent Confederates from <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">serving in public office following their unsuccessful rebellion</a> against the Union. </p>
<p>Section 3 of the 14th Amendment says:</p>
<blockquote>
<p>“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 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.” </p>
</blockquote>
<p>With 15 commas, the meaning and application of Section 3 may confuse many readers. Constitutional law scholar Mark Graber provided a thorough discussion of each sentence fragment and clause in a <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">recent article for The Conversation</a>. In his summary of this section of the 14th Amendment, he says “These words in the amendment declare that those who turn to bullets when ballots fail to provide their desired result cannot be trusted as democratic officials.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A page from a legal document filed 'In the Supreme Court of the United States'" src="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A page from the appeal by former President Donald Trump asking the U.S. Supreme Court to review the Colorado Supreme Court’s decision.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/f1e2b09db9de4b658048c40c6627b9cf/photo?Query=Trump%20colorado%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=268&currentItemNo=5">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>Settling the unsettled</h2>
<p>The Supreme Court agreed to consider Trump’s appeal in early January 2024 because whether Trump is constitutionally qualified to serve as the president of the United States again is a critical question in an area of law that is not settled. While the Supreme Court <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10569">considered some general cases of insurrection and rebellion</a> following the Civil War, the Supreme Court has never faced this specific question regarding Section 3.</p>
<p>The Supreme Court will consider whether the Colorado Supreme Court erred in ordering the former president excluded from the 2024 presidential primary ballot.</p>
<p>But this specific question also presents a number of related legal questions that the Supreme Court could also decide, ranging from whether Section 3 applies to the presidency to whether Section 3 only prohibits a candidate from serving in office as opposed to appearing on any ballot. Then, of course, there is the factual issue as to whether the former president “engaged in an insurrection or rebellion” against the United States.</p>
<p>The Supreme Court will hear oral arguments in <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">Trump v. Anderson on Feb. 8, 2024</a>.</p><img src="https://counter.theconversation.com/content/221396/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>No conflicts.</span></em></p>The first shoe has dropped in the Supreme Court’s process of considering whether Donald Trump is eligible to be president.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206432024-01-06T20:43:09Z2024-01-06T20:43:09ZUS Supreme Court decision on Trump-Colorado ballot case ‘monumental’ for democracy itself, not just 2024 presidential election<figure><img src="https://images.theconversation.com/files/568098/original/file-20240106-17-wrjvyv.jpeg?ixlib=rb-1.1.0&rect=83%2C17%2C3910%2C2640&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-stands-on-december-11-2020-in-news-photo/1230073841?adppopup=true">Stefani Reynolds/Getty Images</a></span></figcaption></figure><p><em>Momentous questions for the U.S. Supreme Court and momentous consequences for the country are likely now that the <a href="https://www.supremecourt.gov/orders/courtorders/010524zr2_886b.pdf">court has announced it will decide</a> whether former president and current presidential candidate Donald Trump is eligible to appear on the Colorado ballot.</em> </p>
<p><em>The court’s decision to consider the issue comes in the wake of <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf">Colorado’s highest court ruling</a> that Trump had engaged in insurrection and therefore was barred from appearing on the state’s GOP primary ballot by Section 3 of the 14th Amendment to the U.S. Constitution. <a href="https://www.maine.gov/sos/news/2023/Decision%20in%20Challenge%20to%20Trump%20Presidential%20Primary%20Petitions.pdf">Maine’s secretary of state also barred Trump</a> from the state’s primary ballot, and more than a <a href="https://www.washingtonpost.com/politics/2023/12/28/here-are-key-states-where-trumps-ballot-status-is-being-challenged/">dozen other states are considering similar moves</a>.</em> </p>
<p><em>The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame election law scholar <a href="https://scholar.google.com/citations?user=PSynZNoAAAAJ&hl=en&oi=ao">Derek Muller</a> about the Supreme Court’s decision to take the case, which will rest on the court’s interpretation of a post Civil War-era amendment aimed at keeping those who “<a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">engaged in insurrection or rebellion</a>” from serving in political office.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A blue sign with white printing that says 'Trump 2024.'" src="https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will Trump be able to stay on the ballot in 2024?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/signs-supporting-republican-presidential-candidate-former-u-news-photo/1692356195?adppopup=true">Scott Olson/Getty Images</a></span>
</figcaption>
</figure>
<p><strong>On a scale of 1 to 10, how big is this?</strong></p>
<p>In terms of potential impact, it’s a 10. It is excluding a former president from appearing on the ballot for engaging in insurrection. </p>
<p>That’s monumental for several reasons. It’s <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10569">the first major and material use of this provision</a> of the Constitution since the Civil War. It’s the first time it has kept a presidential candidate off the ballot, much less a former one and the apparent front-runner for the Republican Party nomination.</p>
<p>But on the flip side, what are the odds of that actually happening? That’s more speculative. And so the number is probably less than 10. This was an extraordinary major decision from the Colorado Supreme Court. But you have to temper that by saying, well, there’s a chance it gets reversed, and then Trump appears on the ballot and this mostly goes away. </p>
<p><strong>What are the risks here for the court? Legal scholar Michael W. McConnell at Stanford <a href="https://www.washingtonpost.com/politics/2024/01/05/supreme-court-trump-colorado-ballot-insurrection/">said in The Washington Post</a>, “There is no way they can decide the case without having about half the country think they are being partisan hacks.”</strong></p>
<p>This is a binary choice that either empowers the Republican candidate or prevents voters from choosing him. So when you have a choice in such stark, political and partisan terms, whatever the Supreme Court is doing is often going to be viewed through that lens by many voters. </p>
<p>I think it’s a reason why there will be as much effort as possible internally on the court to reach a consensus view to avoid that appearance of partisanship on the court, that appearance of division on the court. If there’s consensus, it’s harder for the public to sort of point the finger at one side or another. </p>
<p>That’s much easier said than done. The court decides questions with major political consequences all the time. But to decide the questions in the context of an upcoming election feels different.</p>
<p><strong>The justices <a href="https://www.scotusblog.com/2024/01/supreme-court-agrees-to-hear-trump-plea-to-remain-on-colorado-ballot/">granted only Trump’s appeal</a> to consider the case, not the Colorado Republican Party’s. Is this significant, and if so, how?</strong></p>
<p>The <a href="https://www.supremecourt.gov/DocketPDF/23/23-696/294416/20231227184621636_Colorado-Republican-State-Central-Committee-v.-Anderson-Cert-Petition%20PDFA.pdf">Colorado Republican Party</a> and <a href="https://www.documentcloud.org/documents/24253189-trump-v-anderson-2024-01-03-petition-for-writ-of-certiorari">the Trump campaign</a> were on two different tracks in their appeals. When you grant both cases, you invite two sets of attorneys and parties to participate and add complexity. I think the decision to grant only Trump’s case is a decision to make this as streamlined a process as possible. </p>
<p><strong>Will whatever decision the court makes put to rest the ballot access questions in all the other states?</strong></p>
<p>There are a couple of very narrow grounds the court might rule on. For example, they might say, we’re not ready to hear this case because it’s only a primary, or Colorado so abused its own state procedures as to run afoul of federal constitutional rules. Those would be kind of rulings <a href="https://theconversation.com/trump-barred-from-colorado-ballot-now-what-220273">only applicable to the Colorado case or only applicable in the primaries</a>. </p>
<p>There’s a chance the court does this, but my sense – not to speculate too much – is that’s going to be deeply unsatisfying for the court, knowing that if they delay in this case, another case is likely coming later in the summer where these questions will have to be addressed in August or September. That’s much closer to the general election. Those are months when the court is in recess, and they would have to come back from their summer vacation early. So my sense is that the court will try to resolve these on a comprehensive basis. They’ve scheduled oral argument on Feb. 8, 2024 so they want to move on as quickly as possible to put this to rest.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A legal document in which former President Donald Trump asks the U.S. Supreme Court to review the Colorado Supreme Court's decision." src="https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A page from the appeal by former President Donald Trump asking the U.S. Supreme Court to review the Colorado Supreme Court’s decision.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/f1e2b09db9de4b658048c40c6627b9cf/photo?Query=Trump%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1401&currentItemNo=5">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<p><strong>You submitted an amicus brief in the Colorado case for neither side. What was it you wanted to tell the court?</strong></p>
<p><a href="https://cdn.theconversation.com/static_files/files/2999/Muller_Amicus_Colorado.pdf?1704560255">I raised two general points</a> and then one specific to Colorado. The two general points are that I think states have the power to judge the <a href="https://www.usa.gov/requirements-for-presidential-candidates">qualifications of presidential candidates</a> and keep them off the ballot. And states have done that over the years to say if you were born in Nicaragua, or you’re 27 years old, we’re going to keep you off the ballot. </p>
<p>But I also say states have no obligation to do that. You can look throughout history, going back to the 1890s, where ineligible candidates’ names have been printed and put on the ballot. And this isn’t a question of whether or not the state wants to do it – they have the flexibility to do it. So I wanted to set those two framing questions up so the court doesn’t veer too much in one direction or the other to say “states have no power” or “of course states have power regardless of what the legislature has asked them to do.” </p>
<p>The point specific to Colorado is I doubted there was jurisdiction in Colorado for the state Supreme Court to hear this case, but the court disagreed with me.</p>
<p><strong>What could happen during the period between now and the court’s decision that could be consequential?</strong></p>
<p>More states are going to consider these challenges as the ballot deadlines approach. And we know that there’s Super Tuesday the first Tuesday of March when a significant number of states hold presidential primaries. So I think there’s a lot of uncertainty in the next six weeks about which states might exclude him. </p>
<p>On top of that is voter uncertainty. Voters are making their decisions and weighing the trade-offs of who to vote for. Right now, this is a cloud hanging over the Trump campaign. It’s not just that he’s been declared ineligible in Colorado and Maine. It’s the question in other states for other voters: Am I wasting my vote, is this actually an ineligible candidate? Should I be voting for somebody else? </p>
<p>That’s not an enviable position for voters to be in – that they might cast their ballots only to find out later that they’re not going to be counted.</p><img src="https://counter.theconversation.com/content/220643/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I filed an amicus brief on my own behalf in support of neither party in the Colorado Supreme Court.</span></em></p>The US Supreme Court faces a case with huge repercussions for the 2024 presidential election – and American democracy. An election law scholar explains why.Derek T. Muller, Professor of Law, University of Notre DameLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2202732023-12-21T02:07:03Z2023-12-21T02:07:03ZTrump barred from Colorado ballot – now what?<figure><img src="https://images.theconversation.com/files/566998/original/file-20231220-17-avsgja.jpeg?ixlib=rb-1.1.0&rect=35%2C23%2C3958%2C2634&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump at a campaign event in Waterloo, Iowa, on Dec. 19, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-and-2024-presidential-hopeful-donald-news-photo/1860797047?adppopup=true">Kamil Krzaczysnki/AFP via Getty Images</a></span></figcaption></figure><p><em>In the wake of the Colorado Supreme Court ruling that <a href="https://www.cnn.com/2023/12/19/politics/trump-colorado-supreme-court-14th-amendment">bars Donald Trump from the ballot</a> in the state’s primary and general elections, The Conversation U.S. asked <a href="https://www.law.umaryland.edu/faculty--research/directory/profile/index.php?id=055">Mark A. Graber</a>, regents professor of law at the University of Maryland Carey Law School, what this all means – for Trump, for regular Americans and for the 2024 election.</em></p>
<p><em>The key questions are about <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment to the U.S. Constitution</a>. That provision bars people from holding federal and state offices if they have taken an oath to uphold the Constitution and then violated that oath by participating in an insurrection.</em></p>
<p><em>Graber filed an <a href="https://www.dropbox.com/scl/fi/x4tl8vbdcy6bmqfr6p3jv/002-2023-11-20-Amicus-Brief-Professor-Graber-CSC-Date-Stamped.pdf?rlkey=m1pbl5qtycw1hzue9kt2n75d5&dl=0">amicus brief</a> that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment. Some of Graber’s scholarly works, including a <a href="https://dx.doi.org/10.2139/ssrn.4591133">journal article</a> and a <a href="https://kansaspress.ku.edu/9780700635030/">book</a>, were cited in the court’s decision.</em></p>
<p><em>The court’s ruling has sparked a <a href="https://www.bostonglobe.com/2023/12/20/nation/republicans-angry-trump-disqualified-colorado-ballot/">nationwide outcry</a> – both in support of its conclusions and in opposition to them. And many other states may have to make similar decisions.</em></p>
<p><em>Supporters of the court’s decision say it correctly determined that Trump swore an oath to uphold the Constitution at his inauguration, then participated in an insurrection on Jan. 6, 2021, and therefore is <a href="https://thehill.com/homenews/house/4368931-democratic-lawmakers-voice-support-for-colorado-courts-ruling-on-trump/">not qualified to serve</a> as president. Critics of the decision say <a href="https://www.washingtonpost.com/politics/2023/12/20/trump-republican-rivals-colorado-ballot/">judges are trying to usurp voters’ right</a> to choose the president they want.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man wearing a blue shirt and a hat drops off a ballot in an official box." src="https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Colorado Supreme Court said Donald Trump could not appear on the state’s 2024 primary or general election ballot. Here, a voter drops off his ballot in Denver during the 2022 election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/voter-places-his-ballot-in-a-drop-off-box-outside-the-la-news-photo/1244617819?adppopup=true">Photo by Michael Ciaglo/Getty Images</a></span>
</figcaption>
</figure>
<h2>Why are people so interested in this ruling?</h2>
<p>Somebody had to go in the water. I think the last thing anyone wanted was for the first successful disqualification of Trump to be a month before the election. Now, the issue is on the table. It wouldn’t surprise me if other states discover the water isn’t all that bad and disqualify Trump. Then we can get answers before people start voting in the primaries and in the general election. </p>
<h2>From here, what happens procedurally?</h2>
<p>One answer – and I doubt this would happen, but it actually might make sense – is that Trump doesn’t bother appealing. He doesn’t need Colorado delegates to get the Republican nomination. He doesn’t need Colorado electoral votes to win the presidency. And appealing is time-consuming and expensive.</p>
<p>Dating back as far as the <a href="https://www.law.cornell.edu/wex/judiciary_act_of_1789">Judiciary Act of 1789</a>, federal laws have allowed certain types of rulings from states’ highest courts to be appealed directly to the U.S. Supreme Court.</p>
<p>Everybody expects the Supreme Court to get involved. But nobody thinks it is required to. If it were appealed, the court could decline to hear the case, or accept it.</p>
<p>So Trump could appeal. If he didn’t appeal, or if the Supreme Court declined to take the case, then he’s disqualified in Colorado. Perhaps other lawsuits would take place, and he would be on the ballot in some states and not on the ballot in others. The Supreme Court could also say it would consider taking up a future case if a conflict between state court rulings arose.</p>
<h2>What if the Supreme Court does take the case?</h2>
<p>Most people think there are two options for the outcome, but I think there are three.</p>
<p>The simple option is that the Supreme Court could rule that yes, Trump is disqualified under Section 3 of the 14th Amendment. Then he can’t be on the ballot anywhere.</p>
<p>The second option is the Supreme Court says he’s not disqualified. But the court could hand down two different kinds of rulings saying that.</p>
<p>It could reverse the Colorado Supreme Court’s decision on substance, finding that Trump did not engage in insurrection as insurrection is understood by the 14th Amendment. That would mean no further proceedings are permissible – no state can challenge it, and Congress can’t challenge it.</p>
<p>Or the Supreme Court could reverse it on a technicality – maybe Trump is disqualified, but the 14th Amendment’s Section 3 doesn’t apply to a primary election, or Congress should weigh in, or one or another detail that could mean another lawsuit down the line might be successful.</p>
<h2>That’s two options. What’s the third?</h2>
<p>There’s a third major option if you look at the way the framers understood how the 14th Amendment would operate. The <a href="https://memory.loc.gov/ammem/amlaw/lwcg.html">record of their debates</a> shows that they believed it would first be implemented in the states. </p>
<p>Part of the history is people in the 19th century thought differently than we do. Not simply that they came to different conclusions, but they understood the structure of the government quite differently.</p>
<p>Today, we hear people say many laws and standards can’t be established at the state level, that they need to be uniform across the country. But back then, people were less fearful of diversity. So they were willing to let states vary more. If uniformity was needed, or if Congress did not approve of what the states were doing, Congress could pass more general legislation. </p>
<p>So the court could say, “Colorado has disqualified Trump. That’s OK for Colorado. Other states, you get to do what you think best. And Congress, if you don’t like the mish-mosh, pass a law standardizing it.” I think that’s the least likely outcome, but it may be the one most consistent with the history.</p>
<h2>The Colorado Supreme Court says that there doesn’t need to be a criminal conviction of any kind, or a conviction from impeachment, for this provision of the 14th Amendment to apply. Does it matter that Trump has not yet been convicted of any crimes?</h2>
<p>The court is absolutely correct. </p>
<p>There are a number of different ways of understanding this point.</p>
<p>The first is that Section 3 states a qualification to be president, just like <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">being born a United States citizen</a>. So the Colorado Secretary of State would make the same decision if there was evidence that Trump was born Latvian. Being born in Latvia is not a crime. But it’s a disqualification.</p>
<p>The second aspect is that prosecutors charge people with crimes for various reasons. They may have decided to seek prosecution of Trump for other actions. Absence of a conviction doesn’t mean an action didn’t happen.</p>
<p>Or imagine that Trump was still president and the attorney general didn’t want to prosecute because the attorney general is in cahoots with Trump. A private person could still bring the lawsuit.</p>
<p>Right after the Civil War, numerous people were disqualified under this provision, none of whom were convicted of anything.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large, impressive building with columns atop wide granite stairs." src="https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Colorado case may well be headed for the U.S. Supreme Court.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/steps-to-the-united-states-supreme-court-washington-royalty-free-image/1364488146?phrase=US+Supreme+Court&adppopup=true">joe daniel price/Getty Images</a></span>
</figcaption>
</figure>
<h2>Why is a state court ruling on a federal constitutional provision or requirement?</h2>
<p>Is capital punishment constitutional? The death penalty trial starts in the state court. It bubbles up until it gets to the state supreme court, then it goes to the federal courts. Same with abortion.</p>
<p>States decide constitutional issues all the time. Indeed, almost all constitutional issues are first decided by state courts.</p>
<h2>What does this mean on a broader scale for the 2024 election?</h2>
<p>We’re not at the end. We just got out of the opening. So the meaning could be almost nothing. The U.S. Supreme Court could reverse the Colorado ruling and say all these lawsuits are wrong. And so we have an interesting academic discussion, but nothing changes.</p>
<p>Or we could have a very long debate about this. And at some point, for example, a number of prominent Republicans could conclude that Trump really is an insurrectionist, and this starts to have serious play in Republican primaries.</p>
<p>We’re still too early to know whether this is a blip or an earthquake, or something in between.</p>
<p>People are scrambling to figure out what they’re going to do. The Colorado Republican Party has just announced they’re <a href="https://www.nbcnews.com/politics/2024-election/colorado-gop-caucus-primary-trump-supreme-court-rcna130591">considering a caucus rather than the primary</a> to avoid needing Trump’s name on a state ballot – at least for the primaries. People are maneuvering.</p>
<h2>How does it feel to be cited in a Colorado Supreme Court decision like this?</h2>
<p>I’m an academic. Favorable citations are 100 on a scale of 100 points. Unfavorable citations are 99. No citations is zero.</p><img src="https://counter.theconversation.com/content/220273/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark A. Graber filed an amicus brief in the Colorado case that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment.</span></em></p>A historian and legal scholar of a key part of the US Constitution explains what happens now that the Colorado Supreme Court has ruled Trump cannot be on the state’s presidential ballots.Mark A. Graber, University System of Maryland Regents Professor of Law, University of MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2197632023-12-20T01:26:01Z2023-12-20T01:26:01ZWhy 14th Amendment bars Trump from office: A constitutional law scholar explains principle behind Colorado Supreme Court ruling<figure><img src="https://images.theconversation.com/files/566655/original/file-20231219-17-k5xuyd.jpg?ixlib=rb-1.1.0&rect=25%2C12%2C4277%2C2851&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">On Jan. 6, 2021, then-President Donald Trump exhorted followers to object to the results of the 2020 presidential election.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiot/71cf82caf12d48ce8e14571685ad0441/photo">AP Photo/Evan Vucci</a></span></figcaption></figure><p>In 2024, former President Donald Trump will face some of his greatest challenges: criminal court cases, primary opponents and constitutional challenges to his eligibility to hold the office of president again. The Colorado Supreme Court has pushed that latter piece to the forefront, ruling on Dec. 19, 2023, that <a href="https://www.cnn.com/2023/12/19/politics/trump-colorado-supreme-court-14th-amendment">Trump cannot appear on Colorado’s 2024 presidential ballot</a> because of his involvement in the Jan. 6, 2021, insurrection.</p>
<p>The reason is the 14th Amendment to the Constitution, <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">ratified in 1868</a>, three years after the Civil War ended. Section 3 of that amendment wrote into the Constitution the principle President Abraham Lincoln set out just three months after the first shots were fired in the Civil War. On July 4, 1861, he spoke to Congress, declaring that “<a href="https://millercenter.org/the-presidency/presidential-speeches/july-4-1861-july-4th-message-congress">when ballots have fairly, and constitutionally, decided, there can be no successful appeal back to bullets</a>.”</p>
<p>The text of <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment states</a>, in full:</p>
<blockquote>
<p>“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.”</p>
</blockquote>
<p>To me as a <a href="https://www.law.umaryland.edu/faculty--research/directory/profile/index.php?id=055">scholar of constitutional law</a>, each sentence and sentence fragment captures the commitment made by the nation in the wake of the Civil War to govern by constitutional politics. People seeking political and constitutional changes must play by the rules set out in the Constitution. In a democracy, people cannot substitute force, violence or intimidation for persuasion, coalition building and voting.</p>
<h2>The power of the ballot</h2>
<p>The first words of Section 3 describe various offices that people can only hold if they satisfy the constitutional rules for election or appointment. The Republicans who wrote the amendment repeatedly declared that Section 3 <a href="https://balkin.blogspot.com/2023/11/presidents-as-officers-of-and-under.html">covered all offices established by the Constitution</a>. That included the presidency, a point many participants in framing, ratifying and implementation debates over constitutional disqualification made explicitly, as documented in the <a href="https://memory.loc.gov/ammem/amlaw/lwcglink.html#anchor39">records of debate in the 39th Congress</a>, which wrote and passed the amendment.</p>
<p>Senators, representatives and presidential electors are spelled out because <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591133">some doubt existed when the amendment was debated in 1866</a> as to whether they were officers of the United States, although they were frequently referred to as such in the course of congressional debates. </p>
<p>No one can hold any of the offices enumerated in Section 3 without the power of the ballot. They can only hold office if they are voted into it – or nominated and confirmed by people who have been voted into office. No office mentioned in the first clause of Section 3 may be achieved by force, violence or intimidation.</p>
<h2>A required oath</h2>
<p>The next words in Section 3 describe the oath “to support [the] Constitution” that <a href="https://constitution.congress.gov/constitution/article-6/">Article 6 of the Constitution</a> requires all office holders in the United States to take. </p>
<p>The people who wrote Section 3 insisted during congressional debates that <a href="https://memory.loc.gov/ammem/amlaw/lwcglink.html#anchor39">anyone who took an oath of office</a>, including the president, were subject to Section 3’s rules. The presidential <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-8">oath’s wording</a> <a href="https://www.law.cornell.edu/uscode/text/5/3331">is slightly different</a> from that of other federal officers, but everyone in the federal government swears to uphold the Constitution before being allowed to take office. </p>
<p>These oaths bind officeholders to follow all the rules in the Constitution. The only legitimate government officers are those who hold their offices under the constitutional rules. Lawmakers must follow the Constitution’s rules for making laws. Officeholders can only recognize laws that were made by following the rules – and they must recognize all such laws as legitimate.</p>
<p>This provision of the amendment ensures that their oaths of office obligate officials to govern by voting rather than violence.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit raises his right hand and takes an oath, administered by a man in a judicial robe." src="https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Donald Trump takes the presidential oath of office on Jan. 20, 2017.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-j-trump-is-sworn-in-as-the-45th-president-news-photo/632200410">Tom Williams/CQ Roll Call</a></span>
</figcaption>
</figure>
<h2>Defining disqualification</h2>
<p>Section 3 then says people can be disqualified from holding office if they “engaged in insurrection or rebellion.” Legal authorities from the American Revolution to the post-Civil War Reconstruction understood an insurrection to have occurred when two or more people <a href="https://dx.doi.org/10.2139/ssrn.4591133">resisted a federal law by force or violence</a> for a public, or civic, purpose.</p>
<p>Shay’s Rebellion, the Whiskey Insurrection, Burr’s Rebellion, John Brown’s Raid and other events <a href="https://dx.doi.org/10.2139/ssrn.4591133">were insurrections</a>, even when the goal was not overturning the government.</p>
<p>What these events had in common was that people were trying to prevent the enforcement of laws that were consequences of persuasion, coalition building and voting. Or they were trying to create new laws by force, violence and intimidation. </p>
<p>These words in the amendment declare that those who turn to bullets when ballots fail to provide their desired result cannot be trusted as democratic officials. When applied specifically to the events on Jan. 6, 2021, the amendment declares that those who turn to violence when voting goes against them cannot hold office in a democratic nation.</p>
<h2>A chance at clemency</h2>
<p>The last sentence of Section 3 announces that forgiveness is possible. It says “Congress may by a vote of two-thirds of each House, remove such disability” – the ineligibility of individuals or categories of people to hold office because of having participated in an insurrection or rebellion.</p>
<p>For instance, Congress might remove the restriction on office-holding based on evidence that the insurrectionist was genuinely contrite. It did so for repentant former <a href="https://www.theatlantic.com/magazine/archive/2023/12/james-longstreet-civil-war-confederate-general/675817/">Confederate General James Longstreet</a> .</p>
<p>Or Congress might conclude in retrospect that violence was appropriate, such as against particularly unjust laws. Given their powerful anti-slavery commitments and abolitionist roots, I believe that Republicans in the House and Senate in the late 1850s would almost certainly have allowed people who violently resisted the fugitive slave laws to hold office again. This provision of the amendment says that bullets may substitute for ballots and violence for voting only in very unusual circumstances.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A depiction of the arrest of Jefferson Davis." src="https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=349&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=349&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=349&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=438&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=438&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=438&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">After fleeing Union forces, Confederate president Jefferson Davis, at center climbing into the carriage, was arrested on May 10, 1865.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/jefferson-davis-arrested-taken-to-fortress-monroe-fortress-news-photo/143853354">Buyenlarge/Getty Images</a></span>
</figcaption>
</figure>
<h2>A clear conclusion</h2>
<p>Taken as a whole, the structure of Section 3 leads to the conclusion that Donald Trump is one of those past or present government officials who by violating his oath of allegiance to the constitutional rules has forfeited his right to present and future office.</p>
<p><a href="https://www.cbsnews.com/news/14th-amendment-cases-challenging-trump-eligibility-courts-unknown/">Trump’s supporters say</a> the president is <a href="https://www.washingtonpost.com/politics/2023/10/27/trump-14th-amendment-colorado-minnesota/">neither an “officer under the United States” nor an “officer of the United States”</a> as specified in Section 3. Therefore, they say, he is exempt from its provisions.</p>
<p>But in fact, both common sense and history demonstrate that Trump was an officer, an officer of the United States and an officer under the United States for constitutional purposes. Most people, even lawyers and constitutional scholars like me, do not distinguish between those specific phrases in ordinary discourse. The people who framed and ratified Section 3 saw no distinction. Exhaustive research by Trump supporters has yet to produce a single assertion to the contrary that was made in the immediate aftermath of the Civil War. Yet <a href="https://ssrn.com/abstract=4440157">scholars John Vlahoplus</a> and <a href="https://balkin.blogspot.com/2023/12/additional-evidence-on-section-three.html">Gerard Magliocca</a> are daily producing newspaper and other reports asserting that presidents are covered by Section 3.</p>
<p>Significant numbers of Republicans and Democrats in the House and Senate agreed that <a href="https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump">Donald Trump violated his oath of office</a> immediately before, during and immediately after <a href="https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/15/967878039/7-gop-senators-voted-to-convict-trump-only-1-faces-voters-next-year">the events of Jan. 6, 2021</a>. Most Republican senators who voted against his conviction did so on the grounds that they <a href="https://rollcall.com/2021/02/13/trump-acquitted/">did not have the power to convict</a> a president who was no longer in office. Most of them did not dispute that <a href="https://thehill.com/homenews/senate/536408-how-mcconnell-derailed-trumps-impeachment-trial-before-it-started/">Trump participated in an insurrection</a>. A judge in Colorado also found that Trump “<a href="https://www.npr.org/2023/11/18/1213961050/colorado-judge-finds-trump-engaged-in-insurrection-but-keeps-him-on-ballot">engaged in insurrection</a>,” which was the basis for the state’s Supreme Court ruling barring him from the ballot.</p>
<p>Constitutional democracy is rule by law. Those who have demonstrated their rejection of rule by law may not apply, no matter their popularity. Jefferson Davis participated in an insurrection against the United States in 1861. He was not eligible to become president of the U.S. four years later, or to hold any other state or federal office ever again. If Davis was barred from office, then the conclusion must be that Trump is too – as a man who participated in an insurrection against the United States in 2021.</p><img src="https://counter.theconversation.com/content/219763/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark A. Graber does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Colorado’s Supreme Court has removed Donald Trump from the state’s 2024 presidential ballot. A scholar of constitutional law explains why.Mark A. Graber, University System of Maryland Regents Professor of Law, University of MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2122412023-09-25T12:22:42Z2023-09-25T12:22:42ZThe Supreme Court’s originalists have taken over − here’s how they interpret the Constitution<figure><img src="https://images.theconversation.com/files/549678/original/file-20230921-23-u7gnp7.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C5973%2C3997&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justices who follow originalism dominate in the U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-in-washington-dc-on-april-19-2023-the-news-photo/1251982729?adppopup=true">Stefani Reynolds/AFP via Getty Images</a></span></figcaption></figure><p>Today a majority of U.S. Supreme Court justices are either <a href="https://www.theatlantic.com/ideas/archive/2022/07/roe-overturned-alito-dobbs-originalism/670561/">self-described originalists or strongly lean toward originalism</a>. Yet less than 50 years ago, originalism was considered a <a href="https://www.newyorker.com/magazine/2023/06/12/how-a-fringe-legal-theory-became-a-threat-to-democracy">fringe movement</a>, hardly taken seriously by most legal scholars. </p>
<p>So, what is originalism, and why is it so influential today? </p>
<p>Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that <a href="https://www.npr.org/sections/live-amy-coney-barrett-supreme-court-confirmation/2020/10/13/923215778/barrett-an-originalist-says-meaning-of-constitution-doesn-t-change-over-time">judges must follow the law as written</a> and not merely ignore it or reinterpret it to their liking.</p>
<p>Why, then, aren’t all judges and legal scholars originalists? </p>
<h2>How to read a constitution</h2>
<p>There is no real controversy among judges or politicians about many provisions of the Constitution, for example that the president must be <a href="https://www.law.cornell.edu/constitution/articleii#section1">at least 35 years old</a> or that <a href="https://www.law.cornell.edu/constitution/articlei#section3">each state gets exactly two senators</a>. </p>
<p>But the challenge arises with certain passages in the Constitution – for example, the <a href="https://www.law.cornell.edu/constitution/fifth_amendment">Fifth Amendment guarantee of “due process</a>,” that is, the right to some sort of legal procedure when the government attempts to deprive someone of “life, liberty or property,” or the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">14th Amendment’s principle of “equal protection of the laws.”</a> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Nine people in black robes, sitting in two rows against a red curtain." src="https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A majority of these justices embrace originalism to a greater or lesser degree.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243793662?adppopup=true">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<p>What these have in common is that they are written in vague, open-ended language, with no concrete guidance for interpreting the law. Few if any people would deny that all Americans are entitled to the equal protection of the law. But what exactly does that mean?</p>
<p>Does a law providing for marriage only between a man and a woman violate equal protection, because it <a href="https://www.oyez.org/cases/2014/14-556">excludes gay marriages</a>? Does a law that prohibits bigamy violate equal protection, since it excludes plural marriages? How is a judge to decide, given the vagueness of the text?</p>
<p>It is here in these moments that the originalists and their critics part ways. </p>
<p>For the critics, the only way to interpret the abstract principles such as “due process” or “equal protection” is to look to the overall values and purpose of the Constitution as well as evolving societal values – after all, the very words “due” and “equal” are value terms. </p>
<p>When the Constitution was written, for example, only men were eligible for public office. Thus, the Constitution uses “he” 26 times, in reference to the president, vice president, citizens and others, and never uses “she.” Do these rules now apply only to males? </p>
<p>Of course not. </p>
<p><a href="https://www.archives.gov/milestone-documents/constitution">When the Constitution was written</a>, it was assumed that the sexes had separate spheres. Men belonged in politics, women to the domestic sphere. When that fundamental value judgment shifted radically in the 20th century – as expressed in <a href="https://www.law.cornell.edu/constitution/amendmentxix">the 19th Amendment giving women the vote</a> – it meant that the Constitution had to be read in a new way so that “he” is now interpreted as inclusive.</p>
<h2>Flexible originalism</h2>
<p>Now compare the equal protection clause and its application to sexual orientation.</p>
<p>For the originalist, the 14th Amendment guarantee of equal protection was clearly not intended to protect gay rights, given that <a href="https://en.wikisource.org/wiki/Bowers_v._Hardwick">sodomy was a crime at the time</a>. For the non-originalist, societal values have changed radically on this issue, so they believe that now the Constitution should be read in a new way, such that equal protection extends to sexual orientation as well.</p>
<p>For the originalist, allowing such interpretive freedom is to abandon the Constitution altogether. </p>
<p>Yet, <a href="https://scholar.google.com/citations?user=YLNOvJEAAAAJ&hl=en">as a scholar of law and philosophy</a>, I believe that flexible interpretation was the original intention of the framers. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white haired man in 18th century dress - black coat and white shirt." src="https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=901&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=901&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=901&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1132&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1132&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1132&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Future President James Madison wrote that laws may not have a determinate meaning until they are tested by experience.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/JAMESMADISON/16a5bb98eee6da11af9f0014c2589dfb/photo?Query=James%20Madison%20president&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=701&currentItemNo=0&vs=true">AP Photo</a></span>
</figcaption>
</figure>
<p>James Madison, for example, wrote in <a href="https://guides.loc.gov/federalist-papers/text-31-40#s-lg-box-wrapper-25493391">Federalist 37</a> – part of <a href="https://guides.loc.gov/federalist-papers/full-text">a collection of essays</a> by Madison, Alexander Hamilton and John Jay endorsing adoption of the Constitution – that all new laws will always be “more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” </p>
<p>That is, the meaning of these phrases are not fixed at the time of the passage of the Constitution. That meaning is only “liquidated,” that is, made determinate, in light of future experience involving debate that Madison called “particular discussions” and judicial decisions that he called “adjudications.” </p>
<p>Laws, for Madison, may not have a determinate meaning until they are tested by experience: Just what level of process is “due,” and what does “equality” require? </p>
<p>Hence, in Madison’s view, faithfulness to the original understanding actually requires that laws be interpreted in light of changing values and new circumstances. Principles in the Constitution like “due process” and “equal protection” were deliberately left vague and open-ended precisely so they could evolve in the future. </p>
<p>Ironically, I believe, it is the non-originalists who can claim to be the true originalists. </p>
<p>Why then is originalism so influential? The answer is that the <a href="https://historynewsnetwork.org/article/162099">movement arose in the 1970s and 1980s among conservatives</a>, in response to the liberal decisions of the Supreme Court headed by Chief Justice Earl Warren. Originalism began not as a neutral theory of interpretation but as a <a href="https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1499&context=faculty_publications">rallying cry for conservatives</a>. It is no surprise that the originalists on today’s Supreme Court are also the conservatives.</p>
<p>The central and plausible core of originalism is the idea that judges should not impose their own personal values on the Constitution. But the real debate, I believe, is not about originalism versus the freedom to ignore the Constitution, but rather it is about just what the true, original meaning of the Constitution is.</p><img src="https://counter.theconversation.com/content/212241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Whitley R.P. Kaufman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Only 50 years ago, originalism was considered a fringe movement, hardly taken seriously. Now its adherents dominate the Supreme Court.Whitley R.P. Kaufman, Professor of Philosophy, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2116522023-08-18T12:38:34Z2023-08-18T12:38:34ZGeorgia indictment and post-Civil War history make it clear: Trump’s actions have already disqualified him from the presidency<figure><img src="https://images.theconversation.com/files/543344/original/file-20230817-17-pfm7di.jpeg?ixlib=rb-1.1.0&rect=0%2C24%2C8192%2C5420&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump may be barred from holding public office due to a constitutional amendment disqualifying those who have taken part in 'insurrection or rebellion.'</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-looks-on-during-the-pro-am-news-photo/1605522075?adppopup=true">Mike Stobe/Getty Images</a></span></figcaption></figure><p>After three indictments of former President Donald Trump, <a href="https://apnews.com/article/trump-georgia-election-investigation-grand-jury-willis-d39562cedfc60d64948708de1b011ed3">the fourth one in Georgia</a> came not as a surprise but as a powerful exposition of the scope of Trump’s efforts to remain in power despite losing the 2020 presidential election.</p>
<p>New <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751">conservative legal scholarship</a> spells out how and why those actions – which were observed by the public over many months – disqualify Trump from serving in the presidency ever again. And our read of the Georgia indictment, <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">as longtime</a> <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">lawyers ourselves</a>, shows why and how that disqualification can be put into effect.</p>
<p>The key to all of this is the <a href="https://www.archives.gov/milestone-documents/14th-amendment">14th Amendment to the Constitution</a>, which states that “No person shall … hold any office, under the United States … who, having previously taken an oath … 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.” Trump took that oath at his inauguration on Jan. 20, 2017.</p>
<p>Both Trump’s Georgia indictment, and his federal indictment in Washington, D.C., cite largely public information – and some newly unearthed material – to spell out exactly how he engaged in efforts to rebel against the Constitution, and sought and gave aid and comfort to others who also did so.</p>
<p>Legal scholars William Baude and Michael Stokes Paulsen, <a href="https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html">conservatives themselves and members of the conservative Federalist Society</a>, have recently published a paper declaring that under the 14th Amendment, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751">Trump’s actions render him ineligible to hold office</a>. </p>
<p>We believe the Georgia indictment provides even more detail than the earlier federal one about how Trump’s actions have already disqualified him from office, and shows a way to keep him off the ballot in 2024.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a dark jacket standing at a lectern that bears a seal that says 'District Attorney' across the top." src="https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543321/original/file-20230817-19-cs4pru.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fulton County District Attorney Fani Willis, center, during a news conference, Aug. 14, 2023, in Atlanta, after the release of her indictment of former President Donald Trump and 18 others.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionInvestigation/bc69a90009144346b39126bfd0c10cc0/photo?Query=Fani%20Willis&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=now-30d&totalCount=22&currentItemNo=13">AP Photo/John Bazemore</a></span>
</figcaption>
</figure>
<h2>Disqualification is automatic</h2>
<p>Trump’s supporters might argue that disqualifying him would be unfair without a trial and conviction on the <a href="https://www.nytimes.com/interactive/2023/08/01/us/politics/trump-jan-6-indictment-2020-election-annotated.html">Jan. 6 indictment</a>, and perhaps the Georgia charges.</p>
<p>But Baude and Paulsen, using <a href="https://constitutioncenter.org/the-constitution/white-papers/on-originalism-in-constitutional-interpretation#:%7E:text=Originalism%20is%20a%20theory%20of,time%20that%20it%20became%20law.">originalist interpretation</a> – the interpretive theory of choice of the powerful Federalist Society and Trump’s conservative court appointees, which gives full <a href="https://fedsoc.org/federalist-society-review-new/originalism-in-a-nutshell">meaning to the actual, original text</a> of the Constitution – demonstrate that no legal proceeding is required. They say disqualification is automatic, or what’s known in the legal world as “self-executing.” </p>
<p>Recent public comments from <a href="https://news.yahoo.com/under-14th-amendment-trump-doesnt-030240893.html">liberal constitutional scholar Laurence Tribe</a> and conservative jurist and former federal judge Michael Luttig – who has characterized the events before, during and since Jan. 6 as Trump’s <a href="https://www.pbs.org/newshour/show/conservative-retired-judge-says-trump-corroded-and-corrupted-american-democracy">“declared war on American democracy”</a> – suggest an emerging bipartisan consensus supporting Baude and Paulsen. </p>
<h2>Backed by history</h2>
<p>This is not a theoretical bit of technical law. <a href="https://deliverypdf.ssrn.com/delivery.php?ID=087089099092100125002019124001115005018043040037001065095010010113091109108026088067002010036056019123016098109000090102077021104087070023007099031023071031021099004020076113014125085119124125071125107091111102094011126007081093068022005077076106098&EXT=pdf&INDEX=TRUE">This provision of the 14th Amendment</a> was, in fact, extensively used after the Civil War to <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm#:%7E:text=It%20banned%20those%20who%20%E2%80%9Cengaged,of%20the%20House%20and%20Senate.">keep former Confederate leaders from serving</a> in the federal government, without being tried or convicted of any crime. </p>
<p><a href="https://sites.duke.edu/lawfire/2020/07/11/were-confederate-soldiers-tried-for-treason/">Few former Confederates were charged with crimes</a> associated with secession, rebellion and open war against the United States. And most were pardoned by <a href="https://www.nytimes.com/1865/05/30/archives/president-johnsons-amnesty-proclamation-restoration-to-rights-of.html">sweeping orders</a> <a href="https://edu.lva.virginia.gov/dbva/items/show/149">issued by President Andrew Johnson</a>. </p>
<p>But even though they had no relevant convictions, former Confederates were in fact barred from office in the U.S. </p>
<p>In December 1865, several who had neither been convicted nor been pardoned tried to claim seats in the U.S. House of Representatives. But the House clerk <a href="https://www.zinnedproject.org/news/tdih/confederates-blocked-from-congress/">refused to swear them in</a>. It took an act of Congress – <a href="https://heritagelib.org/amnesty-act-of-1872">the 1872 Amnesty Act – </a> to later restore their office-holding rights.</p>
<p>There is no requirement in the Constitution that the disqualification be imposed <a href="https://electionlawblog.org/?p=138047">by any specific process</a> – only that it applies to people who take certain actions against the Constitution.</p>
<h2>A path through the states</h2>
<p>For the U.S. in 2023, we believe the most realistic avenue to enforce the 14th Amendment’s ban on a second Trump presidency is through state election authorities. That’s where the Georgia indictment comes in.</p>
<p>State election officials could themselves, or in response to a petition of a citizen of that state, refuse Trump a place on the 2024 ballot because of the automatic 14th Amendment disqualification. </p>
<p>Trump would certainly challenge the move in federal court. But the recent disqualification proceedings against <a href="https://www.abajournal.com/web/article/second-loss-for-madison-cawthorn-4th-circuit-revives-claim-that-he-is-insurrectionist-unfit-for-office">former North Carolina Congressman Madison Cawthorn</a> provides <a href="https://www.ca4.uscourts.gov/opinions/221251.p.pdf">a road map and binding legal precedent</a> affirming the 14th Amendment as a valid legal ground for disqualification of a candidate for federal office.</p>
<p>The Georgia indictment against Trump and allies exhaustively details extensive <a href="https://www.washingtonpost.com/national-security/2023/08/14/indictment-document-trump-georgia/">acts of lying, manipulation and threats</a> against Georgia officials, as well as a fraudulent fake elector scheme to illegally subvert the legitimate 2020 Georgia presidential vote tally and <a href="https://www.scribd.com/document/665036274/Trump-Indictment-Georgia-081423#">resulting elector certification</a>.</p>
<p>Trump’s failure to accomplish what is tantamount to a coup in Georgia and other swing states <a href="https://www.washingtonpost.com/national-security/2023/08/01/indictment-document-trump-jan-6-pdf/">set the stage for the violent insurrection</a> <a href="https://www.washingtonpost.com/january-6-capitol-riot/">of Jan. 6, 2021</a>, that sought to achieve the same result – Trump’s fraudulent installation to a second term. </p>
<figure class="align-Center zoomable">
<a href="https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A sample ballot from Georgia in 2020, which includes the names of candidates Joe Biden and Donald Trump." src="https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=445&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=445&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=445&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=559&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=559&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543335/original/file-20230817-44496-65q9rt.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=559&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The top of a sample Georgia ballot from 2020 – will Trump be able to get on the 2024 ballot?</span>
<span class="attribution"><a class="source" href="https://www.dekalbcountyga.gov/sites/default/files/users/user304/2020-11-03%20Composite%20Sample%20Ballot%20rev%203.pdf">DeKalb County, Georgia</a></span>
</figcaption>
</figure>
<p>In fact, the Georgia scheme is <a href="https://www.washingtonpost.com/national-security/2023/08/01/indictment-document-trump-jan-6-pdf/">included in Special Counsel Jack Smith’s federal indictment</a> as one of the methods and means in “aid” of the larger Jan. 6 federal conspiracy against the United States. </p>
<p><a href="https://deliverypdf.ssrn.com/delivery.php?ID=087089099092100125002019124001115005018043040037001065095010010113091109108026088067002010036056019123016098109000090102077021104087070023007099031023071031021099004020076113014125085119124125071125107091111102094011126007081093068022005077076106098&EXT=pdf&INDEX=TRUE">Baude and Paulsen acknowledge</a> that “insurrection and rebellion” are traditionally associated with forced or violent opposition. But we see the broader set of actions by Trump and his allies to subvert the Constitution – the Georgia vote count and fake elector scheme included – as part of a political coup d'etat. It was a rebellion. </p>
<h2>Georgia as a bellwether</h2>
<p>So what makes the Georgia scheme and indictment compelling for purposes of disqualifying Trump from the 2024 Georgia ballot? </p>
<p>There are minimally six aspects <a href="https://www.washingtonpost.com/national-security/2023/08/14/indictment-document-trump-georgia/">revealed in the latest indictment</a> that we believe justify Georgia – under Section 3 of the post-Civil War Fourteenth Amendment – keeping Trump off the ballot:</p>
<ol>
<li><p>The racketeering scheme was a multifaceted attempt to subvert Georgia’s own part of the 2020 electoral process; </p></li>
<li><p>The officials on the receiving end of the unsuccessful racketeering scheme were elected and appointed Georgia officials. … </p></li>
<li><p>… whose actions to reject election subversion vindicated their own oaths to uphold the Constitution and laws of the United States as well as Georgia’s; </p></li>
<li><p>Most of these officials were and are Republicans – including Secretary of State <a href="https://www.newsweek.com/brad-raffenspergers-two-sentence-response-trump-indictment-1819945">Brad Raffensberger</a>, <a href="https://www.npr.org/2023/08/16/1194171929/donald-trump-georgia-indictment-brian-kemp-republicans#:%7E:text=Kemp%20also%20testified%20under%20subpoena,against%20Trump%20and%2018%20others.">Governor Brian Kemp</a> and <a href="https://thehill.com/regulation/court-battles/4152605-georgia-lieutenant-governor-describes-testimony-to-fulton-county-grand-jury-as-very-serious/">former Lt. Governor Geoff Duncan</a>; </p></li>
<li><p>These officials will, in 2024 as in 2020, <a href="https://ballotpedia.org/Electoral_systems_in_Georgia">collectively determine who is qualified</a> to be on Georgia’s presidential ballot; and </p></li>
<li><p><a href="https://www.nytimes.com/2023/08/16/us/politics/trumps-indictment-georgia-2024.html">These officials’ testimony</a>, and related evidence, is at the heart of the proof of the Georgia racketeering case against Trump. </p></li>
</ol>
<p>In other words, the evidence to convict Trump in the Georgia racketeering case is the same evidence, coming from the same Georgia officials, who will be involved in determining whether, under the 14th Amendment, Trump is qualified to be on the 2024 presidential ballot – or not. </p>
<p>Little if any additional evidence or proceedings are needed. The Georgia officials already hold that evidence, because much of it comes from them. They don’t need a trial to establish what they already know. </p>
<p>How could Trump avoid this happening? A quick trial date in Atlanta with an acquittal on all counts might do it, but this runs counter to his strategy to delay all the pending criminal cases until after the 2024 election. </p>
<p>With no preelection trial, there will likely be no Trump on the 2024 Georgia ballot, and no chance for him to win Georgia’s 2024 electoral college votes. </p>
<p>Once Georgia bars him, other states may follow. That would leave Trump with no way to credibly appear on the ballot in all 50 states, giving him no chance to win the electoral votes required to claim the White House.</p><img src="https://counter.theconversation.com/content/211652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>US law actually bars former President Donald Trump from holding office ever again. The recent Georgia indictment of Trump helps make the case.Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoThomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1968512022-12-19T21:11:18Z2022-12-19T21:11:18ZEven if Jan. 6 referrals turn into criminal charges – or convictions – Trump will still be able to run in 2024 and serve as president if elected<figure><img src="https://images.theconversation.com/files/501993/original/file-20221219-26-noptxz.jpg?ixlib=rb-1.1.0&rect=0%2C190%2C7935%2C5012&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Looming large over proceedings.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-image-of-former-president-donald-trump-is-displayed-as-news-photo/1245731847?phrase=January%206&adppopup=true">Jim Lo Scalzo-Pool/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.washingtonpost.com/national-security/2022/12/19/jan-6-committee-hearings-live-updates/?itid=hp-top-table-main_p001_f001">criminal referral of Donald Trump to the Department of Justice</a> by a House committee investigating the Jan. 6 attack <a href="https://www.npr.org/2022/12/19/1143415487/the-jan-6-committee-is-about-to-have-its-last-hearing-heres-what-to-expect">is largely symbolic</a> – the panel itself has no power to prosecute any individual.</p>
<p>Nonetheless, the recommendation that Trump be investigated for four potential crimes – obstructing an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement; and inciting, assisting or aiding or comforting an insurrection – raises the prospect of an indictment, or even a conviction, of the former president.</p>
<p>It also poses serious ethical questions, given that Trump has already <a href="https://news.yahoo.com/trump-announces-2024-run-president-015331045.html">announced a 2024 run for the presidency</a>, especially in regards to the referral over his alleged inciting or assisting an insurrection. Indeed, a <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Department of Justice investigation</a> over Trump’s activities during the insurrection is already under way.</p>
<p>But would an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office? </p>
<p>The short answer is no. Here’s why:</p>
<p>The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In <a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Section 1, Clause 5 of Article II</a>, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”</p>
<p>These three requirements – natural-born citizenship, age and residency – are the only specifications set forth in the United States’ founding document.</p>
<h2>Congress has ‘no power to alter’</h2>
<p>Furthermore, the Supreme Court has made clear that constitutionally prescribed qualifications to hold federal office may not be altered or supplemented by either the U.S. Congress or any of the states.</p>
<p>Justices clarified the court’s position in their 1969 <a href="https://www.oyez.org/cases/1968/138">Powell v. McCormack</a> ruling. The case followed the adoption of a resolution by the House of Representatives barring pastor and New York politician <a href="https://history.house.gov/People/Listing/P/POWELL,-Adam-Clayton,-Jr--(P000477)/">Adam Clayton Powell, Jr.</a> from taking his seat in the 90th Congress.</p>
<figure class="align-left ">
<img alt="A button with a man's face on it under the motto 'Keep The Faith, Baby'." src="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=596&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=596&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=596&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=749&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=749&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=749&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Adam Clayton Powell.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/button-promoting-harlem-congressman-adam-clayton-powells-news-photo/534234502?phrase=Clayton%20Powell&adppopup=true">David J. & Janice L. Frent/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>The resolution was not based on Powell’s failure to meet the age, citizenship and residency requirements for House members set forth in the Constitution. Rather, the House found that <a href="https://www.washingtonpost.com/archive/politics/1987/12/15/charges-of-favoritism-tests-of-credibility-at-house-ethics-panel/b878ba60-348e-471f-87aa-ded06cac0e4b/">Powell had diverted congressional funds and made false reports</a> about certain currency transactions.</p>
<p>When Powell sued to take his seat, the Supreme Court invalidated the House’s resolution on grounds that it added to the constitutionally specified qualifications for Powell to hold office. <a href="https://supreme.justia.com/cases/federal/us/395/486/">In the majority opinion</a>, the court held that: “Congress has no power to alter the qualifications in the text of the Constitution.”</p>
<p>For the same reason, no limitation could now be placed on Trump’s candidacy. Nor could he be barred from taking office if he were to be indicted or even convicted.</p>
<h2>But in case of insurrection …</h2>
<p>The Constitution includes no qualification regarding those conditions – with one significant exception. <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment</a> disqualifies any person from holding federal office “who, having previously taken an oath … 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.” </p>
<p>The reason why this matters is the Department of Justice is <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">currently investigating</a> Trump for his activities related to the <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Jan. 6 insurrection</a> at the Capitol. And one of the four criminal referrals made by the Jan. 6 House committee was over Trump’s alleged role in inciting, assisting or aiding and comforting an insurrection.</p>
<p>Under the provisions of the 14th Amendment, Congress is authorized to pass laws to enforce its provisions. And in February 2021, one Democratic Congressman proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/1405">House Bill 1405</a>, providing for a “cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States.”</p>
<p>Even in the event of Trump being found to have participated “in insurrection or rebellion,” he might conceivably argue that he is exempt from Section 3 for a number of reasons. The 14th Amendment does not specifically refer to the presidency and it is not “self-executing” – that is, it needs subsequent legislation to enforce it. Trump could also point to the fact that Congress enacted an <a href="https://www.bostonglobe.com/2022/03/11/opinion/confederate-amnesty-act-must-not-insulate-jan-6-insurrectionists/">Amnesty Act in 1872</a> that lifted the ban on office holding for officials from many former Confederate states.</p>
<p>He might also argue that his activities on and before Jan. 6 did not constitute an “insurrection” as it is understood by the wording of the amendment. There are few judicial precedents that interpret Section 3, and as such its application in modern times remains unclear. So even if House Bill 1405 were adopted, it is not clear whether it would be enough to disqualify Trump from serving as president again. </p>
<h2>Running from behind bars</h2>
<p>Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves. </p>
<p>History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member <a href="https://history.house.gov/Historical-Highlights/1800-1850/The-life-of-Representative-Matthew-Lyon-of-Vermont-and-Kentucky/">Matthew Lyon was elected to Congress</a> from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.</p>
<p><a href="https://aflcio.org/about/history/labor-history-people/eugene-debs">Eugene Debs</a>, founder of the Socialist Party of America, <a href="https://www.washingtonpost.com/dc-md-va/2019/09/22/socialist-who-ran-president-prison-won-nearly-million-votes/">ran for president in 1920</a> while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected. </p>
<figure class="align-right ">
<img alt="A black and white photo shows a man in a suit and long coat standing in front of a boat." src="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=845&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=845&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=845&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">American socialist Eugene Debs ran for office from prison.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/eugene-v-debs-american-socialist-organized-social-news-photo/515948158?phrase=Eugene%20Debs&adppopup=true">Bettmann / Getty Images</a></span>
</figcaption>
</figure>
<p>And controversial politician and conspiracy theorist <a href="https://www.nytimes.com/2019/02/13/obituaries/lyndon-larouche-dead.html">Lyndon Larouche also ran for president</a> from a jail cell in 1992. </p>
<h2>A prison cell as the Oval Office?</h2>
<p>Several provisions within the Constitution offer alternatives that could be used to disqualify a president under indictment or in prison.</p>
<p>The <a href="https://constitution.congress.gov/browse/essay/amdt25-1/ALDE_00001013/#:%7E:text=Twenty%2DFifth%20Amendment%2C%20Section%201,Vice%20President%20shall%20become%20President.">25th Amendment</a> allows the vice president and a majority of the cabinet to suspend the president from office if they conclude that the president is incapable of fulfilling his duties.</p>
<p>The amendment states that the removal process may be invoked “if the President is unable to discharge the powers and duties of his office.”</p>
<p>It was proposed and ratified to address what would happen should a president be incapacitated due to health issues. But the language is broad and some legal scholars believe it could be invoked if someone is deemed incapacitated or incapable for other reasons, such as incarceration.</p>
<p>To be sure, a president behind bars could challenge the conclusion that he or she was incapable from discharging the duties simply because they were in prison. </p>
<p>But ultimately the amendment leaves any such dispute to Congress to decide, and it may suspend the President from office by a two-thirds vote.</p>
<p>Indeed, it is not clear that a president could not effectively execute the duties of office from prison, since the Constitution imposes no requirements that the executive appear in any specific location. The jail cell could, theoretically, serve as the new Oval Office. Of course, managing a presidency from a prison cell would in itself raise myriad issues in regards the handling of sensitive or classified documents.</p>
<p>Finally, if Trump were convicted and yet prevail in his quest for the presidency in 2024, Congress might choose to impeach him and remove him from office. <a href="https://constitution.congress.gov/browse/essay/artII-S4-1-1/ALDE_00000282/#:%7E:text=Article%20II%2C%20Section%204%3A,other%20high%20Crimes%20and%20Misdemeanors.">Article II, Section 4</a> of the Constitution allows impeachment for “treason, bribery, and high crimes and misdemeanors.”</p>
<p>Whether that language would apply to Trump for indictments or convictions arising from his previous term or business dealings outside of office would be a question for Congress to decide. The precise meaning of “<a href="https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/">high crimes and misdemeanors</a>” is unclear, and the courts are unlikely to second-guess the House in bringing an impeachment proceeding. For sure, impeachment would remain an option – but it might be an unlikely one if Republicans maintained their majority in the House in 2024 and 2026.</p>
<p><em>Editor’s note: This is an updated version of an <a href="https://theconversation.com/no-an-indictment-wouldnt-end-trumps-run-for-the-presidency-he-could-even-campaign-or-serve-from-a-jail-cell-194425">article originally published</a> on Nov. 16, 2022.</em></p><img src="https://counter.theconversation.com/content/196851/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A House panel made four criminal referrals in relation to Donald Trump’s alleged role in the attack on the Capitol. Convictions might make him an unpalatable candidate but wouldn’t bar him from running.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1950852022-11-23T13:18:50Z2022-11-23T13:18:50ZSuspect in the Colorado LGBTQ shootings faces hate crimes charges – what exactly are they?<figure><img src="https://images.theconversation.com/files/496850/original/file-20221122-26-o8xg8i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Club Q co-owners Nic Grzecka, left, and Matthew Haynes listen during a police news conference on Nov. 21, 2022, in Colorado Springs, Colo. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/club-q-co-owners-nic-grzecka-and-matthew-haynes-listen-to-news-photo/1443386018?phrase=club%20q&adppopup=true">Scott Olson/Getty Images</a></span></figcaption></figure><p>The 22-year-old suspected shooter at a gay night club in Colorado Springs, Colorado, who allegedly killed five and injured dozens <a href="https://apnews.com/article/shootings-colorado-gun-politics-springs-7f079c7feebc32cc8ad46f2724844c18">faces five counts of murder and hate crimes</a> charges.</p>
<p>Hate crimes are known as <a href="https://www.nytimes.com/2022/11/21/us/hate-crime-laws-colorado-shooting.html?partner=slack&smid=sl-share">“bias-motivated” crimes in Colorado</a>. The charges against the shooter are still preliminary, although <a href="https://www.usatoday.com/story/news/nation/2022/11/21/colorado-springs-nightclub-shooting-lgbtq-community/10745611002/">Colorado Springs Mayor John Suthers said</a> the attack “has all the trappings of a hate crime.”</p>
<p>The mass shooting rekindled memories of the 2016 massacre at <a href="https://www.usnews.com/news/us/articles/2022-11-20/factbox-mass-shootings-in-the-u-s-from-club-q-to-pulse-nightclub">Pulse nightclub in Orlando, Florida</a>, that killed 49 people.</p>
<p>Hate crimes are <a href="https://www.voanews.com/a/us-hate-crimes-rise-during-first-half-of-2022-/6713791.html">rising across the U.S.</a>, but officials often resist the quick classification of incidents as a hate crime. Hate crimes have unique legal requirements. And even when police and prosecutors believe the elements of a hate crime are present, such crimes can be difficult to prove in court. </p>
<h2>What is a hate crime?</h2>
<p>I have studied <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/bell-jeannine.shtml">hate crime and police for over 20 years</a>.</p>
<p>Hate crimes are crimes motivated by bias on the basis of race, religion, sexual orientation or ethnicity. In some states, gender, age and gender identity are also included. Hate crime laws have been passed by 48 states and the federal government since the 1980s, when activists first began to <a href="https://www.jstor.org/stable/1389346?seq=1">press state legislatures to recognize the role of bias in violence against minority groups</a>.</p>
<p>In order to be charged as a hate crime, attacks – whether assault, killings or vandalism – must be directed at individuals because of the prohibited biases. Hate crime laws, in other words, punish motive. </p>
<p>The prosecutor must convince the judge or jury that the victim was targeted because of their race, religion, sexual orientation or other protected characteristic. </p>
<p>If the defendant is found to have acted with bias motivation, hate crime charges often add an additional penalty to the underlying charge. Charging people with a hate crime, then, <a href="https://jhs.press.gonzaga.edu/articles/abstract/10.33972/jhs.34/">presents additional layers of complexity</a> to what may otherwise be a straightforward case for prosecutors. Bias motivation can be hard to prove, and prosecutors can be reluctant to <a href="https://doi.org/10.1108/S1059-433720210000085003">take cases that that they may not win</a> in court.</p>
<p>It can and does happen, though. In June 2020, Indiana resident <a href="https://www.justice.gov/usao-sdin/pr/indianapolis-man-sentenced-making-racially-motivated-threats-toward-neighbor">Shepherd Hoehn</a> placed a burning cross and a sign with racial slurs and epithets facing the construction site where his new neighbor, who is Black, was building a house. </p>
<p>Hoehn was charged with and later pleaded guilty to <a href="https://www.justice.gov/opa/pr/indiana-man-pleads-guilty-hate-crime-making-racially-charged-motivated-threats-toward-black">federal hate crime charges</a> in Indiana. A few months later, Maurice Diggins was convicted by a federal jury of a 2018 hate crime for breaking the jaw of a Sudanese man in Maine <a href="https://www.justice.gov/opa/pr/maine-man-sentenced-federal-hate-crime-convictions">while shouting racial epithets</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Video still of young blond man in prison jumpsuit surrounded by armed guards" src="https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=345&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=345&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=345&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=433&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=433&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390660/original/file-20210319-23-4bba6g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=433&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Dylann Roof, who killed nine worshippers at a Black church in South Carolina in 2015, was convicted of 33 charges, including hate crimes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-image-from-the-video-uplink-from-the-detention-news-photo/477782304?adppopup=true">Grace Beahm-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>How to charge a hate crime</h2>
<p>The first use of the term “hate crime” in federal legislation was the <a href="https://www.govtrack.us/congress/bills/101/hr1048">Hate Crimes Statistics Act of 1990</a>. This was not a criminal statute but rather a data-gathering requirement that mandated that the U.S. attorney general collect information on crimes that “evidenced prejudice based on race, religion, sexual orientation, or ethnicity.” </p>
<p>Soon, states began passing their own laws recognizing bias crimes. But hate crime legislation has not led to many charges and convictions.</p>
<p>Law enforcement officers struggle to identify hate crime and prosecute offenders. Even though 48 states have hate crime laws, 88% of law enforcement agencies, including local and state police departments, reported to the FBI that not a single hate crime <a href="https://www.axios.com/2022/03/19/doj-police-departments-decline-report-hate-crimes">had occurred in their jurisdiction</a>in 2020. </p>
<p>I’ve found that police departments are rarely organized in a way that allows them to develop the <a href="https://doi.org/10.1177/0002764207306054">expertise necessary to effectively investigate hate crimes</a>. When police departments have specialized police units and prosecutors who are <a href="https://nyupress.org/9780814798973/policing-hatred/">committed to taking on hate crime</a>, they can develop the routines that allow them to investigate hate crime in a manner that supports victims. </p>
<p>In the late 1990s, I studied a specialized police hate crime unit in a city I called, for the purposes of anonymity, “Center City.” My <a href="https://nyupress.org/9780814798973/policing-hatred/">book revealed that those detectives</a> could distinguish non-hate crimes – for instance, when the perpetrator angrily used the n-word in a fight – from cases that are truly hate crimes, as when the perpetrator used it during a targeted attack on a Black person. </p>
<p>Without the right training and organizational structure, officers are unclear about common markers of bias motivation, and tend to assume that they must go to extraordinary lengths to figure out why suspects committed the crime. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Fire inspector walks through ruins of a charred building, looking at the ground" src="https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390661/original/file-20210319-19-319ekc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">When arson targets a temple, mosque or cultural center, it may be investigated as a hate crime.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/houston-fire-department-arson-investigator-inspects-the-news-photo/463382360?adppopup=true">Aaron M. Sprecher/AFP via Getty Images</a></span>
</figcaption>
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<h2>Limits of the law</h2>
<p>Advocates for hate crime victims maintain that <a href="https://www.propublica.org/article/hate-crime-training-for-police-is-often-inadequate-sometimes-nonexistent">police and prosecutors can do much more</a> to identify and punish hate crimes. </p>
<p>Empirical evidence supports their claims. The FBI’s 2019 report contains <a href="https://ucr.fbi.gov/hate-crime/2019/resource-pages/hate-crime-summary#:%7E:text=Of%20the%205,512%20hate%20crime%20offenses%20classified%20as,commercial%20sex%20acts%20were%20reported%20as%20hate%20crimes.">8,559 bias crimes reported by law enforcement agencies</a>. But in the National Crime Victimization Survey, victims say that they experienced, on average, <a href="https://www.bjs.gov/content/pub/pdf/hcs1317pp.pdf">more than 200,000 hate crimes each year</a>. This suggests that police are missing many hate crimes that have occurred. </p>
<p><a href="https://theconversation.com/kids-perceptions-of-police-fall-as-they-age-for-black-children-the-decline-starts-earlier-and-is-constant-145511">Distrust of police</a>, especially in Black communities, may dissuade minorities from even calling the police when they are victimized by a hate crime for fear they could also become <a href="https://theconversation.com/police-shootings-and-race-in-america-five-essential-reads-65847">victims of police violence</a>. </p>
<p>All this means that perpetrators of hate crimes may not be caught and can re-offend, further victimizing communities that are meant to be protected by hate crime laws.</p>
<p>Hate crime laws reflect American ideals of fairness, justice and equity. But if crimes motivated by bias aren’t reported, well investigated, charged or brought to trial, it matters little what state law says.</p>
<p><em>Editor’s note: This story incorporates material from an earlier story <a href="https://theconversation.com/what-is-a-hate-crime-the-narrow-legal-definition-makes-it-hard-to-charge-and-convict-157488">published on March 19, 2021</a>.</em></p><img src="https://counter.theconversation.com/content/195085/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeannine Bell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bias-motivated attacks became a distinct crime in the 1980s. But police investigate only a fraction of the roughly 200,000 hate crimes reported each year – and even fewer ever make it to court.Jeannine Bell, Professor of Law, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1944252022-11-16T13:29:52Z2022-11-16T13:29:52ZNo, an indictment wouldn’t end Trump’s run for the presidency – he could even campaign or serve from a jail cell<figure><img src="https://images.theconversation.com/files/495552/original/file-20221116-21-l1o2i3.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C2000%2C1320&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former US President Donald Trump speaks in Palm Beach, Florida, on Nov.15, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-speaks-at-the-mar-a-lago-news-photo/1244812333?phrase=trump&adppopup=true">Photo by Alon Skuy/AFP via Getty Images.</a></span></figcaption></figure><p>Donald Trump <a href="https://news.yahoo.com/trump-announces-2024-run-president-015331045.html">announced his 2024 run for the presidency on Nov. 15</a>. In his address he railed against what he perceived as the “persecution” of himself and his family, but made scant mention of his legal woes.</p>
<p>Confirmation of Trump’s White House bid comes at a curious time – a week after a <a href="https://www.politico.com/news/2022/11/09/2022-election-results-analysis-and-takeaways-00065878">lackluster Republican midterm performance</a> that <a href="https://www.nbcnews.com/politics/2022-election/trump-hurt-republicans-2022-elections-numbers-point-yes-rcna56928">many blamed on him</a>. Moreover, it comes as the former president faces <a href="https://www.vox.com/policy-and-politics/23306941/donald-trump-crimes-criminal-investigation-mar-a-lago-fbi-january-6-election-georgia-new-york">multiple criminal investigations</a> over everything from his <a href="https://www.theguardian.com/us-news/2022/nov/14/donald-trump-handled-records-marked-classified-after-presidency-court-filing-alleges">handling of classified documents</a>, to allegations of <a href="https://theconversation.com/trump-properties-arent-the-only-ones-to-see-wild-valuations-putting-a-price-on-real-estate-isnt-straightforward-191228">falsifying the value of New York properties</a>. There is also the not-so-small matter of a <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">Justice Department investigation</a> into the Jan. 6 storming of the Capitol.</p>
<p>The announcement has led some to speculate that Trump may be hoping that becoming a presidential candidate will in some way <a href="https://www.theguardian.com/us-news/2022/jul/05/trump-2024-run-us-elections-prosecution">shield him from prosecution</a>.</p>
<p>So, does an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office? </p>
<p>The short answer is no. Here’s why:</p>
<p>The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In <a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Section 1, Clause 5 of Article II</a>, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”</p>
<p>These three requirements – natural-born citizenship, age, and residency – are the only specifications set forth in the United States’ founding document.</p>
<h2>Congress has ‘no power to alter’</h2>
<p>Furthermore, the Supreme Court has made clear that constitutionally prescribed qualifications to hold federal office may not be altered or supplemented by either the U.S. Congress or any of the states.</p>
<p>Justices clarified the court’s position in their 1969 <a href="https://www.oyez.org/cases/1968/138">Powell v. McCormack</a> ruling. The case followed the adoption of a resolution by the House of Representatives barring pastor and New York politician <a href="https://history.house.gov/People/Listing/P/POWELL,-Adam-Clayton,-Jr--(P000477)/">Adam Clayton Powell, Jr.</a> from taking his seat in the 90th Congress.</p>
<figure class="align-left ">
<img alt="A button with a man's face on it under the motto 'Keep The Faith, Baby'." src="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=596&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=596&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=596&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=749&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=749&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=749&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Adam Clayton Powell.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/button-promoting-harlem-congressman-adam-clayton-powells-news-photo/534234502?phrase=Clayton%20Powell&adppopup=true">David J. & Janice L. Frent/Corbis via Getty Images</a></span>
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</figure>
<p>The resolution was not based on Powell’s failure to meet the age, citizenship and residency requirements for House members set forth in the Constitution. Rather, the House found that <a href="https://www.washingtonpost.com/archive/politics/1987/12/15/charges-of-favoritism-tests-of-credibility-at-house-ethics-panel/b878ba60-348e-471f-87aa-ded06cac0e4b/">Powell had diverted Congressional funds and made false reports</a> about certain currency transactions.</p>
<p>When Powell sued to take his seat, the Supreme Court invalidated the House’s resolution on grounds that it added to the constitutionally specified qualifications for Powell to hold office. <a href="https://supreme.justia.com/cases/federal/us/395/486/">In the majority opinion</a>, the court held that: “Congress has no power to alter the qualifications in the text of the Constitution.”</p>
<p>For the same reason, no limitation could now be placed on Trump’s candidacy. Nor could he be barred from taking office if he were to be indicted or even convicted.</p>
<h2>But in case of insurrection…</h2>
<p>The Constitution includes no qualification regarding those conditions – with one significant exception. <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment</a> disqualifies any person from holding federal office “who, having previously taken an oath … 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.” </p>
<p>The reason why this matters is the Department of Justice is <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">currently investigating</a> Trump for his activities related to the <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Jan. 6 insurrection</a> at the Capitol.</p>
<p>Under the provisions of the 14th Amendment, Congress is authorized to pass laws to enforce its provisions. And in February 2021, one Democratic Congressman proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/1405">House Bill 1405</a>, providing for a “cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States.”</p>
<p>Even in the event of Trump being found to have participated “in insurrection or rebellion,” he might conceivably argue that he is exempt from Section 3 for a number of reasons. The 14th Amendment does not specifically refer to the presidency and it is not “self-executing” – that is, it needs subsequent legislation to enforce it. Trump could also point to the fact that Congress enacted an <a href="https://www.bostonglobe.com/2022/03/11/opinion/confederate-amnesty-act-must-not-insulate-jan-6-insurrectionists/">Amnesty Act in 1872</a> that lifted the ban on office holding for officials from many former Confederate states.</p>
<p>He might also argue that his activities on and before Jan. 6 did not constitute an “insurrection” as it is understood by the wording of the amendment. There are few judicial precedents that interpret Section 3, and as such its application in modern times remains unclear. So even if House Bill 1405 were adopted, it is not clear whether it would be enough to disqualify Trump from serving as president again. </p>
<h2>Running from behind bars</h2>
<p>Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves. </p>
<p>History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member <a href="https://history.house.gov/Historical-Highlights/1800-1850/The-life-of-Representative-Matthew-Lyon-of-Vermont-and-Kentucky/">Matthew Lyon was elected to Congress</a> from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.</p>
<p><a href="https://aflcio.org/about/history/labor-history-people/eugene-debs">Eugene Debs</a>, founder of the Socialist Party of America, <a href="https://www.washingtonpost.com/dc-md-va/2019/09/22/socialist-who-ran-president-prison-won-nearly-million-votes/">ran for president in 1920</a> while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected. </p>
<figure class="align-right ">
<img alt="A black and white photo shows a man in a suit and long coat standing in front of a boat." src="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=845&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=845&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=845&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">American socialist Eugene Debs ran for office from prison.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/eugene-v-debs-american-socialist-organized-social-news-photo/515948158?phrase=Eugene%20Debs&adppopup=true">Bettmann / Getty Images</a></span>
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<p>And controversial politician and conspiracy theorist <a href="https://www.nytimes.com/2019/02/13/obituaries/lyndon-larouche-dead.html">Lyndon Larouche also ran for president</a> from a jail cell in 1992. </p>
<h2>A prison cell as the Oval Office?</h2>
<p>Several provisions within the Constitution offer alternatives that could be used to disqualify a president under indictment or in prison.</p>
<p>The <a href="https://constitution.congress.gov/browse/essay/amdt25-1/ALDE_00001013/#:%7E:text=Twenty%2DFifth%20Amendment%2C%20Section%201,Vice%20President%20shall%20become%20President.">25th Amendment</a> allows the vice president and a majority of the cabinet to suspend the president from office if they conclude that the president is incapable of fulfilling his duties.</p>
<p>The amendment states that the removal process may be invoked “if the President is unable to discharge the powers and duties of his office.”</p>
<p>It was proposed and ratified to address what would happen should a president be incapacitated due to health issues. But the language is broad and some legal scholars believe it could be invoked if someone is deemed incapacitated or incapable for other reasons, such as incarceration.</p>
<p>To be sure, a president behind bars could challenge the conclusion that he or she was incapable from discharging the duties simply because they were in prison. But ultimately the amendment leaves any such dispute to Congress to decide, and it may suspend the President from office by a two-thirds vote.</p>
<p>Indeed, it is not clear that a president could not effectively execute the duties of office from prison, since the Constitution imposes no requirements that the executive appear in any specific location. The jail cell could, theoretically, serve as the new Oval Office.</p>
<p>Finally, if Trump were convicted and yet prevail in his quest for the presidency in 2024, Congress might choose to impeach him and remove him from office. <a href="https://constitution.congress.gov/browse/essay/artII-S4-1-1/ALDE_00000282/#:%7E:text=Article%20II%2C%20Section%204%3A,other%20high%20Crimes%20and%20Misdemeanors.">Article II, Section 4</a> of the Constitution allows impeachment for “treason, bribery, and high crimes and misdemeanors.”</p>
<p>Whether that language would apply to Trump for indictments or convictions arising from his previous term or business dealings outside of office would be a question for Congress to decide. The precise meaning of “<a href="https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/">high crimes and misdemeanors</a>” is unclear, and the courts are unlikely to second-guess the House in bringing an impeachment proceeding. For sure, impeachment would remain an option – but it might be an unlikely one if Republicans maintained their majority in the House in 2024 and 2026.</p><img src="https://counter.theconversation.com/content/194425/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The former president made little mention of his personal legal battles as he announced his bid to retake the White House.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1903132022-11-01T12:48:27Z2022-11-01T12:48:27ZConservative US Supreme Court reconsidering affirmative action, leaving the use of race in college admissions on the brink of extinction<figure><img src="https://images.theconversation.com/files/492555/original/file-20221031-27-pmpisx.jpg?ixlib=rb-1.1.0&rect=185%2C353%2C3808%2C2395&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court in its official portrait on Oct. 7, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243795466?phrase=us%20supreme%20court%20justices&adppopup=true">Olivier Douliery/AFP via Getty Images</a></span></figcaption></figure><p>The U.S. military learned a valuable lesson about race during the Vietnam War: Diversity does not happen without affirmative action.</p>
<p>That helps explain why a <a href="https://thehill.com/opinion/national-security/3699673-military-leaders-affirmative-action-is-a-national-security-imperative/">distinguished group of 35 military officials</a> wrote <a href="https://www.supremecourt.gov/DocketPDF/20/20-1199/232531/20220801183329801_20-1199%20and%2021-707_Brief%20of%20Amici%20Curiae%20Former%20Military%20Leaders.pdf">a brief to the Supreme Court</a> supporting the use of race as a part of college admissions – as the U.S. military has done at its four service academies over the last nearly 50 years.</p>
<p>While the <a href="https://news.bloomberglaw.com/us-law-week/harvard-race-admissions-case-tests-oconnors-25-year-prediction">Supreme Court has agreed in the past</a> that racial diversity on college campuses is an important goal, the problem is just how to achieve that goal without using race as a factor.</p>
<p>In two cases that are expected to determine the fate of affirmative action programs across the country, the court <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/21-707.html">heard oral arguments on Oct. 31, 2022,</a> that could bring an end to using race as one of many factors in college admissions decisions.</p>
<p>Questions from the justices reflected the ideological divisions on the court. Conservative justices argued that <a href="https://www.washingtonpost.com/politics/2022/10/31/supreme-court-race-college-admissions-harvard-unc/">race-based admissions policies had no defined end point</a>. </p>
<p>“I don’t see how you can say that the program will ever end,” Chief Justice John Roberts said. </p>
<p>Associate Justice Clarence Thomas cut right to the point in his questions. </p>
<p>“I may be tone-deaf when it comes to all these other things that happen on campus, about feeling good and all that,” <a href="https://www.cnn.com/2022/10/31/politics/takeaways-supreme-court-harvard-north-carolina-affirmative-action">Thomas said to one of the attorneys defending affirmative action</a>. “I’m really interested in a simple thing: What benefits academically are there to your definition or the diversity that you’re asserting.”</p>
<p>In sharp contrast, liberal Justice Sonia Sotomayor reminded the court that diversity was deemed an issue of national importance in previous rulings and that without such programs, <a href="https://www.cnn.com/politics/live-news/supreme-court-affirmative-action-oral-arguments/index.html">the number of historically disadvantaged applicants decreases substantially</a>. </p>
<p>“What we know,” Sotomayor said about the nine states who have tried dropping affirmative action programs, “in each of them, white admissions have either remained the same or increased. And clearly, in some institutions, the numbers for underrepresented groups has fallen dramatically, correct?” </p>
<h2>The US military experience</h2>
<p>In my view as a scholar of the history of affirmative action, the military officers make the <a href="https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diversity-wins-how-inclusion-matters">case that diversity</a> is a matter of life and death.</p>
<p>The officers <a href="https://www.supremecourt.gov/DocketPDF/20/20-1199/232531/20220801183329801_20-1199%20and%2021-707_Brief%20of%20Amici%20Curiae%20Former%20Military%20Leaders.pdf">argued in their brief</a> that barring universities from taking race into account in admissions risks sowing “internal resentment, discord, and violence” in an era when “diversity is imperative to our military’s dealings with international allies and complex global challenges.”</p>
<p>In addition, the military leaders argued that overturning affirmative action would damage the extremely successful talent pipeline that the officer corps has set up directly through military academies and indirectly through the university-based ROTC programs.</p>
<p>This is not the first time former military officials have weighed in on affirmative action. They <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3167&context=penn_law_review">did so</a> in the 2003 case against the affirmative action program at the University of Michigan in <a href="https://www.thirteen.org/wnet/supremecourt/future/landmark_grutter.html">Grutter vs. Bollinger</a>.</p>
<p>“The importance of maintaining a diverse, highly qualified officer corps has been beyond legitimate dispute for decades,” the military officials wrote. </p>
<p>Indeed, in 1962, when U.S. involvement was starting to grow in Vietnam, Black commissioned officers represented only 1.6% of the officers corps. Military academies remained virtually segregated, with Black people making up less than 1% of enrollees. As a result, the number of Black officers didn’t grow much.</p>
<figure class="align-center ">
<img alt="A wounded white solider is carried by a black soldier during the Vietnam War." src="https://images.theconversation.com/files/492564/original/file-20221031-7911-wj31l2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/492564/original/file-20221031-7911-wj31l2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/492564/original/file-20221031-7911-wj31l2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/492564/original/file-20221031-7911-wj31l2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/492564/original/file-20221031-7911-wj31l2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/492564/original/file-20221031-7911-wj31l2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/492564/original/file-20221031-7911-wj31l2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A wounded soldier is carried by members of the 1st Calvary Division near the Cambodian border during the Vietnam War.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/wounded-soldier-is-carried-by-members-of-the-1st-calvary-news-photo/514870008?phrase=vietnam%20war%20black%20soldiers&adppopup=true">Bettmann/GettyImages</a></span>
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<p>Over the next five years, the <a href="https://books.google.com/books/about/Blacks_and_the_Military_in_American_Hist.html?id=5JJ2AAAAMAAJ">number of Black soldiers fighting and dying</a> on the front lines grew to about 25%. Racial tensions between white and Black soldiers <a href="https://www.supremecourt.gov/DocketPDF/20/20-1199/232531/20220801183329801_20-1199%20and%2021-707_Brief%20of%20Amici%20Curiae%20Former%20Military%20Leaders.pdf">led to at least 300 fights</a> in a two-year-period that resulted in 71 deaths.</p>
<p>Fueling those fights was the belief among Black soldiers that the largely white officers didn’t care about their lives. </p>
<p>The lack of diversity, the military leaders wrote in their brief, “led to a complete breakdown in understanding between minority enlisted service members and the white officers who led them.” </p>
<p>In what they described as “a painful chapter,” military officials said the Vietnam War “brought home the importance of cultivating diversity across all levels of leadership.”</p>
<p>It also began the military’s use of affirmative action, including race-conscious admissions policies at service academies and in ROTC programs.</p>
<h2>Conservative target for decades</h2>
<p>In their lawsuits now in the Supreme Court against <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college/">Harvard</a> and the <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-university-of-north-carolina/">University of North Carolina</a>, the anti-affirmative action organization <a href="https://studentsforfairadmissions.org/">Students for Fair Admissions</a> argued that the schools’ race-conscious admissions process was unconstitutional and discriminated against high-achieving Asian American students in favor of traditionally underrepresented Blacks and Hispanics.</p>
<p>These cases mark the second time the Students for Fair Admissions and its founder, Edward Blum, <a href="https://www.cnn.com/2022/10/30/politics/scotus-affirmative-action-college-admissions-edward-blum/index.html">a conservative activist</a> who has raised millions of dollars from right-wing donors, have reached the Supreme Court in their efforts to dismantle affirmative action.</p>
<p>In 2016, they challenged the University of Texas on behalf of white and Asian students, but lost. That didn’t stop Blum from filing the latest challenges before the Supreme Court – all in the effort to eliminate the use of race in college admissions. </p>
<p>In an October 2022 interview, Blum said <a href="https://time.com/6225372/edward-blum-affirmative-action-supreme-court-interview/">he believes that diversity on campus is a good thing</a>, but “there is a way to go about doing this without putting a thumb on the scale.”</p>
<p>Given the conservative 6-3 majority on the Supreme Court and <a href="https://www.npr.org/2022/06/24/1102305878/supreme-court-abortion-roe-v-wade-decision-overturn">its controversial ruling</a> that overturned the landmark <a href="https://supreme.justia.com/cases/federal/us/410/113/">1973 abortion decision in Roe v. Wade</a>, it does not appear likely that affirmative action as it’s known will survive, despite decades of rulings that protected the use of race as an admissions criteria.</p>
<p>In 2007, for instance, Chief Justice Roberts wrote <a href="https://www.npr.org/sections/codeswitch/2014/04/23/306173835/two-justices-debate-the-doctrine-of-colorblindness">in a school busing case</a> that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”</p>
<p>Forms of that argument have been around since the 1970s, when a legal challenge reached the Supreme Court in <a href="https://www.law.cornell.edu/wex/regents_of_the_university_of_california_v_bakke_(1978)#:%7E:text=Primary%20tabs-,Regents%20of%20the%20University%20of%20California%20v.,Civil%20Rights%20Act%20of%201964">Regents of the University of California v. Bakke</a>. </p>
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<img alt="A white man wearing a black robe is seen graduating from medical school." src="https://images.theconversation.com/files/492560/original/file-20221031-24-5dk3v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/492560/original/file-20221031-24-5dk3v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=641&fit=crop&dpr=1 600w, https://images.theconversation.com/files/492560/original/file-20221031-24-5dk3v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=641&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/492560/original/file-20221031-24-5dk3v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=641&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/492560/original/file-20221031-24-5dk3v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=805&fit=crop&dpr=1 754w, https://images.theconversation.com/files/492560/original/file-20221031-24-5dk3v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=805&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/492560/original/file-20221031-24-5dk3v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=805&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Allan Bakke, 42, receives his medical diploma in 1982 after successfully challenging affirmative action admissions policies to the Supreme Court.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/allan-bakke-enters-freeborn-hall-to-receive-his-medical-news-photo/1096096308?phrase=allan%20bakke&adppopup=true">Bettmann Archive/Getty Images</a></span>
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<p>In that 1978 case, Allan Bakke, a white man, had been denied admission to University of California at Davis’ medical school. Though ruling that a separate admissions process for minority medical students was unconstitutional, Associate Justice Lewis Powell wrote that <a href="https://www.theatlantic.com/education/archive/2018/10/how-lewis-powell-changed-affirmative-action/572938/">race can still be one of several factors</a> in the admissions process.</p>
<p>Since then, the Supreme Court has issued different rulings on whether race could be used in college admissions.</p>
<p>In the 2003 <a href="https://casetext.com/case/grutter-v-bollinger-et-al">Grutter v. Bollinger</a> case, Justice Sandra Day O’Connor wrote the <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep539/usrep539306/usrep539306.pdf">majority opinion</a> that endorsed the University of Michigan’s “highly individualized, holistic review” that included race as a factor and had been legally challenged. </p>
<p>Most recently, in <a href="https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.PDF">Fisher v. University of Texas at Austin</a> in 2016, the court reaffirmed its belief in schools that “train students to appreciate diverse viewpoints, to see one another as more than mere stereotypes, and to develop the capacity to live and work together as equal members of a common community.”</p>
<h2>If not race, then what?</h2>
<p>Race-neutral admissions policies have had mixed results.</p>
<p>In the cases before the Supreme Court, the University of California <a href="https://www.supremecourt.gov/DocketPDF/20/20-1199/232355/20220801134931730_20-1199%20bsac%20University%20of%20California.pdf">also filed a brief urging the Court to allow the use of race</a>. The school argued that the elimination of its affirmative action program in 1996 has caused its diversity numbers to decline in some cases by more than 50%.</p>
<p>“UC’s experience demonstrates that the race-neutral methods which it has diligently pursued for 25 years have been inadequate to meaningfully increase student-body diversity,” the school said in its brief.</p>
<p>The impact on the number of Black and Latino students was virtually immediate. At UCLA, for instance, African American students made up 7.13% of the freshman class in 1995, and only 3.43% in 1998.</p>
<p>More than two decades later, the numbers have not improved. Though Latino students comprise 52.3% of California public high school graduates, only about 25.4% of college freshmen in the UC system identified as Latino. For Black students, the number graduating from high school was 5%, while the number of Black college freshmen was about 4%.</p>
<p>“UC’s decades-long experience with race-neutral approaches demonstrates that highly competitive universities may not be able to achieve the benefits of student body diversity through race-neutral measures alone,” the UC brief stated.</p><img src="https://counter.theconversation.com/content/190313/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Travis Knoll received funding from the Social Science Research Council in 2018-2019 to study the history of affirmative action in Brazil.</span></em></p>The US Supreme Court is poised to determine the fate of the use of race in college admissions. Supporters of affirmative action, like the military, fear the worst.Travis Knoll, Adjunct Professor of History, University of North Carolina – CharlotteLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1904022022-09-14T12:24:22Z2022-09-14T12:24:22ZA New Mexico official who joined the Capitol attacks is barred from politics – but the little-known law behind the removal has some potential pitfalls for democracy<figure><img src="https://images.theconversation.com/files/484407/original/file-20220913-3906-u7mwho.jpg?ixlib=rb-1.1.0&rect=499%2C507%2C4945%2C3119&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Couy Griffin, a former county commissioner in Otero County, N.M., rides a horse in New York City in May 2020</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/otero-county-commission-chairman-and-cowboys-for-trump-cofounder-couy-picture-id1211509102">Gotham/Getty Images</a></span></figcaption></figure><p>A county court in Santa Fe, New Mexico, on Sept. 6, 2022, became the first in more than 150 years to <a href="https://www.citizensforethics.org/wp-content/uploads/2022/09/D101CV202200473-griffin.pdf">disqualify a person</a> from public office because they participated in an insurrection. </p>
<p>District Court Judge Francis Mathew <a href="https://www.politico.com/news/2022/09/06/new-mexico-bars-commissioner-from-office-for-insurrection-00055010">found that</a> Couy Griffin, a former county commissioner and founder of the group Cowboys for Trump, had participated in the violent U.S. Capitol attack on Jan. 6, 2021. Mathew invoked a nearly forgotten part of the 14th Amendment, called <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3</a>, which can disqualify certain people from state or federal office if they have “engaged in insurrection or rebellion” or given “aid or comfort” to the United States’ enemies. </p>
<p>The clause was first adopted after the Civil War to keep former Confederates from participating in politics. The amendment says that disqualified people are barred for life from either running for or being appointed to office. But Congress can vote by a two-thirds majority to waive this ban. </p>
<p>The clause fell into general disuse after 1872, when <a href="https://ldhi.library.cofc.edu/exhibits/show/after_slavery_educator/unit_one_documents/document_two">Congress gave amnesty</a> to most former Confederates in a move toward reconciliation.</p>
<p>Some observers <a href="https://www.washingtonpost.com/opinions/2022/02/01/bar-insurrectionists-public-office-fourteenth-amendment-section-three/">have argued</a> that Section 3 disqualification should be dusted off to address the Jan. 6 mob and to stop other people who have threatened and committed violence – or tried to disrupt federal elections – from serving in government. </p>
<p>Mathew’s decision has also <a href="https://www.nytimes.com/2022/09/07/us/politics/trump-election-insurrection.html">renewed talk</a> among Democrats and good-governance groups about finding a way to use Section 3 against former President Donald Trump in order to disqualify him from ever holding office again. </p>
<p>We <a href="https://scholar.google.com/citations?user=Y_IU6JwAAAAJ&hl=en">are scholars</a> of <a href="https://scholar.google.co.uk/citations?user=6fk8Ks8AAAAJ&hl=en">comparative constitutional law</a> who <a href="https://scholar.google.com/citations?user=QoMY2TEAAAAJ&hl=en">have worked</a> on democratic backsliding around the world. In a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3938600">forthcoming article</a>, we point out that disqualification is potentially a useful tool to protect democracy, but it can also be dangerous – it rubs up against the basic idea of democracy as a system in which anyone can run, and voters can decide. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of men covered with face masks, shields and helmets clash with security forces outside the U.S. Capitol" src="https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484408/original/file-20220913-20-we5mu3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The disqualification of Couy Griffin is one of the latest efforts – but the only successful one – to remove people from office or prevent them from running because of their support for the Jan. 6 Capitol attacks.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/trump-supporters-clash-with-police-and-security-forces-as-people-try-picture-id1230734388">Brent Stirton/Getty Images</a></span>
</figcaption>
</figure>
<h2>Recent attempts at disqualification</h2>
<p>The disqualification of Griffin is one of several efforts voters and advocacy groups have lobbied for after Jan. 6. Most of these efforts have failed to remove someone from office or prevent them from running. But the examples are still useful in understanding how disqualification might be an alternative to more punitive criminal law options.</p>
<p>A suit filed by a group of voters to disqualify Rep. Marjorie Taylor Greene, for example, foundered in July when a Georgia court <a href="https://s3.documentcloud.org/documents/21902607/marjorie-taylor-greene-ruling.pdf">affirmed a lower court ruling</a> that she had not “engaged in insurrection.” </p>
<p>Arizona and Wisconsin state <a href="https://www.lawfareblog.com/after-cawthorn-ruling-can-trump-be-saved-section-3-14th-amendment">judges have also rejected</a> efforts to use Section 3 as a sword against those who supported the Jan. 6 insurrection. But none of these targets actually participated in the mob at the Capitol. Mere support of the rioters, or questioning the election outcome, is protected political speech under the First Amendment. </p>
<p>Griffin, though, engaged in a physical invasion of the Capitol.</p>
<p>Mathew’s careful opinion contains extensive factual findings and legal analysis. So it tees up nicely the question of whether and how disqualification from democratic office is legitimate, justified or effective in defense of democracy. </p>
<p>This is especially important in the U.S., where there is a lack of recent historical experience with disqualification of people working in politics.</p>
<h2>When disqualification makes sense</h2>
<p>Other countries make much more extensive use of political disqualification than the U.S. does, as we show in <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3938600">our forthcoming study</a>. </p>
<p>Israel’s courts, for example, have repeatedly <a href="https://www7.tau.ac.il/ojs/index.php/til/article/view/1587">disqualified candidates</a> for lack of “good character.” In Pakistan, the supreme court <a href="https://www.reuters.com/article/us-pakistan-politics/pakistan-supreme-court-rules-ousted-pm-sharif-cannot-lead-his-party-idUSKCN1G51NX">disqualified</a> sitting <a href="https://www.icij.org/investigations/panama-papers/former-pakistan-pm-sharif-sentenced-to-10-years-over-panama-papers/">Prime Minister Nawaz Sharif</a> in 2017 after he was named in the Panama Papers because of corruption.</p>
<p>There are various costs and benefits to disqualifying someone from office, and <a href="https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ccum36&section=5">there are also</a> open questions of <a href="https://www.lawfareblog.com/disqualifying-insurrectionists-and-rebels-how-guide">how to correctly</a> interpret Section 3. We focus on the first question of costs and benefits here.</p>
<p>Democracies require robust protections for free speech and association. But these freedoms can be abused by those seeking to undermine democracy itself. </p>
<p>For example, Mathew documents Griffin’s persistent efforts to cast doubt on the legitimate outcome of the 2020 election and to instigate violence to derail President Joe Biden’s inauguration. Most of Griffin’s actions, however, fell far short of the threshold necessary to justify criminal penalties for incitement – <a href="https://www.law.cornell.edu/constitution/first_amendment">the First Amendment</a> requires that the violence be imminent.</p>
<p>Griffin, nonetheless, participated in a concerted threat to American democracy. Disqualification is a way to address such threats without the heavy hand of the criminal law. </p>
<p>Section 3, more generally, is another way to address high-level misconduct in politics. As we have explored in <a href="http://dx.doi.org/10.2139/ssrn.3461120">another study</a> published in 2021, Congress has rarely impeached a U.S. president – and an impeached president has never actually been removed from office. Given partisan dynamics, it is unclear if impeachment could actually remove and disqualify a sitting president. </p>
<p>This might leave Section 3 as the best alternative. </p>
<h2>The risks of disqualification</h2>
<p>Mathew’s opinion suggests that Section 3’s “aid and comfort” language can go uncomfortably far. It could potentially chill legitimate political speech – including criticism of the government, or support for a foreign power – that doesn’t threaten democracy. </p>
<p>For example, plaintiffs justified the need to disqualify Griffin by saying that he committed “actions that normalized and incited violence” by “dehumanizing the opposition as ‘wicked’ and ‘vile.’” </p>
<p>Dehumanizing speech about political opponents is indeed often unhealthy for democratic practice, but it has <a href="https://www.bostonglobe.com/2022/09/08/opinion/maga-bidens-charge-semi-fascism/">become routine</a> in politics. </p>
<p>Another challenge is that the text for <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3</a> is not entirely clear about how disqualification actually works. Does it apply automatically to anyone who engages in insurrection? Or does it require some sort of either judicial or legislative process?</p>
<p>There is no settled answer. </p>
<p>In an 1869 decision, Supreme Court Chief Justice Salmon Chase suggested that Section 3 did not apply automatically – rather, disqualification occurred when Congress, or perhaps a state legislature, authorized it. </p>
<p>Mathew rejected the position that only Congress could make the determination and instead held that Griffin could be disqualified by order of a state court. </p>
<p>The potential breadth and ambiguity of Section 3 creates a risk that the measure could be repurposed, against its original aims, in a way that hurts democracy.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white older man with yellow hair and a suit holds up a Washington Post newspaper that says 'Trump acquitted' in large black font" src="https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484409/original/file-20220913-3897-hj2y62.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">While a few presidents have been impeached, including Donald Trump twice, they were not removed from office.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/president-donald-trump-holds-a-copy-of-the-washington-post-as-he-in-picture-id1198921166">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>The bigger picture</h2>
<p>Disqualification, then, is a superficial remedy to a profound problem. It might be effective against a low-level official like Griffin, but the bigger the target, the less power everyday voters have.</p>
<p>Imagine that some court was persuaded to disqualify Trump from a state’s 2024 presidential ballot. Such a move could be considered to disenfranchise his supporters. This could play into Trump’s beliefs that the “<a href="https://www.theatlantic.com/politics/archive/2016/10/trumps-rigged-game/504299/">game is rigged</a>.”</p>
<p>Whatever the correct legal answer, there is a strong case for eliminating the uncertainty around how Section 3 works. We’ve argued for a carefully crafted federal statute that clearly explains when it applies and how it works.</p>
<p>If disqualification is to become an effective sword to defend democratic politics, it must not become a two-edged one that later weakens the democratic process in the U.S.</p><img src="https://counter.theconversation.com/content/190402/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Other countries disqualify political officials and prevent them from holding office more often than the US does. There are benefits and potential risks to using this kind of legal tactic.Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, University of ChicagoDavid Landau, Mason Ladd Professor and Associate Dean for International Programs, Florida State UniversityTom Ginsburg, Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science, University of ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1870582022-07-15T14:26:38Z2022-07-15T14:26:38ZThe Supreme Court’s ideological rulings are roiling US politics – just as when Lincoln and his Republicans remade the court to fit their agenda<figure><img src="https://images.theconversation.com/files/474192/original/file-20220714-32349-br0sbz.jpeg?ixlib=rb-1.1.0&rect=9%2C0%2C6589%2C4392&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">"Impeach and remove partisan zealots from the court," reads one protester's sign in front of the U.S. Supreme Court on July 9, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-activists-march-to-the-white-house-to-news-photo/1241807840?adppopup=true">Yasin Ozturk/Anadolu Agency via Getty Images</a></span></figcaption></figure><p>Political conflict over the Supreme Court’s direction is raging in the <a href="https://apnews.com/article/abortion-us-supreme-court-gun-politics-gay-rights-government-and-273d1eb9b6f7af60e1a967e2d47b75df">aftermath of two sweeping rulings</a> in the court’s most recent term, one which expanded individual gun rights and the other which removed constitutional protection for abortion. Those rulings were the product of a conservative majority <a href="https://www.bloomberg.com/news/articles/2022-06-26/abortion-gun-rulings-show-supreme-court-ready-to-jolt-system">made more muscular and bold in the last few years by the addition of three justices</a> appointed by former President Donald Trump.</p>
<p>The rulings were hailed by conservatives and criticized by progressives and liberals. Republican Sen. <a href="https://www.cruz.senate.gov/newsroom/press-releases/sen-cruz-on-the-dobbs-decision-nothing-short-of-a-massive-victory-for-life">Ted Cruz of Texas</a> issued a statement saying: “The Supreme Court’s decision in the Dobbs case, reversing Roe v. Wade, is nothing short of a massive victory for life.” <a href="https://www.washingtonpost.com/politics/2022/07/09/biden-democrats-abortion-dobbs/">President Joe Biden</a> spoke of the “outrageous behavior of the Supreme Court,” while on his left, <a href="https://www.afj.org/article/supreme-court-overturns-roe-casey-and-its-legitimacy/">Rakim H.D. Brooks</a>, the head of Alliance for Justice, a coalition of more than 130 progressive groups, said, “This disturbing milestone speaks to how hyper-partisan and lawless the Trump Court has become.” </p>
<p>The conflict over the court and its politics may be making headlines now. But history shows that political contests over the ideological slant of the court are nothing new.</p>
<p>In the 1860s, President Abraham Lincoln worked with fellow Republicans to shape the Court to carry out his party’s anti-slavery and pro-Union agenda. It was an age in which the court was unabashedly a “<a href="https://www.washingtonpost.com/outlook/supreme-court-politics-history/2020/09/25/">partisan creature</a>,” in historian Rachel Shelden’s words.</p>
<p>Justice John Catron had advised Democrat James K. Polk’s 1844 presidential campaign, and Justice John McLean was a serial presidential contender in a black robe. And in the 1860s, Republican leaders would change the number of justices and the political balance of the Court to ensure their party’s dominance of its direction.</p>
<h2>Overhauling the court</h2>
<p>When Lincoln became president in 1861, <a href="https://www.loc.gov/collections/civil-war-glass-negatives/articles-and-essays/time-line-of-the-civil-war/1861/">seven Southern states had already seceded from the Union</a>, yet half of the Supreme Court justices were Southerners, including Chief Justice Roger B. Taney of Maryland. One other Southern member had died in 1860, without replacement. All were Democratic appointees.</p>
<p>The court was “<a href="https://chroniclingamerica.loc.gov/lccn/sn83016751/1862-01-03/ed-1/seq-1/#date1=1862&index=0&rows=20&words=last+power+Southern+stronghold&searchType=basic&sequence=0&state=&date2=1863&proxtext=last+stronghold+southern+power&y=23&x=20&dateFilterType=yearRange&page=1">the last stronghold of Southern power</a>,” according to one Northern editor. Five sitting justices were among the court’s 7-2 majority in the racist 1857 Dred Scott v. Sandford ruling, in <a href="https://teachingamericanhistory.org/library/document/dred-scott-v-sandford/">which Taney wrote</a> that Black people were “so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” </p>
<p><a href="https://chroniclingamerica.loc.gov/lccn/sn82014306/1861-02-06/ed-1/seq-1/#date1=1861&index=4&date2=1869&words=Court+Federal+reorganize&searchType=basic&sequence=0&state=&rows=20&proxtext=reorganization+%22federal+courts%22&y=12&x=17&dateFilterType=yearRange&page=1">Some Republicans declared</a> it “the duty of the Republican Party to reorganize the Federal Court and reverse that decision, which … disgraces the judicial department of the Federal Government.”</p>
<p>After Lincoln called in April 1861 for 75,000 volunteers to put down the Southern rebellion, four more states seceded. So did Justice John Archibald Campbell of Georgia, who resigned on April 30.</p>
<p>Chief Justice Taney helped the Confederacy when he <a href="https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown">tried to restrain</a> the president’s power. In May 1861, he issued a writ of habeas corpus in <a href="https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown">Ex Parte Merryman</a> declaring that the president couldn’t arbitrarily detain citizens suspected of aiding the Confederacy. Lincoln ignored the ruling.</p>
<figure class="align-center ">
<img alt="A black and white protrait of a white man wearing an elaborate suit and holding a book." src="https://images.theconversation.com/files/362670/original/file-20201009-23-jnd2g7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/362670/original/file-20201009-23-jnd2g7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/362670/original/file-20201009-23-jnd2g7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/362670/original/file-20201009-23-jnd2g7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/362670/original/file-20201009-23-jnd2g7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/362670/original/file-20201009-23-jnd2g7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/362670/original/file-20201009-23-jnd2g7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Roger Taney tried to limit Lincoln’s powers in the Civil War.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/resource/cph.3c07588/">Library of Congress Prints and Photographs Division</a></span>
</figcaption>
</figure>
<h2>Remaking the court</h2>
<p>To counter the court’s southern bloc, Republican leaders used judicial appointments to protect the president’s power to fight the Civil War. The Lincoln administration was also looking ahead to Reconstruction and a governing Republican majority.</p>
<p>Nine months into his term, <a href="https://www.presidency.ucsb.edu/documents/first-annual-message-9">Lincoln declared</a> that “the country generally has outgrown our present judicial system,” which since 1837 had comprised nine federal court jurisdictions, or “circuits.” Supreme Court justices rode <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1540-5818.2011.01270.x">the circuit</a>, presiding over those federal courts.</p>
<p>Republicans passed the Judiciary Act of 1862, overhauling the federal court system by <a href="https://www.fjc.gov/history/exhibits/graphs-and-maps/federal-judicial-circuits">collapsing federal circuits</a> in the South from five to three while expanding circuits in the North from four to six. The old ninth circuit, for example, included just Arkansas and Mississippi. The new ninth included Missouri, Kansas, Iowa and Minnesota instead. Arkansas became part of the sixth, and Mississippi, the fifth.</p>
<p>In 1862, after Campbell’s resignation and McLean’s death, Lincoln filled three open Supreme Court seats with loyal Republicans <a href="https://www.oyez.org/justices/noah_swayne">Noah H. Swayne</a> of Ohio, <a href="https://www.oyez.org/justices/samuel_f_miller">Samuel Freeman Miller of Iowa</a> and <a href="https://www.oyez.org/justices/david_davis">David Davis of Illinois</a>. The high court now included three Republicans and three Southerners. </p>
<p><a href="https://www.oyez.org/cases/1850-1900/67us635">The 1863 Prize cases</a> tested whether Republicans had managed to secure a friendly court. At issue was whether the Union could seize American ships sailing into blockaded Confederate ports. In a 5-4 ruling, the high court – including all three Lincoln appointees – said yes.</p>
<p>Congressional Republicans spied a way to expand the court while solving what amounted to a geopolitical judicial problem. In 1863, Congress created a new <a href="https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/12/STATUTE-12-Pg794.pdf">10th circuit by adding Oregon</a>, which had become a state in 1859, to California’s circuit. The Tenth Circuit Act also added a 10th Supreme Court justice. Lincoln elevated pro-Union Democrat <a href="https://www.oyez.org/justices/stephen_j_field">Stephen Field</a> to that seat.</p>
<p>And after Chief Justice Taney died in 1864, <a href="https://www.britannica.com/biography/Salmon-P-Chase">Lincoln selected his political rival, Treasury Secretary Salmon P. Chase</a>, an architect of national monetary policy, to replace him. With Chase, Lincoln succeeded in creating a pro-administration high court.</p>
<h2>Unpacking the court</h2>
<p>After Lincoln’s assassination in April 1865, his successor, <a href="https://millercenter.org/president/johnson/life-in-brief">President Andrew Johnson of Tennessee</a>, soon began undoing Lincoln’s achievements. He was a Unionist Democrat given the vice presidency as an olive branch to the South. He rewarded that gesture in part by pardoning rank and file Confederates. Johnson also opposed civil rights for newly freed African Americans.</p>
<p>He also threatened to appoint like-minded judges. But the Republican-dominated Congress blocked Johnson from elevating unreconstructed Rebels to the high court. <a href="https://www.loc.gov/law/help/statutes-at-large/39th-congress/session-1/c39s1ch210.pdf">The Judicial Circuits Act of 1866</a> shrank the number of federal circuits to seven and held that no Supreme Court vacancies would be filled until just seven justices remained. </p>
<p>The Philadelphia Evening Telegraph’s Democratic <a href="https://chroniclingamerica.loc.gov/lccn/sn83025925/1867-02-12/ed-1/seq-1/#date1=1862&index=1&rows=20&words=Court+pack+Supreme&searchType=basic&sequence=0&state=&date2=1870&proxtext=pack+%22supreme+court%22&y=19&x=14&dateFilterType=yearRange&page=1">editor sighed</a> that at least Republicans “cannot pack the Supreme Court at this moment.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photograph shows a heavyset white man wearing judicial robes and staring into the camera." src="https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=934&fit=crop&dpr=1 754w, https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=934&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/362672/original/file-20201009-17-17ln89d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=934&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lincoln appointed three Republicans to the Supreme Court in 1862, including then-Judge Noah H. Swayne.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/item/2017895202/">Library of Congress Brady-Handy Collection</a></span>
</figcaption>
</figure>
<h2>Courting paper money</h2>
<p>Republicans refused to consider nominating Johnson in 1868, picking Gen. Ulysses S. Grant instead. He won, and after President Grant’s inauguration, Congress passed <a href="https://www.loc.gov/law/help/statutes-at-large/41st-congress/session-1/c41s1ch22.pdf">the Circuit Judges Act of 1869</a>, raising back to nine the number of Supreme Court justices. </p>
<p>Shortly after, Republicans faced a financial problem of their own making.</p>
<p>Beginning in 1862, Congress had passed three <a href="https://www.britannica.com/event/Legal-Tender-Cases#ref285279">Legal Tender Acts</a> – initially to help finance the war, authorizing debt payments using paper money not backed by gold or silver. Then-Treasury Secretary and current Chief Justice Salmon P. Chase had crafted the legislation.</p>
<p>But in an 1870 case, <a href="https://www.law.cornell.edu/supremecourt/text/75/603">Hepburn v. Griswold</a>, Chase reversed himself in a 4-3 decision, ruling the Legal Tender Acts unconstitutional. That threatened national monetary policy and Republicans’ cozy relationship with industries reliant on government sponsorship.</p>
<p>President Grant, preparing for Chase’s ruling, was already working on a political solution. On the day of the Hepburn decision, he appointed two pro-paper-money Supreme Court nominees, <a href="https://www.oyez.org/justices/william_strong">William Strong of Pennsylvania</a> and <a href="https://www.oyez.org/justices/joseph_p_bradley">Joseph P. Bradley of New York</a>. Comparing the Republican administration to “a brokerage office,” a Democratic newspaper <a href="https://chroniclingamerica.loc.gov/lccn/sn84038628/1870-09-20/ed-1/seq-2/#date1=1862&index=4&rows=20&words=court+pack+supreme&searchType=basic&sequence=0&state=&date2=1870&proxtext=pack+%22supreme+court%22&y=19&x=14&dateFilterType=yearRange&page=1">howled that</a> “the attempt to pack the supreme court to secure a desired judicial decision … [has] brought shame and humiliation to an entire people.” </p>
<p>It also brought a Republican majority to the high court for the first time.</p>
<p>Chief Justice Chase opposed revisiting the paper money issue. But the Supreme Court about-faced, ruling 5-4 in the 1871 cases <a href="https://www.law.cornell.edu/supremecourt/text/79/457">Knox v. Lee and Parker v. Davis</a> that the government could indeed print paper money to pay debts. Chase died in 1873, and his successor <a href="https://library.cqpress.com/scc/document.php?id=bioenc-427-18170-979622&v=4f9cfec81ebd03f5">Morrison Waite</a> championed the Republican pro-business agenda.</p>
<h2>Careful what you wish for</h2>
<p>The Republican transformation of the federal judiciary in the 1860s and 1870s served the party well in the Civil War and constructed a legal framework for a modernizing industrial economy.</p>
<p>But in the end, Lincoln and Grant’s high court appointments ended up being disastrous for civil rights. Justices Bradley, Miller, Strong and Waite tended to constrain civil rights protections like the 14th Amendment, which guarantees equal protection of laws. Subsequent rulings gutted <a href="https://theconversation.com/on-the-supreme-court-difficult-nominations-have-led-to-historical-injustices-103579">Black civil rights</a>. </p>
<p>In remaking the court in Republicans’ image, the party got what it wanted – but not what was needed to fulfill the promise of “<a href="http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm">a new birth of freedom</a>.” </p>
<p><em>This article is an update to <a href="https://theconversation.com/packing-the-court-amid-national-crises-lincoln-and-his-republicans-remade-the-supreme-court-to-fit-their-agenda-147139">a story that originally was published</a> on Oct. 12, 2020.</em></p><img src="https://counter.theconversation.com/content/187058/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Calvin Schermerhorn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>History shows that political contests over the ideological slant of the court are nothing new.Calvin Schermerhorn, Professor of History, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1832042022-06-15T12:26:49Z2022-06-15T12:26:49ZPrivacy isn’t in the Constitution – but it’s everywhere in constitutional law<figure><img src="https://images.theconversation.com/files/468077/original/file-20220609-18254-mfvhp4.jpg?ixlib=rb-1.1.0&rect=28%2C7%2C4655%2C3707&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Who's allowed to watch what you do and say?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/two-women-looking-over-fence-royalty-free-image/200365509-005">Shannon Fagan/The Image Bank via Getty Images</a></span></figcaption></figure><p>Almost all American adults – including parents, medical patients and people who are sexually active – regularly exercise their right to privacy, even if they don’t know it.</p>
<p>Privacy is not specifically mentioned in the <a href="https://constitution.congress.gov/constitution/">U.S. Constitution</a>. But for half a century, the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my <a href="https://www.cambridge.org/core/books/privacy-at-the-margins/821035ECA5D61516D87C454DD1FF8167">research</a> on <a href="https://scholar.google.com/citations?user=XT6-THQAAAAJ&hl=en&oi=ao">constitutional privacy rights</a>, this implied right to privacy is the source of many of the nation’s most cherished, contentious and commonly used rights – including the right to have an abortion – until the court’s June 24, 2022, ruling in <a href="https://www.oyez.org/cases/2021/19-1392">Dobbs v. Jackson</a>.</p>
<h2>A key component of liberty</h2>
<p>The Supreme Court first formally identified what is called “<a href="https://supreme.justia.com/cases/federal/us/429/589/">decisional privacy</a>” – the right to independently control the most personal aspects of our lives and our bodies – in 1965, saying it was <a href="https://www.law.cornell.edu/wex/griswold_v_connecticut_%281965%29">implied from other explicit constitutional rights</a>.</p>
<p>For instance, the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> rights of speech and assembly allow people to privately decide what they’ll say, and with whom they’ll associate. The <a href="https://constitution.congress.gov/constitution/amendment-4/">Fourth Amendment</a> limits government intrusion into people’s private property, documents and belongings.</p>
<p>Relying on these explicit provisions, the court concluded in <a href="https://www.law.cornell.edu/wex/griswold_v_connecticut_%281965%29">Griswold v. Connecticut</a> that people have privacy rights preventing the government from forbidding married couples from using contraception. </p>
<p>In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an <a href="https://www.law.cornell.edu/supremecourt/text/410/113">abortion</a>, the court held that the right of decisional privacy is based in the Constitution’s assurance that people cannot be “deprived of life, liberty or property, without due process of law.” That phrase, called the due process clause, <a href="https://www.law.cornell.edu/wex/due_process">appears twice in the Constitution</a> – in the <a href="https://constitution.congress.gov/constitution/amendment-5/">Fifth</a> and <a href="https://constitution.congress.gov/constitution/amendment-14/">14th Amendments</a>. </p>
<p>Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities. </p>
<p>The right to privacy protects the ability to have consensual sex <a href="https://supreme.justia.com/cases/federal/us/539/558/#tab-opinion-1961305">without being sent to jail</a>. And privacy buttresses the <a href="https://www.law.cornell.edu/supct/pdf/14-556.pdf">ability to marry</a> regardless of race or gender.</p>
<p>The right to privacy is also key to a person’s ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a <a href="https://supreme.justia.com/cases/federal/us/431/494/#tab-opinion-1952239">grandmother could move her grandchildren into her home to raise them</a> even though it violated a local zoning ordinance. </p>
<p>Under a combination of privacy and liberty rights, the Supreme Court has also protected a person’s freedom in medical decision-making. For example, in 1990, the court concluded “that a competent person has a <a href="https://supreme.justia.com/cases/federal/us/497/261/">constitutionally protected liberty interest</a> in refusing unwanted medical treatment.” </p>
<h2>Limiting government disclosure</h2>
<p>The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist <a href="https://supreme.justia.com/cases/federal/us/433/425/">noted in 1977</a>, the “concept of ‘privacy’ can be a coat of many colors, and quite differing kinds of rights to ‘privacy’ have been recognized in the law.” </p>
<p>This includes what is called a right to “informational privacy” – letting a person limit government disclosure of information about them. </p>
<p>According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist – both conservative justices – <a href="https://supreme.justia.com/cases/federal/us/433/425/">suggested</a> in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2691422">Lower courts</a> have relied on the right of informational privacy to limit the government’s ability to disclose someone’s sexual orientation or HIV status. </p>
<p>All told, though the word isn’t in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded – such as in a future Supreme Court decision – many of the rights it’s connected with may also be in danger.</p>
<p><em>This story was updated on June 24, 2022, to reflect the Supreme Court’s decision in Dobbs v. Jackson Women’s Health.</em></p><img src="https://counter.theconversation.com/content/183204/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott Skinner-Thompson serves on the advisory board of the Electronic Privacy Information Center (EPIC). </span></em></p>The Supreme Court has found protections for people’s privacy in several constitutional amendments – and used it as a basis for some pretty fundamental protections.Scott Skinner-Thompson, Associate Professor of Law, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1827452022-05-13T12:14:14Z2022-05-13T12:14:14ZWhat is ‘personhood’? The ethics question that needs a closer look in abortion debates<figure><img src="https://images.theconversation.com/files/462571/original/file-20220511-16280-ov3b1o.jpg?ixlib=rb-1.1.0&rect=70%2C8%2C5803%2C3901&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Debate about abortion is often a debate about rights -- but whose?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/60e2430f34f24c27afd483e217f998f7/photo?Query=abortion&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=10431&currentItemNo=19">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>Controversy over abortion reached a fever pitch on May 2, 2022, when the leaked <a href="https://www.politico.com/f/?id=00000180-874f-dd36-a38c-c74f98520000">draft of a U.S. Supreme Court majority opinion</a> was published by Politico. If the draft’s key points are reflected in the final ruling, this would strike down <a href="https://supreme.justia.com/cases/federal/us/410/113/">Roe v. Wade</a>, a landmark decision that nearly 50 years ago established the right to choose an abortion.</p>
<p>Current constitutional law grants a right to have an abortion until a fetus <a href="https://doi.org/10.1093/jlb/lsaa059">becomes viable</a> – in other words, until there is a reasonable probability it could survive outside the womb with care. Today, this typically occurs between the 22nd and 24th weeks of pregnancy.</p>
<p>The ruling in Roe v. Wade was grounded on the idea that the U.S. Constitution <a href="https://supreme.justia.com/cases/federal/us/381/479/">protects privacy</a>, stemming from the <a href="https://constitution.congress.gov/browse/amendment-14/">14th Amendment</a>. However, the draft majority opinion, written by Justice Samuel Alito, argues Roe v. Wade should be overturned because the Constitution makes no mention of abortion.</p>
<p>While a final ruling is not expected before June 2022, the decision will not put to rest controversy over abortion. Why does the legalization of abortion continue to be hotly contested, nearly a half century after Roe v. Wade? This question is of great interest to me, <a href="https://depts.washington.edu/bhdept/nancy-s-jecker-phd-sheher">as a philosopher and bioethicist</a>, since I study philosophical problems that lie just beneath the surface of contemporary controversies like abortion.</p>
<h2>Defining personhood</h2>
<p>One underlying ethical concern is, “What is a person?” How people answer this question shapes how they think about a developing human being. When philosophers talk about “personhood,” they are referring to something or someone having <a href="https://plato.stanford.edu/archives/spr2021/entries/grounds-moral-status/">exceptionally high moral status</a>, often described as having a right to life, an inherent dignity, or mattering for one’s own sake. Non-persons may have lesser rights or value, but lack the full moral value associated with persons. </p>
<p>To be a person means having strong moral claims against others. For instance, persons have a claim to be treated fairly and a claim not to be interfered with. A healthy adult human being is often considered the clearest example of a person. Yet, most philosophers <a href="https://medicine.missouri.edu/centers-institutes-labs/health-ethics/faq/personhood#:%7E:text=It%20is%20common%20to%20assume,Homo%20sapiens%20(or%20related).">distinguish being a person from being human</a>, pointing out that no one disputes the fetus’s species, but many disagree about the fetus’s personhood.</p>
<p>In current law, fetal viability is often used to mark the beginning of personhood. However, <a href="https://doi.org/10.1093/jlb/lsaa059">viability varies</a> based on people’s access to intensive medical care. It also changes as medicine and technology advance.</p>
<p>Some <a href="https://capitol.texas.gov/tlodocs/87R/billtext/html/HB01515I.htm">state laws restricting abortion</a> identify the presence of a “fetal heartbeat” as morally significant and use this as a basis for personhood. However, many living things have beating hearts, and they are not all considered persons. And as physicians point out, though they may use the term “fetal heartbeat” in conversations with patients, the fetus <a href="https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion">does not yet have a functioning heart</a> that generates sound during early development.</p>
<p>Defining the limits of personhood is especially dicey due to its far-reaching consequences. Personhood carries implications for how we treat <a href="https://www.harpercollins.com/products/animal-liberation-peter-singer?variant=32154016415778">animals</a>, <a href="https://global.oup.com/academic/product/a-sand-county-almanac-9780197500262?cc=us&lang=en&">ecosystems</a> and <a href="https://www.researchgate.net/publication/20865310_Anencephalic_infants_and_special_relationships">anencephalic infants, who are born with their cerebral cortex and large parts of their skull missing</a>. It also shapes the rights of <a href="https://plato.stanford.edu/entries/justice-intergenerational/">people who will be born in the future</a>, <a href="https://doi.org/10.1086/454366">people with disabilities</a> and <a href="https://global.oup.com/academic/product/the-ethics-of-killing-9780195169829?cc=us&lang=en&">individuals in a persistent vegetative state</a>. Debates over personhood have recently <a href="https://doi.org/10.1007/s13347-022-00531-5">extended to robots</a>. </p>
<p>Personhood is also important for issues at the end of life, such as disputes over <a href="https://blogs.scientificamerican.com/observations/what-is-death-exactly/">defining death</a>. Physicians have disagreed with families over <a href="https://doi.org/10.1038/nrneurol.2017.72">whether to declare a patient dead</a> or continue to offer medical interventions. <a href="https://academic.oup.com/jmp/article-abstract/26/5/527/1046807?redirectedFrom=PDF">Philosophers have debated</a> whether a person’s death occurs as soon as “higher” brain activity ceases – activity associated consciousness and cognition – or only after all brain activity ends. </p>
<h2>When personhood begins</h2>
<p>In short, there are plenty of reasons to figure out what personhood requires. Doing so demands wrestling with at least three common opposing views. </p>
<p>The first holds that fetuses qualify as persons from the moment of conception. Supporters say that from conception on, the developing fetus has “<a href="https://doi.org/10.2307/2026961">a future like ours</a>,” and abortion takes that future away. A variation on this theme is that at conception, a fetus has the full genetic code and therefore the <a href="https://spot.colorado.edu/%7Eheathwoo/Phil160,Fall02/noonan.htm">potential to become a person</a>, and this potential qualifies the fetus as a person. </p>
<figure class="align-center ">
<img alt="Men in suits speak in front of a poster that says " src="https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">South Carolina Sen. Richard Cash reintroduces personhood legislation in 2019. The bill stipulated that life begins at conception, and from that moment a developing fetus has the same rights as other citizens.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionBan/6576cdd5ebd0403c94f31f01a0160900/photo?Query=abortion%20personhood&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=44&currentItemNo=0">AP Photo/Christina Myers</a></span>
</figcaption>
</figure>
<p>A second view regards personhood as arising at some point after conception and prior to birth. Some people reason that a human being’s moral status is not all-or-nothing, but, like human development, <a href="https://doi.org/10.1111/j.2041-6962.2008.tb00075.x">a matter of degree</a>. Others say that what matters is <a href="https://doi.org/10.1093/acprof:oso/9780198250401.001.0001">consciousness and other cognitive capacities</a>, thought to develop late in the second trimester.</p>
<p>Finally, a third view maintains that personhood begins at <a href="https://www.jstor.org/stable/2264919">birth or shortly thereafter</a>, because this is when an infant first acquires a sense of themselves and an interest in their own continued existence. Another source of support for the third view is Enlightenment philosopher Immanuel Kant’s claim <a href="https://www.jstor.org/stable/24562795">that what makes human beings morally special is their rationality</a> and capacity to be autonomous.</p>
<h2>Conflicts between persons</h2>
<p>Which view about personhood is right? If a society can’t agree about personhood, another strategy would be to imagine that one’s opponent’s view is right, and consider the implications.</p>
<p>Suppose, for example, that fetuses are persons. Since pregnant people are too, how should conflicts between them be settled? Suppose a pregnant person’s life were in jeopardy: whose right to life prevails? Some hold that under these conditions, abortion is justified by appealing to self-defense, but others say killing in self-defense <a href="https://doi.org/10.1111/j.1088-4963.1994.tb00005.x">is not justified</a> if the threat is “innocent,” without intention of doing harm.</p>
<p>Even when a pregnant person’s life is not in danger, some philosophers argue that a fetus’s right to life would not automatically override a pregnant person’s right to <a href="https://www.jstor.org/stable/2265091">live their life as they wish</a>. In a famous article, <a href="https://news.mit.edu/2020/professor-emerita-judith-jarvis-thomson-influential-philosopher-dies-1204">ethicist Judith Jarvis Thomson</a> used the hypothetical example of someone extremely ill, who could only be saved by actor Henry Fonda touching their brow. Must Fonda attend to them? She argued no: a right to life is not usually understood as a claim to whatever one needs to stay alive. Instead, it requires not having one’s life unjustly ended.</p>
<p>When weighing rights, it is important to consider the toll exacted when people wishing to terminate a pregnancy are prevented from doing so. A <a href="https://www.ansirh.org/research/ongoing/turnaway-study">decade-long study</a> showed people in this situation suffered adverse health effects; were less likely to have money for basic living expenses like food, housing and transportation; and were more likely to remain with violent partners. Since the risk of dying from childbirth is much greater than the risk of dying from legal abortion, a ban on abortion is projected to <a href="https://doi.org/10.1215/00703370-9585908">increase maternal mortality</a>.</p>
<p>The constitutional right to abortion will likely soon be settled. If the Supreme Court strikes down Roe v. Wade, this will raise yet more ethical questions – about fairness, for example, considering, that people living in poverty and members of <a href="https://www.pbs.org/newshour/nation/black-and-hispanic-people-have-the-most-to-lose-if-roe-is-overturned">minority groups would be among those most affected</a>, and that a majority of Americans <a href="https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/">support abortion rights</a>. </p>
<p>Only by shifting the conversation from politics and law to ethics will Americans start to reckon with what truly matters in abortion debates.</p><img src="https://counter.theconversation.com/content/182745/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nancy S. Jecker does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The definition of personhood is a key and contested philosophical issue that has made legalized abortion such a longstanding controversy.Nancy S. Jecker, Professor of Bioethics and Humanities, School of Medicine, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1819052022-05-09T12:03:44Z2022-05-09T12:03:44ZForgotten insurrection clause of 14th Amendment used to force GOP members of Congress to defend their actions on Jan. 6<figure><img src="https://images.theconversation.com/files/460648/original/file-20220501-20-4ds6nj.jpg?ixlib=rb-1.1.0&rect=1324%2C649%2C5837%2C4427&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Republican Rep. Marjorie Taylor Greene of Georgia speaks outside the U.S. Capitol on April 28, 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-marjorie-taylor-greene-speaks-during-a-press-conference-news-photo/1394252510?adppopup=true">Win McNamee/Getty Images</a></span></figcaption></figure><p>Lawyers representing voters in <a href="https://apnews.com/article/lawsuits-arizona-phoenix-constitutions-paul-gosar-fefc259cdb6cbf7cc9369c5f2f939c61">Arizona</a>, <a href="https://lawandcrime.com/u-s-capitol-breach/this-is-a-solemn-occasion-georgia-voters-fight-to-disqualify-marjorie-taylor-greene-from-ballot-citing-14th-amendment-bar-on-insurrection/">Georgia</a> and <a href="https://wlos.com/news/local/madison-cawthorn-14th-amendment-disqualification-clause-legal-challenge-free-speech-for-people-north-carolina-district-13">North Carolina</a> have filed lawsuits alleging that their elected congressional representatives are barred from running for future office based on a little-known provision of the <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv">14th Amendment</a>. </p>
<p>Specifically, <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3</a> of the 14th Amendment reads: </p>
<blockquote>
<p>“No person shall be a Senator or Representative in Congress … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof.” </p>
</blockquote>
<p>Proponents of <a href="https://freespeechforpeople.org/one-year-after-january-6th-attack-on-the-us-capitol-public-interest-groups-launch-campaign-to-bar-insurrectionists-from-the-ballot/">barring these representatives</a> from running for reelection argue that <a href="https://www.latimes.com/politics/story/2022-03-11/hundreds-of-jan-6-defendants-wait-day-in-court-as-justice-department-processes-mountain-of-information">their active support</a> for those who stormed the U.S. Capitol <a href="https://www.cnn.com/politics/live-news/january-6-capitol-insurrection-anniversary/index.html">on Jan. 6, 2021</a>, qualifies as involvement in “insurrection or rebellion” against the U.S. government.</p>
<p><a href="https://hls.harvard.edu/faculty/directory/10870/Sullivan">As a constitutional scholar</a>, I believe that the lawyers seeking disqualification have a steep hill to climb in all of these cases – especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech. </p>
<p>That is not stopping those who want to hold accountable the elected officials who were involved in the storming of the Capitol on Jan. 6. </p>
<p>The challenges filed against GOP Reps. <a href="https://freespeechforpeople.org/wp-content/uploads/2022/03/fsfp-mtg-14.3-georgia-complaint-2022-03-24.pdf">Marjorie Taylor Greene</a> of Georgia, <a href="https://www.documentcloud.org/documents/21195319-cawthorne-federal-lawsuit">Madison Cawthorn</a> of North Carolina and <a href="https://apnews.com/article/lawsuits-arizona-phoenix-constitutions-paul-gosar-fefc259cdb6cbf7cc9369c5f2f939c61">Paul Gosar and Andy Biggs</a> of Arizona – as well as Arizona Rep. Mark Finchem – are part of a larger national campaign run by the nonprofit advocacy groups <a href="https://freespeechforpeople.org/">Free Speech for People</a> and <a href="https://ourrevolution.com/">Our Revolution</a>.</p>
<p>So far, <a href="https://www.nytimes.com/2022/03/04/us/politics/madison-cawthorn-north-carolina-insurrectionist.html">judges</a> have dismissed those arguments <a href="https://www.scribd.com/document/571115991/CV2022-004321-ME-Under-Advisement-Ruling-4-21-2022">in Arizona</a> and North Carolina. Both are on appeal. </p>
<h2>Greene’s role in Jan. 6</h2>
<p><a href="https://www.nbcnews.com/politics/2022-election/greenes-lawyers-insist-didnt-incite-violence-instead-victim-jan-6-riot-rcna26716">The case</a> against <a href="https://www.congress.gov/member/district/marjorie-greene/G000596">Rep. Greene of Georgia</a>provides a useful lens through which to analyze this unique constitutional claim.</p>
<p>The <a href="https://news.bloomberglaw.com/us-law-week/greene-accused-of-misleading-court-about-call-for-martial-law">challenge to her candidacy</a> came to an end on May 5 when a Georgia state Judge Charles Beaudrot Jr. ruled that <a href="https://www.npr.org/2022/05/06/1097232814/marjorie-taylor-greene-can-remain-on-ballot-judge-says-despite-candidacy-challen">Greene should remain</a> on the ballot because lawyers challenging Greene’s run <a href="https://www.washingtonpost.com/politics/2022/05/06/marjorie-taylor-greene-reelection-judge/">failed to prove</a> that she engaged in insurrection on Jan. 6, 2021</p>
<p>“The evidence in this matter is insufficient to establish that Rep. Greene … ‘engaged in insurrection or rebellion’ under the 14th Amendment to the Constitution,” Judge Charles Beaudrot wrote in his ruling.</p>
<p>The lawsuit against Greene claimed, for example, that she frequently referred to the protest effort against <a href="https://www.washingtonpost.com/politics/2021/10/26/marjorie-taylor-greene-says-jan-6-riot-was-line-with-declaration-independence/">the 2020 presidential election</a> as “our 1776 moment.” </p>
<p>This reference, lawyers argued, is a clear allusion to – indeed, code for – a violent overthrow of the existing government. </p>
<p>They claimed Greene had, at a minimum, given aid or comfort to enemies of the United States or, at most, engaged in insurrection by deploying such rhetoric. </p>
<p>And, after her <a href="https://www.cnn.com/2022/04/22/politics/marjorie-taylor-greene-disqualification/index.html">most recent court hearings</a> on April 22, 2022, text messages <a href="https://www.cbsnews.com/news/marjorie-taylor-greene-martial-law-mark-meadows-text-messages/">surfaced</a> in which she asked about the possibility of President Donald Trump’s declaring <a href="https://news.yahoo.com/marjorie-taylor-greene-dancing-around-the-truth-regarding-martial-law-text-lawyer-says-234519755.html">martial law</a>.</p>
<p>In the text, which was uncovered by the <a href="https://january6th.house.gov/">House select committee</a> investigating the events of Jan. 6, <a href="https://news.bloomberglaw.com/us-law-week/greene-accused-of-misleading-court-about-call-for-martial-law">Greene told</a> then-White House Chief of Staff <a href="https://www.usatoday.com/story/news/politics/2022/04/25/mark-meadows-texts-cnn-jan-6/7442333001/">Mark Meadows</a> that some members of Congress were saying in a private chat group that “the only way to save our Republic is for Trump to call for Marshall (sic) law. I don’t know on those things. I just wanted you to tell him.”</p>
<p>Greene argued that <a href="https://www.nytimes.com/2022/04/22/us/politics/marjorie-taylor-greene-jan-6-insurrectionist.html">her statements</a> and social media posts encouraged lawful protest by those who believe that the 2020 election was stolen. </p>
<p>The <a href="https://constitution.congress.gov/browse/amendment-1/">First Amendment</a>, she argued, allows for a broad range of free and unfettered speech, particularly political speech. </p>
<p>Greene also <a href="https://www.nbcnews.com/politics/congress/marjorie-taylor-greenes-lawyers-say-no-recollection-martial-law-text-m-rcna26575">testified under oath</a> that she had no knowledge that any protester intended to disrupt the joint session of Congress that had convened to count the electoral votes. </p>
<p>In response to many of the questions posed to her, she claimed more than 50 times during her hearing that <a href="https://www.vanityfair.com/news/2022/04/marjorie-taylor-greene-january-6-testimony">she didn’t recall</a>.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/Bv25QC6JLSE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Marjorie Taylor Greene testifies she doesn’t recall her actions during Jan. 6.</span></figcaption>
</figure>
<p>Greene <a href="https://www.newsweek.com/marjorie-taylor-greene-trolled-perjury-says-she-cant-remember-1700277">further testified</a> that while she did encourage people to come to Washington, D.C., for a peaceful march, she did not assist any protester in navigating through the Capitol complex, as some have alleged.</p>
<h2>Forgiving rebel soldiers</h2>
<p>Section 3 of the 14th Amendment was passed shortly after the Civil War in 1866 to bar Confederates from federal government positions. But that ban didn’t last long.</p>
<p>A <a href="https://www.archives.gov/files/research/naturalization/411-confederate-amnesty-records.pdf">blanket amnesty</a> for former Confederate soldiers was passed in 1872, making the vast majority of the rebels again eligible for office. In 1898, the prohibition was removed for <a href="https://conservancy.umn.edu/bitstream/handle/11299/221946/02%20Magliocca.pdf?sequence=1&isAllowed=y#:%7E:text=See%20Act%20of%20June%206,is%20hereby%20removed.%E2%80%9D">the last few hundred</a> former Southern congressmen and senators. </p>
<figure class="align-center ">
<img alt="A white man in a wheelchair is on stage during a rally before hundreds of people." src="https://images.theconversation.com/files/460656/original/file-20220501-56362-vmfrxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/460656/original/file-20220501-56362-vmfrxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460656/original/file-20220501-56362-vmfrxi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460656/original/file-20220501-56362-vmfrxi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460656/original/file-20220501-56362-vmfrxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460656/original/file-20220501-56362-vmfrxi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460656/original/file-20220501-56362-vmfrxi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">GOP Rep. Madison Cawthorn of North Carolina speaks before a rally for former U.S. President Donald Trump on April 9, 2022, in Selma, North Carolina.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-madison-cawthorn-speaks-before-a-rally-for-former-u-s-news-photo/1239877345?adppopup=true">Allison Joyce/Getty Images</a></span>
</figcaption>
</figure>
<p>Cawthorn’s attorney, James Bopp Jr., <a href="https://www.wect.com/2022/03/04/federal-judge-shuts-down-attempt-keep-madison-cawthorn-off-ballots/">argued that the Amnesty Act of 1872</a> nullified Section 3 of the 14th Amendment and allows Cawthorn to seek election in the upcoming May 17, 2022, GOP primary. </p>
<p>U.S. District Judge Richard Myers <a href="https://news.bloomberglaw.com/ballots-and-boundaries/insurrectionist-challenge-to-cawthorn-run-blocked-by-u-s-judge">agreed and dismissed</a> the case against Cawthorn. The district judge ruled that the Amnesty Act of 1872, which exempted Confederates from proscriptions of Section 3, is still in force and shields Cawthorn from being prevented to run for office. </p>
<p>Unlike the case in North Carolina, the case against Greene in Georgia was allowed to proceed by a federal judge there. On April 18, 2022, U.S. District Judge Amy Totenberg <a href="https://www.npr.org/2022/04/19/1093479545/federal-judge-says-georgia-voters-can-challenge-greenes-reelection-run">denied Greene’s motion</a> to block the case against her and best summed up the constitutional morass the cases have raised.</p>
<p>“This case,” Totenberg <a href="https://www.newsweek.com/marjorie-taylor-greene-re-election-disqualified-judge-ruling-january-6-republicans-1698789">wrote in her 73-page ruling</a>, “involves a whirlpool of colliding constitutional interests of public import.” Greene <a href="https://www.pbs.org/newshour/politics/rep-marjorie-taylor-greene-appeals-ruling-allowing-eligibility-challenge">has appealed</a> that decision.</p>
<h2>Protected free speech</h2>
<p>Political speech has – and deserves – special protection. To protest the government, even using strong, unpleasant or unpopular language, is central to the protections afforded by the First Amendment. </p>
<figure class="align-center ">
<img alt="Crowds of people waving Trump banners and American flags gather outside the Capitol on Jan. 6, 2021." src="https://images.theconversation.com/files/460657/original/file-20220501-12-u7quvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/460657/original/file-20220501-12-u7quvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460657/original/file-20220501-12-u7quvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460657/original/file-20220501-12-u7quvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460657/original/file-20220501-12-u7quvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460657/original/file-20220501-12-u7quvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460657/original/file-20220501-12-u7quvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protesters gather near the Capitol and halt a joint session of the 117th Congress on Jan. 6, 2021, in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-gather-storm-the-capitol-and-halt-a-joint-news-photo/1230458732?adppopup=true">Kent Nishimura / Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p>As such, courts tend to cast a wide net when defining speech covered by the First Amendment. </p>
<p>In addition to the First Amendment limitations, I think there is something anti-democratic about prohibiting a candidate from even running for office. </p>
<p>The notion that voters get to choose their elected representatives through free and fair elections represents a principle at the core of American democratic traditions. </p>
<p>To remove the voters’ ability to choose those whom they wish to elect to public office requires a weighty justification, and courts have long ruled this way. While aiding and abetting an insurrection is such a justification, it is an open question whether Greene’s conduct fits within the definition of Section 3 of the 14th Amendment.</p>
<p>Clearly, had Greene charged the Capitol with a weapon demanding that Congress seat President Trump, her actions would be clear and her disqualification warranted. But instead of weapons and storming, Greene deployed words and electronic posts. </p>
<p>The distinction makes a difference. </p>
<p>In my view, given the First Amendment’s robust protection of speech, to bar a candidate from running for office requires evidence of intent to <a href="https://news.bloomberglaw.com/us-law-week/greene-accused-of-misleading-court-about-call-for-martial-law">engage in insurrection</a> in far greater proportion than what has thus far been presented in the case against Greene. </p>
<p>Even Greene’s call for martial law likely is not enough. Bizarre and wrongheaded statements are protected by the First Amendment just as cogent and thoughtful ones are.</p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/181905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ronald S. Sullivan Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 14th Amendment banned Confederates from public office. But the rebels later received an amnesty that now might save GOP members from prosecution for their roles in the Jan. 6 insurrection.Ronald S. Sullivan Jr., Professor of Law, Harvard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1823792022-05-04T00:03:07Z2022-05-04T00:03:07ZAbortion right guaranteed by Roe will be replaced by state power if the Supreme Court adopts the leaked Alito opinion<figure><img src="https://images.theconversation.com/files/461042/original/file-20220503-11804-bdaw6v.jpeg?ixlib=rb-1.1.0&rect=18%2C9%2C6062%2C4029&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion rights battles look set to go from the Supreme Court to statehouses.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-choice-protester-left-and-an-anti-abortion-protesters-news-photo/1240412950?adppopup=true">Amanda Andrade-Rhoades/For The Washington Post via Getty Images</a></span></figcaption></figure><p>Draft opinions circulated among Supreme Court justices are meant to allow for deliberation and editing before a final version is released. They are not the last word, nor ready for public reaction.</p>
<p>But on the evening of May 2, 2022, <a href="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473">Politico published</a> a bombshell: a leaked <a href="https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf">draft of an opinion</a>, written by Justice Samuel Alito, that overturns <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a> and <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a> – the two rulings that gave constitutional protection to the abortion right. </p>
<p>While the final text of the opinion in the case of <a href="https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/">Dobbs v. Jackson</a> may be somewhat different, the meaning of the current draft is clear. First, the powers of individual states to determine whether abortions are legally available are increasing. Second, the Supreme Court’s barriers for overruling a precedent are decreasing.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of men and women protesting near a city building in the winter, holdings signs that say 'Love life' and 'Everyone should have a birthday.'" src="https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=410&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=410&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=410&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=515&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=515&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=515&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An estimated 5,000 people marched around the Minnesota Capitol building in St. Paul on Jan. 22, 1973, protesting the U.S. Supreme Court’s Roe v. Wade decision against state laws that criminalized abortion.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MINNEAPOLISANTIABORTIONRALLY/4483f8b574e4da11af9f0014c2589dfb/photo?Query=Roe%20V.%20Wade&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=428&currentItemNo=0">AP photo</a></span>
</figcaption>
</figure>
<h2>State by state voting</h2>
<p>Under American constitutional democracy, many decisions are made by majority rule, accomplished through elections. This applies to routine regulations like drug laws or speed limits. </p>
<p>But other decisions are beyond the reach of majorities and protected by individual rights guaranteed under the Constitution. Under Roe v. Wade, the abortion decision fell into the category of rights. </p>
<p>But the leaked draft opinion moves abortion from being a constitutionally guaranteed right to an act whose legality is determined by state laws. </p>
<p>That means it falls under majority rule, determined by the citizens of each state through their elected state legislators. Alito is saying that when the Constitution does not recognize a clear right, the people must elect representatives that share their view rather than appeal to courts.</p>
<p>The Alito draft repeats its core holding several times: The right recognized in Roe v. Wade “has no basis in the Constitution’s text or in our Nation’s history.”</p>
<p>The court that decided Roe, Alito writes, “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves to the people.” Therefore, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”</p>
<h2>Is there a constitutional right?</h2>
<p>Roe in 1973 and Casey in 1992 determined the right to an abortion was found in a combination of protections recognized by the Constitution. </p>
<p>These include the <a href="https://constitution.congress.gov/browse/amendment-4/">Fourth Amendment’s</a> protections against state intrusion, and <a href="https://constitution.congress.gov/browse/amendment-9/">the Ninth Amendment’s</a> recognition of non-enumerated rights, or “others retained by the people.” The most prominent justification in those rulings is <a href="https://constitution.congress.gov/browse/amendment-14/">the Fourteenth Amendment’s</a> protection against deprivation of “life, liberty, or property, without due process of law.” Roe grounded the abortion right in a broader right of privacy, while Casey added an emphasis on reproductive autonomy and bodily integrity.</p>
<p>In Alito’s view, Roe “was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” His draft concludes that Roe’s “message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”</p>
<p>The standard the Supreme Court has employed to recognize a right not specifically stated in the Constitution’s text has been whether it is <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701">“deeply rooted in this Nation’s history and tradition.”</a> Alito’s draft demands historical evidence of political assertions, judicial rulings or public laws that demonstrate the existence of the right.</p>
<p>But Alito’s review of the history argues that the opposite is the case: There is no evidence of an established right and there are, instead, many examples of public restrictions. A 30-page appendix lists all of the state laws outlawing or regulating abortion passed between 1825 and 1952. He concludes that “until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”</p>
<p>An important part of the draft ruling focuses on the question of who has the power to determine <a href="https://theconversation.com/supreme-court-could-redefine-when-a-fetus-becomes-a-person-upholding-abortion-limits-while-preserving-the-privacy-right-under-roe-v-wade-169236">prevailing social facts</a> as well as protected legal principles. </p>
<p>At what point a fetus becomes a person – and as such a holder of rights – is a long-standing dispute at the heart of the abortion debate. This is a crucial aspect of the conflict because a woman’s rights to autonomy and liberty may be limited if other rights held by other persons are involved. But it has not been clear who has the power to make that determination.</p>
<p>Roe – 50 years ago – and Casey – 30 years ago – said that the <a href="https://www.pewresearch.org/religion/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/">court should set a national standard</a> for recognizing fetal personhood. Casey established <a href="https://www.washingtonpost.com/business/fetal-viability-and-the-fate-of-abortion-laws-in-us/2022/05/03/d83c4440-cad5-11ec-b7ee-74f09d827ca6_story.html">viability at around 24 weeks</a>, or the point at which fetal life is deemed to be self-sustaining outside the womb, as the point at which a state could recognize fetal rights and therefore restrict abortion. </p>
<p>But Alito argues that this specific standard “makes no sense” and that the previous rulings “provided no principled defense of the viability line.”</p>
<p>So Alito puts the decision about when a fetus becomes a person clearly in the hands of the elected representatives of each state: “In some states, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haired man in a suit, with wire glasses, looking thoughtful." src="https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">At his confirmation hearings in 2006 on Capitol Hill, U.S. Supreme Court nominee Judge Samuel Alito declined to call Roe v. Wade ‘settled law.’</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-nominee-judge-samuel-alito-answers-questions-news-photo/56578425?adppopup=true">David Hume Kennerly/Getty Images</a></span>
</figcaption>
</figure>
<h2>A weakened standard for overruling precedent</h2>
<p>The Supreme Court is reluctant to discard its previous rulings, <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">following precedent</a> unless there is a substantial reason to repudiate the old reasoning.</p>
<p>For <a href="https://supreme.justia.com/cases/federal/us/505/833/">30 years, the Casey ruling upholding Roe has been considered the “precedent on precedent</a>.” It established <a href="https://www.everycrsreport.com/reports/RL33172.html">four considerations for the legitimate discarding of a previous decision</a>: The ruling misunderstood the Constitution; it proved to be unworkable in practice; new facts had emerged; and whether or not citizens had shaped their life decisions grounded in the ruling, what is known as “reliance interests.” </p>
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<p>In overturning Roe, the draft opinion offers a new and weaker standard for overturning precedent. The most significant change is what Alito calls “the quality of reasoning.” Rulings that “looked like legislation,” that offered faulty history, or created standards unjustified by the Constitution can be overruled under Alito’s reasoning. This new standard leads to the draft’s conclusion that precedent “does not compel unending adherence to Roe’s abuse of judicial authority.”</p>
<p>Alito’s draft reverses Roe by weakening the law of precedent. This is likely to open up many other rulings for potential reversal, including on same-sex marriage and affirmative action.</p>
<h2>A future of state-level conflict</h2>
<p>We know that state legislatures will gain power if the final ruling resembles the leaked draft. What we don’t know is what each of them will do.</p>
<p>Some analyses estimate <a href="https://www.nytimes.com/2022/05/03/upshot/abortion-united-states-roe-wade.html">the number of states</a> that will outlaw abortion at around 25. That would effectively divide the nation evenly into abortion rights states and anti-abortion rights states. </p>
<p>This will no doubt increase the regional polarization and geographical sorting of Americans by culture and ideology. It will also likely create long-term conflict in states that are divided by ideology and partisanship – including large states like Florida, Pennsylvania and Ohio. It sets up conditions for this one issue to dominate state elections and partisan battles for years to come.</p>
<p>Some states will likely attempt to <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4032931">restrict their own citizens from traveling</a>, and abortion rights states will attempt to aid other citizens to travel to their territory. </p>
<p>How the Supreme Court will react to such laws is unclear. But what is clear is that the Alito draft will return power over abortion and potentially other issues to the state level, raising the stakes and the bitterness of local democracy throughout the United States.</p><img src="https://counter.theconversation.com/content/182379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If the Supreme Court guts landmark rulings that established a constitutional right to abortion, the legal struggle will shift to statehouses and state courtrooms.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1692362021-11-22T19:08:03Z2021-11-22T19:08:03ZSupreme Court could redefine when a fetus becomes a person, upholding abortion limits while preserving the privacy right under Roe v. Wade<figure><img src="https://images.theconversation.com/files/432927/original/file-20211119-13-13f0qam.jpeg?ixlib=rb-1.1.0&rect=23%2C5%2C3970%2C2652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court hears a case on Dec. 1, 2021, regarding a Mississippi abortion law that poses a legal challenge to Roe v. Wade. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-on-september-25-2021-in-washington-dc-news-photo/1235502819?adppopup=true">(Photo by Stefani Reynolds/Getty Images</a></span></figcaption></figure><p>Since the Supreme Court recognized <a href="https://www.oyez.org/cases/1971/70-18">a constitutional right to abortion</a> almost 50 years ago, a powerful <a href="https://www.politico.com/news/magazine/2021/06/13/anti-abortion-progressive-roe-v-wade-supreme-court-492506">legal movement</a> has sought to <a href="https://fedsoc.org/commentary/publications/the-gordian-knot-of-abortion-jurisprudence">overturn the ruling</a>, while abortion rights advocates have fought to protect it. </p>
<p>On Dec. 1, 2021, <a href="https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/">the court is hearing a case</a> many believe will force the conservative justices — who now command a majority of the court — to decide if they will strike down Roe v. Wade or uphold the long-standing <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">precedent</a>.</p>
<p>There is a third path the justices could take. The court may focus its ruling on a more neglected aspect of the ruling in Roe — the court’s understanding of the facts of fetal personhood.</p>
<h2>Roe v. Wade is not a monolith</h2>
<p>There are two separate rulings in Roe:</p>
<p>1) The Constitution protects a right to privacy, which encompasses the abortion decision.</p>
<p>2) A fetus is not a person in the early stages of pregnancy. Personhood emerges around the time of viability at approximately 6 months, which justifies a compelling state interest at that point.</p>
<p>This is why <a href="https://www.usnews.com/news/best-states/articles/a-guide-to-abortion-laws-by-state">individual states are forbidden under current rulings from outlawing abortions in the first or second trimester of pregnancy</a>, but can make the procedure illegal during the third trimester after the viability of the fetus.</p>
<p>The upcoming debate at the Supreme Court is less about the existence of the abortion right and more about the second ruling in Roe v. Wade in 1973 — that the right is limited by the emerging <a href="https://theconversation.com/when-human-life-begins-is-a-question-of-politics-not-biology-165514">personhood of a fetus</a>.</p>
<p>The State of Mississippi has redefined the emergence of <a href="https://www.nytimes.com/article/mississippi-abortion-law.html">personhood to be at 15 weeks</a>, not 24, and outlawed abortions prior to this point.</p>
<p>Everything hinges on the judgment of personhood.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A young man in front of the US Supreme Court holds up a model of a fetus a bit bigger than his hand." src="https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=409&fit=crop&dpr=1 600w, https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=409&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=409&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=515&fit=crop&dpr=1 754w, https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=515&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/432933/original/file-20211119-24-13ffkyw.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=515&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An anti-abortion activist holds up a model of a fetus during a protest in front of the U.S. Supreme Court on June 22, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-life-activist-holds-up-a-model-of-a-fetus-during-a-news-photo/1251340428?adppopup=true">Photo by Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<h2>Determining the facts of when life begins</h2>
<p>When the Supreme Court considers how constitutional rights apply to the facts of our society, they are often forced to rule on what those broad <a href="https://www.journals.uchicago.edu/doi/full/10.1086/687394">prevailing facts</a> are. The justices could cite experts, employ their own perceptions or a third option: allow diverse democratic decisions through state legislatures, what could be called the <a href="https://www.scotusblog.com/2016/09/academic-highlight-marietta-and-farley-on-the-courts-reliance-on-social-facts-to-decide-constitutional-cases/">federalism of facts</a>.</p>
<p>In Roe, the core factual question was whether a fetus is a person—a human who holds rights and hence cannot be killed lawfully by another person.</p>
<p>The court, ruling in 1973, recognized the problem that, “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf#page47">the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer</a>.”</p>
<p>But the justices were nonetheless compelled to do so. The court ruled that “<a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf#page=50">the unborn have never been recognized in the law as persons in the whole sense</a>.” Therefore, “the word ‘person,’ as used in the 14th Amendment, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf#page=46">does not include the unborn</a>.”</p>
<p>However, the court saw the personhood of a fetus as developing during the course of a pregnancy. Therefore, “it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf#page=47">that of potential human life</a>, becomes significantly involved.”</p>
<p>The court concluded that “with respect to the State’s important and legitimate interest in potential life, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf#page=51">the ‘compelling’ point is at viability</a>.”</p>
<p>This means that in the early stages of pregnancy, abortion cannot be outlawed, but “<a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf#page=51">if the State is interested in protecting fetal life after viability</a>, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two women wearing elegant clothes and standing close together outside the Supreme Court." src="https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=912&fit=crop&dpr=1 600w, https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=912&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=912&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1146&fit=crop&dpr=1 754w, https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1146&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/432934/original/file-20211119-22436-1pzunc7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1146&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Norma McCorvey, left, who was Jane Roe in the 1973 Roe vs. Wade Supreme Court case, with her attorney, Gloria Allred, outside the Supreme Court in April 1989, where they observed arguments in a case that could have overturned Roe vs. Wade – but didn’t.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/STILLWAITINGDECISION/8012bf7061e5da11af9f0014c2589dfb/photo?Query=Norma%20McCorvey&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=19&currentItemNo=18">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>Why viability?</h2>
<p>There is a <a href="https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1105&context=facpub">long-standing myth</a> that the <a href="https://www.nytimes.com/1999/03/05/us/justice-blackmun-author-of-abortion-right-dies.html">author of Roe – Justice Harry Blackmun</a>, who had served for many years as chief counsel for the Mayo Clinic – had done copious medical research and come to the conclusion of viability as the emergence of personhood. </p>
<p>Linda Greenhouse, a longtime Supreme Court reporter for The New York Times, wrote the definitive <a href="https://us.macmillan.com/books/9780805080575/becomingjusticeblackmun">biography of Blackmun</a>, which clearly demonstrates that this was not the case. Blackmun preferred the point of quickening – when the fetus first begins to move, at around the end of the first trimester – as the emergence of personhood.</p>
<p><a href="https://www.justfacts.com/abortion.blackmun.asp">In a memo to the justices in November 1972</a>, he wrote that the end of the first trimester “is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” </p>
<p><a href="http://www.davidgarrow.com/File/DJG%202000%20AmLawRoevWadeLFP.pdf">He later wrote</a>, “I could go along with viability if it could command a court,” but would “like to leave the states free to draw their own medical conclusions with respect to the period after three months and until viability.” In Greenhouse’s telling, it was Justices William Brennan and Thurgood Marshall who urged viability as the court’s standard, to which Blackmun eventually agreed.</p>
<h2>The court’s options</h2>
<p>As a <a href="https://link.springer.com/book/10.1007/978-3-030-53851-4">close observer of the court</a>, I believe the justices have three options rather than two:</p>
<p>• Maintain Roe fully, solidifying abortion rights.</p>
<p>• Overturn Roe entirely, ending all abortion rights.</p>
<p>• Focus only on the specific factual question of the Mississippi law – when does personhood emerge? – allowing individual states to determine that line for themselves.</p>
<p>I believe this last approach may be the likely result for several reasons. The Roberts Court tends to move incrementally rather than in bold strokes. The ruling on social fact alone upholds the Mississippi law but does not strike down the core right recognized in Roe. Finally, this approach allows the justices to reinforce a constitutional principle favored by conservatives – <a href="https://constitutioncenter.org/interactive-constitution/learning-material/federalism">federalism</a>, which is the freedom of states to exercise their own judgment on questions the Constitution does not assign to the national government.</p>
<p>The court will decide whether the justices will affirm a national standard for this disputed social fact, or whether individual states may decide their own definition, allowing diversity in the boundaries of personhood, and the regulation of abortion, throughout the country.</p>
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<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The upcoming debate at the Supreme Court is less about the existence of the right to abortion and more about how that right is limited by the emerging personhood of a fetus.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.