The Supreme Court Just Erased Part of the Constitution

[maestrob]

March 4, 2024

By David French

Opinion Columnist

As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.

In the aftermath of the oral argument last month, legal observers knew with near-certainty that the Supreme Court was unlikely to apply Section 3 to Trump. None of the justices seemed willing to uphold the Colorado court’s ruling, and only Justice Sonia Sotomayor gave any meaningful indication that she might dissent. The only real question remaining was the reasoning for the court’s decision. Would the ruling be broad or narrow?

A narrow ruling for Trump might have held, for example, that Colorado didn’t provide him with enough due process when it determined that Section 3 applied. Or the court could have held that Trump, as president, was not an “officer of the United States” within the meaning of the section. Such a ruling would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurrectionists from the House or Senate and from all other federal offices.

A somewhat broader ruling might have held that Trump did not engage in insurrection or rebellion or provide aid and comfort to the enemies of the Constitution. Such a ruling would have sharply limited Section 3 to apply almost exclusively to Civil War-style conflicts, an outcome at odds with the text and original public meaning of the section. It’s worth noting that, by not taking this path, the court did not exonerate Trump from participating in an insurrection.

But instead of any of these options, the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action. This argument is rooted in Section 5 of the amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

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But Section 5, on its face, does not give Congress exclusive power to enforce the amendment. As Justices Elena Kagan, Sotomayor and Ketanji Brown Jackson pointed out in their own separate concurring opinion, “All the Reconstruction amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.” While Congress may pass legislation to help enforce the 14th Amendment, it is not required to do so, and the 14th Amendment still binds federal, state and local governments even if Congress refuses to act.

But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.

It’s extremely difficult to square this ruling with the text of Section 3. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”

In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.

As Kagan, Sotomayor and Jackson point out, this approach is also inconsistent with the constitutional approach to other qualifications for the presidency. We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation. We can enforce the two-term presidential term limit without congressional enforcement legislation. Section 3 now stands apart not only from the rest of the 14th Amendment, but also from the other constitutional requirements for the presidency.

In one important respect, the court’s ruling on Monday is worse and more consequential than the Senate’s decision to acquit Trump after his Jan. 6 impeachment trial in 2021. Impeachment is entirely a political process, and the actions of one Senate have no bearing on the actions of future Senates. But a Supreme Court ruling has immense precedential power. The court’s decision is now the law.

It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all.

https://www.nytimes.com/2024/03/04/opin ... ution.html

[Rach3]

Thanks for this as I no longer subscribe to NYT.

French is correct.There is also no logical or text basis for SCOTUS to hold as it did that Sec. 3 is self-executing as far as state offices are concerned.The Federal Constitution should have as much concern with an insurrectionist being able to serve as State Governor , legislator, or Court judge ( see, US Civil War ).

SCOTUS was simply to afraid to find the obvious, that Trump committed insurrection and that the Colorado court record was sufficient to establish that fact.Trump could have testified in the Colorado proceedings. Chaos may well prove to be far more beneficial than peace in our time.

" There comes a time in the affairs of man when he must take the bull by the tail and face the situation." W.C. Fields

[Belle]

I notice that Biden ignored the conservative judges from the SC during his State of the Union Speech. Others in the public sphere have noticed what a diminished and nasty little man the President is. I saw Brett Kavanaugh standing there (probably having to grit his teeth, if truth be told) and ''the cadaver' just walked on by, like a zombie out of a Jacques Tournier horror flick. It was personal for old Joe.

What class, what style, what je ne sais quoi!!

[jserraglio]

What class, what style, what je ne sais quoi!!

Mighty white of you to admit you don’t know what you’re talking about. But the rest of your rant sounds like something inspired by ditzy Katie Britt's dud rebuttal of Biden from her kitchen-table last Thursday!!

That’s two cheer girls for dictatorship — one for Trump, the other for Orban!!!

[Holden Fourth]

As Trump has not been convicted of insurrection then any of the rhetoric in this opinion piece regarding Section 3 simply lacks relevance. This, surely, is the main reason that SCOTUS has not acted in regard to Section 3. To suggest that the constitution has effectively been changed is disingenuous. Only an act of Congress can change the constitution and that has not happened in a very long time from the research I’ve done.

[jserraglio]

To suggest that the constitution has effectively been changed is disingenuous. Only an act of Congress can change the constitution and that has not happened in a very long time from the research I’ve done.

Such an absolutist view of constitutional law is clearly open to challenge. SCOTUS' power to interpret the Constitution has in effect been the power to change it.

Just as he Fed has the power in effect to print new money, so too, for good and for ill, for ill of late, the Supreme Court can effectively make new law.

[Rach3]

To suggest that the constitution has effectively been changed is disingenuous. Only an act of Congress can change the constitution and that has not happened in a very long time from the research I’ve done.

Such an absolutist view of constitutional law is clearly open to challenge. SCOTUS' power to interpret the Constitution has in effect been the power to change it.

Just as he Fed has the power in effect to print new money, so too, for good and for ill, for ill of late, the Supreme Court can effectively make new law.

Correct,jserraglio.In fact,GOP has been complaining for years, ever since the Warren Court,that SCOTUS has re-written the Constitution. Alito said that in his abortion Dobbs ruling over-ruling " clearly wrong" Roe , Alito citing in part a witch-burning 16th Century demagogue for authority, and Thomas,in his concurrence in Dobbs, made clear he thinks earlier Courts have also re-written the Constitution with respect to other rights such as gay marriage.The Southern States felt same when Brown vs. Board was decided. In effect, the Constitution has been amended to now say : "Notwithstanding the other rights granted and enumerated herein, a woman shall have a right to an abortion only if her State of residence grants such a right."

The reason SCOTUS did not even mention " insurrection " in their recent Sec.3 ruling is that all were afraid to find Trump clearly is an insurrectionist and not qualified , and others knew they were writing Sec.3 out of the Constitution as no Congress would ever likely be able to agree upon the new laws SCOTUS claims are necessary before Sec.3 can be given ANY effect.

[Holden Fourth]

To suggest that the constitution has effectively been changed is disingenuous. Only an act of Congress can change the constitution and that has not happened in a very long time from the research I’ve done.

Such an absolutist view of constitutional law is clearly open to challenge. SCOTUS' power to interpret the Constitution has in effect been the power to change it.

Just as he Fed has the power in effect to print new money, so too, for good and for ill, for ill of late, the Supreme Court can effectively make new law.

So we're talking interpretation as opposed to change? Here, the law of precedent raises it's ugly head. Lawyers are extremely wary about setting legal precedent. I imagine they'd be even more wary if it involved constitutional change. If they weren't then the biggest issue for the US regarding the constitution would probably have been acted on ages ago - gun laws and the right of Americans to bear arms.

[jserraglio]

So we're talking interpretation as opposed to change?

The power to interpret implicates the power to change, just as the power to tax implies the power to destroy. The right to keep and bear arms has in fact been expanded by the Court's literal (i.e., textualist) reading of the fairly straightforward wording of the Second Amendment, reinforced by the unbroken train of court decisions and legislation that followed it.

No such unambiguous wording nor chain of precedent exists in the instance of the obscure Section III of the 14th Amendment. Consequently, it cries out for interpretation, and that necessarily involves the Court taking on the role of establishing what in practice becomes new law.

In fact, the Supreme Court has a long history of issuing decisions that altered the 14th Amendment — Dred Scott (1857), Cruikshank (1876), Plessy (1896), and Brown (1954) are other cases of it doing just that.

The Court’s power to tell the nation what the 14th Amendment means for all practical purposes amounts to the power to tell us with the force of law what it is.

Still another but more recent example of the Court effectively altering the Bill of Rights, this time by reinterpreting the 1st Amendment, was the Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) decision which weakened the separation of church and state.

Cf. this bitter complaint by the late Justice Antonin Scalia about judicial interpretation changing the Constitution. QTD from his dissent in Lawrence v. Texas (2003) which struck down Texas’s anti-sodomy law:

I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change.