The final published version of my article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson" (Cato Supreme Court Review) is now up on SSRN, and available for downloading. Here is the abstract:
In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the majority ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy. And even the unanimity is undermined by four justices' rejection of key parts of the majority's reasoning.
Section 3 states that "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." Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.
In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for "insurrection." Part III considers the question of whether the January 6 attack qualifies as an "insurrection," and—more briefly—whether Trump "engaged" in it. The answers to both questions are "yes," though the second is a closer call than the first. Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court's effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.
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