Donald Trump’s packing of the supreme court, to which he appointed three members, to create a reliable conservative majority, has been hailed by the right as his greatest achievement. The Wall Street Journal editorial page has stated that the most important prospect of a second Trump term would be his appointment of federal judges in their mold. But Trump’s candidacy for that second term now poses an existential threat to the legitimacy of the court’s conservative majority.
The decision earlier this week by the Colorado supreme court disqualifying Trump from the state ballot strikes at more than Trump’s eligibility. It cuts to the core of the ideological doctrines of originalism and textualism that underpin the conservative majority’s entire jurisprudence. Originalism claims to divine the original intent of the country’s founders and interprets the constitution along those lines. Using cherry-picked, false and bad-faith history, originalism has been the pure pretext for overturning Roe, dismantling commonsense gun regulations, ending environmental regulation, gutting consumer protection and voiding voting and civil rights.
Originalism is a recent contrivance, patched together as part of the “gameplan”, as Trump’s court whisperer, the Federalist Society’s Leonard Leo, describes it, of the capture of the courts to entrench the right’s agenda beyond the threat of adverse political tides for generations to come.
Textualism is the sister doctrine of originalism, providing snatches of text from the constitution divorced from social and legislative context as if in scriptural fundamentalism to undergird the reversal of rights. It claims that to interpret a law, a judge may examine the plain meaning of its text but nothing else. It works hand in hand with originalism to exclude inconvenient portions of the historical record from judicial consideration.
But now this politicized jurisprudence has turned on its inventors. If ever there is a legal ruling of ironclad constitutional reasoning that can be defended on originalist and textual grounds it is in Anderson v Griswold, the decision issued last week by the Colorado supreme court. The decision holds that Trump engaged in insurrection on 6 January 2021, and that he is therefore barred for running for president under section three of the 14th amendment.
Trump’s appeal to the supreme court creates a crisis for the entire conservative methodology. If the court denies certiorari, declining to rule on the case, or upholds the Colorado decision, Trump would face disqualification cases in states across the country, throwing the election into chaos. The Republican sponsors of the conservative court are panicked and enraged. The Wall Street Journal, the veritable mouthpiece of justices Clarence Thomas and Samuel Alito, is loudly decrying the Colorado “folly”.
The conundrum for the court is that it can rescue Trump only by shredding originalism and textualism. There is no more originalist and textualist case to be made than this one. But this time, the solidity of the case is not based on specious doctrine. Here the logic can rightfully be said to be rooted in history and the constitution.
Two leading conservative legal scholars, William Baude, of the University of Chicago law school, and Michael Stokes Paulsen, of the University of St Thomas law school, arguing on strict originalist grounds, state unequivocally that Trump is constitutionally barred from running for office. Section three of the 14th amendment prohibits anyone who has held public office sworn to uphold the constitution and who then engages “in insurrection or rebellion” from ever holding office again. The amendment, Baude and Paulsen demonstrate, is “binding”, “general”, “prospective” and “self-executing”, requiring “no implementing legislation”, and they say “disqualification is sweeping in its terms”.
The Colorado supreme court found, without disagreement, and by clear and convincing evidence, that Trump indeed engaged in insurrection on January 6. Consequently, the case is, on originalist and textual as well as historical grounds, open and shut. On the facts and the law, the court majority faces a brutal dilemma: either uphold Trump’s disqualification or shred the doctrine on which their conservative jurisprudence stands.
The only escape hatch, for the court and for Trump, would be a momentary, politically derivative expedient, such as asserting that Trump has been denied due process because he has not been criminally prosecuted for insurrection. Alternatively, the justices could seize upon what has become the media pundit’s panacea, that there are no disqualifications except the horserace itself, falsely invoking democracy as superior to the constitution, which defines American democracy. Or the court could claim that Trump ultimately has immunity from any charges of insurrection, placing the former president above the law. Yet, seizing on that sort of solution would contradict the constitutional nature of the disqualification, the stated intent of its framers and the historical record.
The due-process argument is less an escape hatch than a dead end. The notion that the court might relieve Trump because he is not, at least yet, convicted for the insurrection of January 6 would contradict the character of all constitutional disqualifications, which do not depend upon criminality. Mark Graber, of the University of Maryland school of law, the leading scholar on section three, has definitively shown that “Republicans insisted section three sets out a new qualification for office, not a punishment for a criminal offense”. Graber quotes the senator Lot M Morrill of Maine as representative of the overwhelming view of the 14th amendment’s framers, that there was “an obvious distinction between the penalty which the State affixes to a crime and that disability which the State imposes and has a right to impose against persons whom it does not choose to intrust with official station”.
Graber further quotes the senator Waitman Willey of West Virginia that section three was “not … penal in its character, it is precautionary”. Most importantly, Willey emphasized that the measure applied not just to the aftermath of the civil war, but was permanent: “It looks not to the past, but it has reference … wholly to the future. It is a measure of self-defense.”
Some pundits have offered up the widely ridiculed case In re Griffin, of 1869, as a vehicle for the court to evade its Trump tangle by holding that the 14th amendment imposes no disqualification since Congress never passed a law specifically about it. In that case, the chief justice, Salmon P Chase, stated that section three was not self-executing but required enabling legislation. His position directly contradicted the one he took the year before, in presiding over Confederate president Jefferson Davis’s treason trial, that section three was self-executing and that its punishment voided other charges against him – advice Chase himself offered to Davis while acting as the judge in the trial in which he dismissed the case.
Chase’s positions were “illogical and cannot be explained by legal analysis” according to Gerard N Magliocca, of the Indiana University school of law, the leading expert on the provision. Chase’s claim that section three was not self-executing was “unpersuasive”, “flawed” and marked by “inconsistency”. Baude and Paulsen deride Chase’s decision as “simply wrong … full of sleight of hand, motivated reasoning and self-defeating maneuvers” and said it “should be hooted down the pages of history, purged from our constitutional understanding of Section Three”.
Again, the historical background matters. Chase, former icon of radical Republicanism, was in 1869 attempting to win the Democratic party nomination for president. He had always been ambitious to be president, seeking the office continually since 1852. He had run a covert campaign against Lincoln’s re-election in 1864, its exposure prompting him to quit the cabinet as the secretary of treasury. Lincoln, who said of Chase’s ambition that he had “the presidential maggot in his brain”, named him chief justice. In 1869, at the time of In re Griffin, Chase had taken a southern tour to gain political support. The New York Herald editorialized that Chase “has been hailed as the coming man by the Southern conservatives”.
Citing In re Griffin, however, would be in the tendentious spirit of the supreme court’s ruling in Bush v Gore, which halted the counting of votes in Florida and delivered the presidency to George W Bush. That decision, written by justice Antonin Scalia, invoked the 14th amendment to assert that Bush would be unfairly disadvantaged if the vote counting proceeded. Privately, Scalia said of his ruling: “As we say in Brooklyn, a piece of shit,” according to Evan Thomas’s biography of Sandra Day O’Connor. If the court were to seize upon the thin reed of In re Griffin, it would be in the spirit of grabbing any available tool to achieve the results it seeks as in Bush v Gore, ie, “a piece of shit”.
Section three was adopted to prevent former leaders of the Confederacy from returning to control of the state and for federal governments to restore their power and rescind reconstruction. The Confederate vice-president, Alexander H Stephens, most prominently, was elected the US senator from Georgia, but under section three he was disqualified from holding the office. Stephens had been briefly arrested after the war, but never charged with a crime. Not a single one of the former Confederate leaders who were disqualified under section three were ever charged or tried, for insurrection or any other charge. Disqualification under the 14th amendment required no criminal conviction then and requires none now. It is a constitutional prerequisite for holding the presidency, no more or less than being 35 years old and native-born.
The senator Lyman Trumbull, of Illinois, one of the key figures in the passage of the 14th amendment, observed during the debate that the constitution “declares that no one but a native-born citizen of the United States shall be President … Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, because by the Constitution he is ineligible to the Presidency?” No criminal trial was required for disqualification.
If the supreme court were to decide that Trump must be tried and convicted of insurrection in order to be disqualified, it would severely undermine the intent of the Constitution as well as all precedents. If the court cites Chase’s In re Griffin, then it should reconcile it with Chase’s contrary position in the Jefferson Davis trial. Of course, this cannot be done. All of this would be Bush v Gore squared.
The drafters and supporters of the 14th amendment were explicit that the ban on insurrectionists included candidates for the presidency. In the first draft, the language provided that insurrectionists were excluded from holding “the office of President or Vice President of the United States, Senator or Representative in the national Congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate”.
The specific references to the president and vice-president were dropped, but only to be subsumed to identify a broader range of office-holders of “any office, civil or military”. The senator Reverdy Johnson of Maryland raised the question of the omitted mention of the president and vice-president in the floor debate in the Senate on 30 May 1866. Johnson had been the attorney general under President Zachary Taylor. “But this amendment does not go far enough,” he said. Morrill explained that the overarching language indeed covered those offices.
As it happens, no insurrectionist after the civil war ever ran for president until now. The closest anyone with an association to the Confederacy came was the nephew of James D Bulloch, the agent who ran the Confederate secret service operation in England. That nephew was Theodore Roosevelt, who was given a ring on the day of his inauguration in 1905 containing a hair that his secretary of state, John Hay, cut from Lincoln’s head on his deathbed when Hay was his personal secretary.
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Trump’s defense is that as president he was an officer, but not, as the Colorado supreme court ruled, “under the United States”. He was instead the government itself. L’État, c’est moi is not a constitutional principle, helas, except as claimed by Richard Nixon: “When the president does it, that means it’s not illegal.” Trump’s defense is malignant narcissism translated into legalese.
One of Trump’s apologists, Michael Mukasey, George W Bush’s former attorney general, writing in the Wall Street Journal, repeated Trump’s sophistry while adding that the phrase “officer” “refers only to appointed officials, not to elected ones”. But his invention is refuted by the plain historical record. As a textual matter, the Colorado ruling notes that the constitution mentions the president as an “office” 25 times, in clause after clause, as well as quoting Alexander Hamilton’s Federalist Paper No 69 as saying: “The President of the United States would be an officer elected by the people … .”
Trump himself as president has called himself an “officer”. When he criticized the justice department for issuing sentencing guidelines to be applied to the criminal convictions of his close associates Roger Stone and Mike Flynn, Trump tweeted it was a “miscarriage of justice”. In the spirit of impunity, he proclaimed: “I’m actually the chief law enforcement officer of the country.” In fact, the president is not. The attorney general is the chief law enforcement officer. Nonetheless, Trump recognized himself as an “officer”, presumably under the United States. (Shortly after the incident, he pardoned Flynn and commuted Stone’s sentence.)
Trump has also weighed in numerous times on the question of whether constitutional disqualification is self-executing. In his spurious and vile campaign claiming that Barack Obama was not a natural-born citizen, his birther lie, Trump stated on many occasions that if Obama could not prove his nativity, then he should be disqualified from holding office. There was no need for enabling legislation or a court ruling. “I think it’s an important fight because, you know, essentially you’re right down to the basics,” he told Fox News in 2012. “The answer is if you’re not born here, you can’t be president. So it’s not like, ‘Oh, gee, let’s not discuss it.’”
Trump repeated his belief that constitutional disqualification was self-executing in 2016 against the senator Ted Cruz of Texas, a Republican primary opponent, whom Trump falsely said was not a natural-born citizen and therefore could not hold the presidency. “I don’t want to win it on technicalities, but that’s more than a technicality. That is a big, big factor,” he said. The factor Trump hyped was a lie, but the “technicality” that disqualification is self-executing is not.
If section one of the 14th amendment, establishing natural birth in the US as a basis of citizenship, is self-executing, so is section three establishing disqualification for office on the basis of being an insurrectionist. Moreover, both of those provisions are as self-executing as the amendment that preceded them: the thirteenth amendment abolishing slavery. Lincoln called it “the king’s cure” as a self-executing constitutional measure to supersede and nationalize the Emancipation Proclamation, which was a military order and could not be sustained once the war ended. Once enacted, the thirteenth amendment went into effect. Slavery was abolished. Congress was given the power to enforce it.
Moreover, as the Colorado supreme court opinion pointed out, it is incorrect to conflate actions that are “textually committed” to Congress’s exclusive authority with actions that are merely “textually authorized”. Section three is still self-executing in the sense that the judiciary has the power to interpret and apply it, even if Congress has overlapping authority but has chosen not to legislate on the subject.
The Colorado supreme court decision makes clear the constitutional logic that inextricably links these civil war amendments. “There is no textual evidence that Congress intended section three to be any different” from the other amendments, the Colorado court states: “ … interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results. If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal … ”
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Some Trump defenders have bent history to say that there is no comparison between the events of January 6 and the civil war, the true insurrection that the framers of the 14th amendment had in mind. But bringing up the civil war only reinforces the already airtight case against Trump.
The motive behind Trump’s attempted coup and the secession of South Carolina and subsequent southern states that initiated the civil war were exactly the same: both of these events were driven by rejection of the results of a presidential election. Trump organized his coup to “stop the steal” before the election, just as the secessionists organized their actions before election day. The Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union stated on 24 December 1860, that its precipitating reason was “the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery”.
President-elect Lincoln expressed “real anxiety” about the electoral college certification on 13 February 1861. The general Winfield Scott stationed two batteries of artillery at the north portico of the Capitol and soldiers at the doors to check the credentials of everyone entering. Vice-President John C Breckinridge, who would later join the Confederacy as a general and secretary of war, presided with calm dignity. On January 6, the culmination of Trump’s coup, an attempt to disrupt the electoral college certification, there were more fatalities than in the bombardment of Fort Sumter on 12 April 1861. Nine people died in connection with the assault on the Capitol on January 6, five of them police officers, while one soldier died at Sumter during its evacuation. The insurrection of January 6 was an unprecedented violent and murderous event in its own right.
The court heard and accepted the detailed evidence of Trump’s pattern of incitement and violence surrounding the insurrection from an expert witness on political extremism, Peter Simi, a sociologist from Chapman University who has provided training to the FBI, the Department of Homeland Security and the Department of Justice. “The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” the Denver district court state judge Sarah Wallace ruled on 17 November. She dismissed his claim to free speech outright: “The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it and, on January 6, 2021, incited it. His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021.”
Trump’s defense argued that an insurrection must be defined as “against” the constitution, not “the United States”. The district court judge rejected this patent absurdity. Based on the facts, she ruled: “The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of ‘insurrection.’” Trump then attempted to evade judgment by splitting semantic hairs, claiming that “engagement” was not “incitement”, again rejected by the court as a distinction without a difference: “Having considered the arguments, the Court concludes that engagement under Section Three of the 14th Amendment includes incitement to insurrection.” Thus, Trump was adjudicated to be an insurrectionist. But the district court declined to define the president as an officer of the US under section three, kicking the question to the Colorado supreme court, which decided the matter.
Most importantly, Trump’s defense did not challenge the account heeded by the Colorado courts; nor did it present “alternative facts” about January 6, a Kellyanne Conway defense. It offered no objection to ruling that January 6 was an insurrection and that Trump is an insurrectionist. But that only reinforces the inescapability of Trump’s actions for the US supreme court majority.
In taking up Trump’s appeal, the US supreme court cannot review the basic facts. It cannot call witnesses on its own. It cannot hear new witnesses. It cannot declare the Colorado court’s conclusions erroneous on the facts. Indeed, given that Trump has not challenged the facts, he may not in fact have a true basis for an appeal. The court could let the Colorado decision stand on that ground. But if it takes up the appeal, it must find an interpretation that flies in the face of both the overwhelming history and the self-evident constitutional text. Supporting Trump’s free and full license above the law would in this case expose the conservative majority’s originalism as a hollow conceit.
If the court grants Trump a reign of impunity as well as total immunity for his past actions, it will also be opening the gate for his stated intention to abrogate the constitution to establish a dictatorship in the future. Section three, established as the “self-defense” of the republic for the future, will be rendered meaningless.
Sidney Blumenthal, the former senior adviser to president Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth
• This article was amended on 26 December 2023 because the date of the electoral college certification in 1861 was 13 February, not 13 January as an earlier version said.
