In the run-up to the inauguration of Donald J. Trump as 47th president of the United States, political activists, frustrated by the fact that Kamala Harris lost the election, have attempted to revive the argument that the Fourteenth Amendment precludes Trump from taking office. They rely on a decision of the Colorado Supreme Court concerning the events of January 6, 2021, where the court stated that, “the [Colorado District] court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three [of the Fourteenth Amendment].” The Colorado Supreme Court ruled that:
- The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.
- The district court did not err in concluding that the events at the US Capitol on January 6, 2021, constituted an “insurrection.”
- The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.
- President Trump’s speech inciting the crowd that breached the US Capitol on January 6, 2021, was not protected by the First Amendment.
Despite the Colorado decision having been subsequently reversed by a unanimous United States Supreme Court in Trump v. Anderson, 601 U.S. 100 (2024), the lawfare activists still feel they have an arrow left in their Fourteenth Amendment quiver. They depict Trump’s Supreme Court victory as largely dicta with no legal force. They clutch at the straws thrown by the Court’s liberal members, who suggested that the majority had gone too far in expressing a view on the role of Congress in upholding the Fourteenth Amendment (that is, activists argue that the Supreme Court dicta on this point should not be read as part of its binding decision).
In this vein, the New York Times reported that, “The court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — expressed frustration at what they said was the majority’s needless overreach in a joint concurring opinion.” The liberal members said that the majority had needlessly chosen to “decide novel constitutional questions to insulate this Court and petitioner from future controversy,” and that, “In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed.” The liberal judges went on to add that:
Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oath breaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision. Because we would decide only the issue before us, we concur only in the judgment.
Trump’s political opponents derive some comfort, however tenuous, from those barbed words. Paradoxically, the liberal members of the Supreme Court, who usually favor an activist judicial role, in this case called for judicial restraint—an approach that potentially creates scope for further scheming by Trump’s political enemies seeking to relitigate the events of January 6 as many times as possible. In a further paradox, the longer-term constitutional implications of the majority opinion were overshadowed by widespread relief that the Supreme Court had averted an election crisis, and that the liberal justices had somehow managed to refrain from dissenting even though they disagreed with the majority on key issues. Justice Barrett said:
The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.
The longer-term implications for the balance of power between federal and state authority merit closer consideration, as the majority emphasized that the Fourteenth Amendment vests power in the federal court rather than in the state courts. As Ilya Somin observes,
The per curiam opinion emphasizes the need for uniformity in determining eligibility for federal office and argues that states lack the power to make such determinations…
This argument ignores the long-standing role of states in enforcing and adjudicating other constitutional qualifications for candidates for federal office.
This constraint on state power may have had the advantage of avoiding inconsistent state decisions about Trump being excluded from the ballot, but, as Somin points out, “Concerns about a potential “patchwork” of conflicting state rulings are ultimately policy objections to the Constitution’s decentralized state-by-state scheme of election administration.” This undermines the constitutional tradition of decentralized government power. As Donald Livingston has argued, decentralized government was the original vision of America:
America began as a highly decentralized regime of independent moral and political communities jealous of their liberty. These political societies created a central government as their agent and endowed it with enumerated powers. This government was only a speck on the political landscape and its presence was scarcely felt in everyday life. From 1865 to 1965 it underwent a transformation, emerging as the most consolidated and centralized military and financial power in history.
From its inception, the Fourteenth Amendment was instrumental in that consolidation of centralized power, and the decision of the Supreme Court in Trump v. Anderson further entrenches that trend.
Roots of the Fourteenth Amendment
The NYT commentary on Trump v. Anderson noted the context in which the Fourteenth Amendment arose: “to deal with the problem of former Confederates holding positions of government power.” However, there is much more to the political origins of this amendment. While its legislative history cannot be covered in this brief article, a key point to note is that the amendment was not simply about keeping Confederates out of office—the more ambitious goal was to consolidate power in the federal government. According to William A. Dunning in his book Reconstruction, Political and Economic 1865-1877, the Fourteenth Amendment was seen by Radical Republicans as a prerequisite to reconfiguring the balance of power between state and federal governments.
One of the challenges the radicals faced, as Dunning explains, was President Johnson’s respect for the “old-time Constitution.” Johnson did not think Congress had power “to exclude states from representation” as the radicals proposed in an attempt to force the Southern states to accept the diminished scope of state power. Radicals feared that any legislative reform would be bypassed by Southern legislators or vetoed by President Johnson, who indeed vetoed the Freedmen’s Bureau Bill of 1866 and the Civil Rights Act of 1866. President Johnson objected to these radical bills on grounds that they amounted to unconstitutional federal encroachment on states’ jurisdiction. As explained by Dunning, Johnson’s view was:
...that the [Civil Rights] bill embodied an unheard-of intrusion of the Federal government within the sphere of the states, and was a stride towards centralization. He stood stiffly on his belief that the situation in the South involved no conditions which required for their treatment a break with the ancient political system.
Constitutional amendments served as a vehicle through which, as Dunning puts it, “the majority in Congress proposed to appeal to the people against the policy of the president.” This concern with the constitutional balance of power is also reflected in various Supreme Court decisions cited in Trump v. Anderson:
Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 59 (1996).
Similarly, Forrest McDonald observes that,
Whatever else the Radicals had in mind in pushing through the Reconstruction Amendments—their motives were diverse and conflicting—it is clear that some of them, at least, intended that the Fourteenth should greatly increase the powers of Congress at the expense of the states.
As Dunning explains, the plan behind the Fourteenth Amendment was,
…in essence, to deny the privileges of statehood to the southern communities until the guarantee of certain results of the war, as the North conceived them, should be incorporated in the Constitution, and should be formally consented to by the southerners themselves.
Dunning argues that in pursuit of this goal, the Reconstruction Committee paid scant regard to the constitutional debates and instead emphasized the need to quell the rebellious spirit of the South. The Supreme Court in Trump v. Anderson mentions an example of this, the “statement of Rep. Stevens, warning that without appropriate constitutional reforms ‘yelling secessionists and hissing copperheads’ would take seats in the House.” By spinning the case for constitutional revolution in that way, it was hoped to secure popular support for excluding both the President and the Southern states in pushing through plans for the expansion of federal authority. Dunning explains:
The majority report evaded any thoroughgoing discussion of the constitutional questions of state status, in which the strength of the president’s case lay, but put the chief stress on the right of Congress to say the final word as to the restoration of the insurgent communities, and on the evidence that the white people of the South were still rebellious and impenitent in spirit, bent on oppressing the freedmen and white Unionists, and eager for representation in Congress only in the hope of regaining thus the power and influence which they had lost by the resort to arms.
Although the radicals depicted their reconstruction proposals as a corollary of their victory in the war, President Johnson correctly understood that these proposals amounted to nothing short of a constitutional revolution. Allen Mendenhall observes in his analysis of the Fourteenth Amendment that,
Few issues divide libertarians the way the Fourteenth Amendment to the United States Constitution does…. On the one side are those who praise the amendment for circumventing the power of the states to prejudice, police, regulate, or otherwise use force to impose discriminatory laws on their citizens. On the other side are those who, while acknowledging the problematic nature of state misconduct and wrongdoing, are not willing to condone the transfer of power from states to the federal government, and in particular to the federal judiciary.
This controversy illustrates the extent to which political activists drive a coach and horses through the Constitution if it stands in the way of their goals—precisely as President Johnson, in his failed attempt to defend the “old-time Constitution,” had feared, and precisely as attempted by the Democrats in their recent attacks on Donald Trump.
