What Does Amendment 14, Section 3, Mean?
Just yesterday, the long-awaited Ukraine-Israel-Taiwan border funding deal was revealed. This post is not about that; I am still waiting to see just how many Republicans are willing to admit they have two daddies (Trump and Putin).
This post is about the argument surrounding the former’s eligibility for another term as president, and whether states can remove him from the ballot beforehand. Arguments on both sides naturally focus on Section 3 of the 14th Amendment. In point of fact, that section is much more powerful than Trump-defenders would have us believe. Yet it is also far less powerful than we Trump-critics would like.
What the Amendment Says … and Means … Maybe
The language in question is below.
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.
Trump defenders either insist this section has nothing to do with their idol, or that this can’t be enforced without Congressional action. On the latter, they found a friend in Jason Willick (WaPo). Willick cited the 1869 decision In re Griffin (which he mislabels, “Griffin’s case”), written by then-Chief Justice Salmon P. Chase.
Those following the Trump disqualification case closely know that Chase, appointed to the Supreme Court by President Abraham Lincoln in 1864, wrote the main judicial opinion on the 14th Amendment’s disqualification clause. Ratified in 1868, the amendment barred officeholders who “engaged in insurrection” from future office. Chase — as a lone justice “riding circuit” — ruled in an 1869 opinion known as “Griffin’s Case” that it would be infeasible to determine “what particular individuals are embraced” by the disqualification clause without a legal process prescribed by Congress. The next year, Congress passed legislation creating such a process.
Fast forward to 2024. There is a campaign to disqualify Trump from the presidency on the grounds that the Jan. 6, 2021, Capitol riot was an insurrection. Congress has said that those convicted of insurrection are disqualified from office under the 14th Amendment. But the Justice Department hasn’t even charged Trump with that crime. Trump’s opponents argue that states can or must remove him from ballots anyway, as Colorado has done.
Lincoln’s chief justice is standing in the way. For the disqualification campaign to succeed, Trump’s opponents must overcome Chase’s seminal 1869 Griffin opinion. If Chase was a reliable authority on the 14th Amendment, then the activist end run around convicting Trump with insurrection is dubious at best.
Much of the rest of the column defends Chase himself (he had his detractors long before this popped up). What Willick does not do is go into the specifics of Griffin itself. Had he done so, he might have reached a very different conclusion.
What Chase Actually Wrote
For starters, Griffin wasn’t addressing future appointments or elections at all. The case involved a Virginia criminal prosecution that the defendant/petitioner (Caesar Griffin) claimed was invalid because his judge in the case should have been removed from office by XIV-3. The judge (H. W. Sheffey) had been appointed to his post before XIV had been ratified. Chase was deciding what should happen to these previously elected or appointed officials.
Moreover, in deciding they could not be removed, Chase did not call for “a legal process prescribed by Congress.” He cited one, a Congressional resolution specifically discussing appointments in Virginia. Chase wasn’t making a broad ruling on XIV’s provisions. He was examining the narrow question of what should become of officials in place before it took effect.
In fact, when Chase himself discussed future appointments or elections, his view is the exact opposite of how Willick describes it (emphasis added).
Instructive argument and illustration of this branch of the case might be derived from an examination of those provisions of the constitution ordaining that no person shall be a representative or senator, or president, or vice president, unless having certain pre-prescribed qualifications. These provisions, as well as those which ordain that no senator or representative shall, during his term of service, be appointed to any office under the United States, under certain circumstances, and that no person holding any such office shall, while holding such office, be a member of either house, operate on the capacity to take office. The election or appointment itself is prohibited and invalidated; and yet no instance is believed to exist where a person has been actually elected, and has actually taken the office, notwithstanding the prohibition, and his acts, while exercising its functions, have been held invalid.
In other words, had Trump committed the insurrection while president (as he did), XIV itself could not simply remove him from office (as, indeed, it did not). However, XIV can prevent him from being elected to that office.
More … and Less … Than Meets The Eye
Therefore, Griffin is no obstacle to those looking to disqualify Trump from future office; in fact, it is an enabler of that effort. However, that does not mean Colorado (or Maine, or any other state) gets to keep Trump off the primary ballot.
Much has been said about the conservative nature of the present Supreme Court, including the focus on justices on textualism. Conservative Trump critics believe that textualism is enough to keep Trump out of the White House. I’m inclined to agree. That does not mean it is enough to keep him off a ballot.
The language in XIV is clear, “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…” That means they cannot hold the office; it does not mean they cannot be elected to the office. That may sound like a thin hair to split, but Article II, Section 1 splits it all the same (emphasis added).
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
Thus, the Supreme Court of 2024 can – and if you ask me, probably will – bypass the entire question by simply stating that nothing in the Constitution prevents the nomination or even the election of someone with an “inability to discharge the powers and duties of the office.”
Indeed, we have a bizarre precedent of the 1972 Democratic convention, where two votes for Vice President went to dead men. A more recent example would be Missourians in 2000 elected Mel Carnahan to the United States Senate despite the fellow having died during the campaign. The election itself was never invalidated; instead, a vacancy was declared and a replacement (Carnahan’s wife) was appointed.
The Supremes could easily look at this and declare that whole thing moot until the Electoral Votes are counted in December, at which point if Trump is elected but XIV were to be invoked, the job would fall to his running mate. Odds are the Supremes won’t even rule on that eventuality, as the election hasn’t happened.
Of course, that leads the door wide open for Trump to campaign for a potential third term in 2028 and roll the dice on what the Supremes decide in January 2029 …
… but that’s for another blog post.