The United States Supreme Court is scheduled to hear oral arguments on February 8, 2024 regarding the constitutionality of keeping Donald Trump off primary and (presumably) general election ballots for the office of President in 2024. The case stems from a decision by the Colorado State Supreme Court which ruled Trump COULD be blocked from the state's primary ballot after concluding that Trump DID engage in acts of insurrection and thereby triggered the conditions set forth in Section 3 of the Fourteenth Amendment. As the country waits for the oral arguments and the eventual ruling that emerges from an unpredictable court, an amicus brief filed with the USSC by five noted historians regarding this case is especially worth reviewing by all Americans. It sets forth, in plain, non-technical language, a clear summary of the actual history of the Fourteenth Amendment which makes the original intent of the amendment's authors very clear and one hundred percent applicable to the facts of the case involving Donald Trump.
Background on the Colorado Case
Understanding the circumstances and facts of the case from Colorado triggering this USSC decision is crucial to understanding the legal questions the USSC may choose to address in its eventual decision. The case in Colorado, Anderson vs. Griswold, was a suit by multiple parties (four registered Republicans and two independents) against the Colorado Secretary of State, Jena Griswold, attempting to force Griswold to keep Donald Trump off the Colorado Republican primary ballot as a presidential candidate in 2024 on the grounds that he engaged in acts of insurrection and was barred from holding federal office under the terms of Section 3 of the Fourteenth Amendment.
The initial stance of the Colorado Secretary of State (a Democrat) was that her office did not have the legal standing to make a decision on whether Trump's actions constituted "insurrection" and thus her office had no standing to block Trump from the ballot. The case was heard by a trial court and an appeals court and both courts ruled against the plaintiffs (seeking to block Trump from the ballot) and the case was appealed to the Colorado State Supreme Court. On December 19, 2023, the CSSC reversed the decision of the lower courts on a 4-3 vote and the majority opinion went to great lengths to explicitly support its findings of fact and its legal decision. The CSSC opinion itself is a masterpiece of analysis and legal insight and can be seen at this link:
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdfThe decision surgically tackled each of the questions regarding procedural due process, semantic definitions of key words and actual findings of fact and directly concluded Trump had engaged in insurrection and should be kept from the Colorado ballot. Specifically,
Due Process -- Trump's attorneys claimed he has not been convicted of acts related to insurrection and any decision to exclude him from a ballot would violate his right to due process. The CSSC ruling held that months of Congressional investigation which ultimately concluded Trump had engaged in insurrection and investigations and charges in multiple states regarding attempts to manipulate state voting results were appropriate due process for the Colorado Secretary of State to conclude Trump HAD engaged in acts of insurrection.
Self-Executing Nature of the Fourteenth Amendment -- Trump's attorneys argued that no specific laws were enacted by Congress that explicitly stated how provisions of Section 3 can be enforced. The CSSC held that the terms of Section 3 are self-executing, meaning that the terms are clear enough that while the Amendment states Congress shall pass any laws deemed necessary for enforcement, ALL of the sections of the Fourteenth Amendment are self-executing and that the US Supreme Court has held previously that other sections are self-executing which have identical language.
The Definition of Office -- The lower court decisions stated they could not find clear enough language to explicitly confirm whether the Office of President of the United States was an "office" under the definition of Section 3 of the Fourteenth Amendment. As lower courts, in the absence of what they felt was incontrovertible proof of the intended meaning of "office" by the authors of the amendment, the lower courts concluded it was beyond their standing to create such an interpretation. The CSSC bluntly stated this was a reversible error and that the Office of President was absolutely an "office" under the terms of the Fourteenth Amendment. Full stop.
Hearsay / January 6 Findings -- Trump's lawyers attempted to argue in the lower courts that use of information and testimony from Congressional hearings into January 6 and the events leading up to it constituted hearsay for the purposes of Colorado determining Trump's eligibility for the ballot in Colorado. The CSSC ruling held the lower courts did not err in admitting this information, did not err in concluding that the events of January 6, 2021 did in fact constitute insurrection and did not err in concluding Donald Trump "engaged" in that insurrection via a multitude of actions.
First Amendment Rights -- Trump's lawyers attempted to argue in the lower courts that Trump's speech to the crowd on January 6 prior to the violence at the Capital was merely the President engaging in free speech regarding his opinion of the fairness of the election. The CSSC ruling held Trump's speech incited the crowd to violence and was not protected First Amendment speech.
Is Section 3 Justiciable? -- Trump's lawyers attempted to argue in the lower courts that a decision to keep a candidate off a ballot is inherently political and thus not suited for being adjudicated in courts which are supposed to avoid purely political questions. The CSSC ruling rejected this argument, first stating that Trump's argument failed to claim that the facts required to make a determination about ballot eligibility in relation to Section Three were not objectively discoverable and amenable to comparison against meaningful standards and that this omission waived his right to make this larger claim. However, in the interest of clarity, the CSSC explicitly held that the terms of Section Three by no means held all power to make such determinations to the federal government and that states HAD authority to assess and enforce qualifications for President.
It is crucial to understand these findings from the Colorado State Supreme Court decision for two key reasons:
- In theory, the United States Supreme Court does not attempt to re-evaluate questions of FACT. The USSC only focuses on evaluating legal decisions within a case which either failed to follow prior precedent or involved case law where unique facts of the present case mapped to gray areas in existing case law, requiring new decisions.
- In theory, the United States Supreme Court limits new decisions to explicit issues present in a case before them. The USSC typically does NOT use a case involving precedent in area A of the law to lay down new precedent in area B of the law.
Of course, these are THEORETICAL caveats. The REALITY of the US Supreme Court's record over the past twenty years reflects numerous cases where decisions have been issued that seem to stray far from any reasonable interpretation of the bounds of the actual case involved. And in many controversial cases, USSC decisions have involved tortured searches for supporting evidence from questionable historical sources in order to justify controversial reversals of prior USSC precedents.
How tortured?
Justice Alito's writing on the Dobbs decision overturning abortion rights hinged in part on concluding that abortion had never been viewed historically as a "right" and was in fact historically viewed as a criminal act. In making that point, Alito cited common law and legal writings from Sir Matthew Thomas Hale, the Lord Chief Justice of England in 1671. Hale's logic and writings became the basis for guidance to courts and jurors that lasted in America until the 1970s that held that marital rape isn't a crime and that any claims of rape should be met with skepticism.
A reading of the majority opinion in the Colorado State Supreme Court decision seems to suggest those writers constructed the opinion explicitly to draw the attention of the US Supreme Court Justices to existing case law - in some cases ruled on by current Supreme Court Justices - that supports their decision to eliminate Trump from the ballot for unambiguously justifiable reasons. As it turns out, the wording of the Colorado ruling isn't the only prose that is putting public pressure on the US Supreme Court to abandon its revisionist / originalist unwinding of sound precedent for partisan preferences and focus on reality.
A Scholarly Shot Across the Bow
The context of the issue now facing the US Supreme Court is unprecedented in its risks to the future of democracy in the country and in the utter failure to-date of existing mechanisms of the law to adequately deal with the issues. That context involves:
- pre-planned, coordinated physical attacks by thousands of citizens...
- upon members of Congress as they were executing one of the most crucial administrative tasks of a democracy to certify an election for President...
- which were devised by the sitting President and led by the President for more than two months PRIOR TO THE ELECTION...
- resulting in legitimate attempts to ban said ex-President from appearing on ballots to compete for the office of President again under language explicitly stated in a Constitutional Amendment...
- resulting in legal disputes getting escalated to a US Supreme Court with a track record of distorted, politicized rulings based on unpredictable references to grossly mis-interpreted or completely wrong history
It is that context which makes the content of the amicus brief filed with the US Supreme Court on January 29, 2024 so much more crucial to understand. The brief was submitted by four nationally acclaimed historical scholars:
Jill Lepore - Harvard Professor of History, author of fourteen books
David Blight - Yale University Professor of History, author
Drew Faust - Harvard University President Emerita, author
John Witt - Yale University Professor of Law, author
The content of the brief is available at this link on the SCOTUS website:
https://www.supremecourt.gov/DocketPDF/23/23-719/298999/20240129110006501_23-719%20bsac%20American%20Historians%20Final.pdfA reading of the entire brief, all thirty-five pages, leaves one inescapable conclusion. The authors of the brief intended to put the entire US Supreme Court on public notice, even BEFORE they even hear oral arguments in this case, that the ACTUAL history involved with the Fourteenth Amendment and Section Three in particular is in fact NOT A MYSTERY to actual historians, is WELL UNDERSTOOD in both its original historical context and modern interpretation, and is COMPLETELY UNAMBIGUOUS in its intent to ensure persons who have violated ANY oath of office are BLOCKED from holding office.
It seems this "shot across the bow" of the amateur historians within the Supreme Court begins with the FIRST PARAGRAPH of the brief which states:
Amici curiae are distinguished scholars whose expertise includes the histories of federal constitutional amendment, the laws of war, and the Civil War and Reconstruction.1 All amici are elected members of the American Academy of Arts and Sciences and winners of either the Pulitzer or the Bancroft Prize or both.
After providing a brief two-sentence biography on each member of the team, the summary ends with this:
Amici’s interest in this appeal arises from the gravity of the case before the Court and the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment. As eminent American historians with expertise in the relevant era, actors, and events, amici are well qualified to assist the Court by establishing the original intent, meaning, and public understanding of the Disqualification Clause.
In plainer English, perhaps those first paragraphs can be translated like this:
The authors of this brief are not mere dabblers in armchair history. Each contributor has spent their entire career studying the aspects of political history of the period originating the amendment at the core of this case, the policies enacted at the time of its inception regarding the participation of oath-breakers in elected positions and the expectations those persons had for the application of this amendment in perpetuity in the country. Each participant in this effort has achieved national recognition for their entire body of work in these exact fields. THEY KNOW ACTUAL HISTORY. Rather than seeking your own Fractured Fairy Tale version of history to rationalize your decisions, you would be advised to stick with the verifiable history cited within and avoid further destruction of your own Constitutional legitimacy.
Like the final decision from the Colorado Supreme Court, the brief reads like it was intended to be a Cliff's Notes summary for a Supreme Court all too willing to go off and attempt its own search for supporting history to justify what it wants to decide. Like the Colorado Supreme Court ruling, the brief is filled with explicit citations of debates and correspondence throughout the Civil War and through the drafting of the Fourteenth Amendment and the effort to ratify it supporting the conclusions. The clarity of both of these documents provides citizens a very clear means by which to evalate whatever decision emerges from the court. Did they stick to the prescribed scope and facts of the case? Did they use history or invent history to support their conclusions? Do their conclusions have any grounding in actual law or history?
Just scanning through the brief and noting the headings in bold provides a very clear outline of the overall point made by the brief:
I. THE ORIGINS OF SECTION THREE
A. From the Start of the Civil War, the Federal Government
Took Steps to Ensure Loyalty and Disqualify
Insurrectionists in its Midst
B. At the End of the War, Disqualification Became a Pressing
Concern as Insurrectionists Were Elected to Congress
II. THE DRAFTING AND RATIFICATION OF SECTION THREE
A. A Congressional Inquiry Discovered Widespread
Rebelliousness in the South
B. The Development of Section Three Demonstrates
Congress’s Intent to Make Disqualification
Targeted and Permanent
C. Southern States Resisted Ratification, in part,
Because of the Disqualification of ex-Confederates
III. THE PERSISTENCE OF SECTION THREE
A. The Jefferson Davis Case Showed That Section
Three Required No Criminal Conviction and Was
Self-Executing
B. Requests for Amnesty Underscore the Broad and
Immediate Impact of Section Three
Perhaps the most concise quote from the brief expands upon comments found in the Report of the Joint Committee on Reconstruction, from 1866:
Without a disqualification clause that would endure, a Congressional committee warned, “flagrant rebellion, carried to the extreme of civil war,” would become “a pastime.” Future insurrections could be defeated by force of arms but “the battle may be still fought out in the legislative halls of the country.”6 Insurrectionists could take over state legislatures, state houses, Congress, the cabinet, and even the White House. Section Three was meant to prevent that possibility. Its framers intended Section Three: (1) to automatically disqualify insurrectionists; (2) to apply not only to the Civil War but also to future insurrections; and (3) to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States. It remains in place and in force today.
As another example of how this Cliff's Notes brief puts the Supreme Court itself on notice, the brief addresses how language of Section Three was explicitly crafted to close off a path to elected office for Confederate actors who escaped conviction for treason - including Jefferson Davis. A brief filed on behalf of Trump's position by Ed Meese III (yea, him), Michael Mukasey and William Barr (yea, him) claimed that historical records reflect that actors in the 1860s were NOT concerned that a Confederate leader could win the Presidency. The real historians call that falsehood out directly and refute it in detail:
Amici curiae briefs filed in support of the Petitioner by individuals who are not historians claim that “Historical records ... reveal that the Framers and ratifiers of the Fourteenth Amendment were not concerned that a Confederate leader could attain the presidency” and that “No Republican seriously feared that the national electorate would place a former rebel like Jefferson Davis in the White House.”76 These assertions are mistaken.
In 1868, as part of normal judicial procedures at that time, US Supreme Court Chief Justice Solman Chase was presiding over a circuit court handling the trial of Jefferson Davis for treason. Chase had political ambitions at the time that made the prospect of him actually presiding over the trial disadvantageous to his interests. During preparations for trial, Chase met with Davis' lawyers behind the scenes and suggested they argue that because Davis had already been automatically disqualified by Section Three, he had already been punished and could not be convicted of treason.
Lo and behold, that's exactly the argument Davis' lawyers made in court. They stated directly in court, "It needs no legislation by Congress to give it effect." The government's lawyers made the argument that the Constitution and criminal code serve distinct purposes and should be considered separately. Disqualification on Constitutional grounds from seeking office is unrelated to criminal penalties for treason. Lo and behold, Justice Chase and the other judge hearing the case on the circuit came to different conclusions regarding Davis' defense and the prosecution withdrew the criminal case, knowing Davis' own case conceded his ineligibility for future office.
The point of this anecdote? Section Three of the Fourteenth Amendment was not only ANTICIPATED as a means of gating who might become President, it has already fufilled that intended purpose in a court of law. And not just in a race for dog catcher or Senator, but in a case that was the marquee scenario of its purpose, by helping ensure the nation's most infamous insurrectionist -- at least until January 6, 2021 -- never attained the office of President.
Amicus briefs are a routine part of Supreme Court proceedings. The fact that multiple parties on both sides of the issues around Donald Trump's ballot eligibility have attempted to submit their own spoonfed "think-bytes" to the US Supreme Court to spur thinking in their preferred direction is no surprise. Perhaps the only surprise greater than the surprise that America sits at a point in its history where the need to prevent a former President who planned an insurrection to retain power from regaining power exists is the surprise that seemingly no one in the country can predict how the US Supreme Court will rule in what should be such an open and shut case. At this point, that's as dangerous a sign as Trump's sway over Republicans that we as a nation have lost the plot.
WTH
