RELEASE: Justices Grapple with the Fourteenth Amendment’s Text and History in Trump Ballot Case
WASHINGTON, DC – Following oral argument at the U.S. Supreme Court this morning in Trump v. Anderson, a case in which the Court is considering whether Donald Trump should be prohibited from appearing as a candidate on the ballot due to his disqualification from office under Section Three of the Fourteenth Amendment, Constitutional Accountability Center Vice President Praveen Fernandes had the following reaction:
By engaging in insurrection, Donald Trump violated his oath to support the Constitution, and his actions constitutionally disqualify him from holding office. In deciding this case, the Justices would do well to remember their own oaths of office, and be guided by the clear text and history of Section Three of the Fourteenth Amendment. If text and history are the Court’s touchstones, the Colorado Supreme Court’s decision will be upheld and Donald Trump will not appear on ballots. The Fourteenth Amendment, like the rest of the Constitution, was democratically enacted by “We The People,” and failing to give force to the plain meaning of its words would be anti-democratic.
Constitutional Accountability Center Appellate Counsel Smita Ghosh added:
Trump’s argument—which posits that presidents are not “officers,” and the presidency may not be an “office” for the purpose of Section Three—lacks any basis in the text and history of Section Three of the Fourteenth Amendment. As Justice Sotomayor observed to Trump’s attorney, this argument would produce “a gerrymandered rule designed to benefit only your client.”
While some of Justice Jackson’s questions seemed to suggest that text and history might support Trump’s case because the “president” is not specifically mentioned in Section Three, her questions actually prompted Trump’s lawyer to acknowledge that historical evidence from the time of the Fourteenth Amendment’s drafting provides support for the Colorado voters’ position in this case.
Section Three’s framers sought to ensure that officers who engaged in insurrection against the country would not again be able to hold office, including the nation’s highest office. To achieve that end, they used language that encompassed both presidents and the presidency. The Supreme Court has long recognized that the Constitution should be understood based on what its terms meant at the time they were adopted, and it should apply that fundamental rule here.
Case page in Trump v. Anderson: https://www.theusconstitution.org/litigation/trump-v-anderson/
Smita Ghosh, There’s a Huge Originalist Hole in Trump’s Argument for Staying on the Ballot, Slate, Feb. 6, 2024: https://slate.com/news-and-politics/2024/02/trump-supreme-court-ballot-argument-originalism.html
Praveen Fernandes & Jess Zalph, Colorado’s Trump Disqualification Case Will Test the Supreme Court, Newsweek, Dec. 20, 2023, https://www.newsweek.com/colorados-trump-disqualification-case-will-test-supreme-court-opinion-1854350
Praveen Fernandes, Enforcing the Insurrection Clause Against Trump Strengthens Our Democracy, Newsweek, Dec. 13, 2023, https://www.newsweek.com/enforcing-insurrection-clause-against-trump-strengthens-our-democracy-opinion-1852255
Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.