The United States Supreme Court will hear arguments this week in the case that seeks to exclude Donald Trump from the ballot in Colorado. The constitutional provision at stake is Section 3 of the Fourteenth Amendment. It was adopted in the shadow of the Civil War and reads: 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. 

The Supreme Court has never before considered Section 3. We have a constitutional tabula rasa. This dispute presents an opportunity for each of us to think about how we would interpret the Constitution freed from past decisions.  

I know the answers from many. Some would say it is clear that Trump engaged in an insurrection, and he should be barred from being president again. Others will say that barring him from the ballot harms democracy and will lead to more divisions in the country. It is better that the voters decide whether he should be president again. But, of course, those are conclusions that skip over important interpretive questions that the constitutional provision presents. 

There are different modes of constitutional interpretation, but perhaps all can agree that the start should be the text of the Constitution itself. If the words are clear—Congress shall have two houses, for example—we have no problem, but often a provision is unclear and reasonable people might differ over its interpretation. The Constitution gives no clue how the charter should be interpreted when interpretation is needed. Instead, interpreters make choices for their interpretive methods. And we should be aware that no matter how hard we may try, at least, subconsciously, that choice is unlikely to be a neutral one. We will have the tendency to adopt the interpretive method that reaches the results most pleasing to us. 

Of course, this only matters if Section 3 has parts that aren’t so clear that they need interpretation. Perhaps you noticed what others have: While the provision expressly bars people from certain positions—Senator, Representative, elector—it does not explicitly prohibit anyone from being president. Does Section 3 not cover the presidency? Others reply that “officer of the United States” includes the president, but it is at least curious that “elector of President” is explicitly listed, but not the presidency itself. 

Perhaps you also noticed that the provision only applies to those who have previously taken an oath “to support the Constitution” and know that the Constitution prescribes an oath for the president that does not include the word “support.” Instead, to become president people must swear or affirm to “preserve, protect and defend the Constitution.” Does that matter? 

Perhaps most crucial to the Fourteenth Amendment’s Section is that a person has to have “engaged in insurrection or rebellion against the” United States. Of course, we know that the provision was enacted in reaction to the Civil War, and clearly that conflict was considered to be an insurrection or rebellion against the United States. But what else constitutes insurrection? How would you go about finding that meaning? A modern dictionary defines insurrection as “an act or instance of rising in revolt, rebellion, or resistance against civil authority or an established government.” Another dictionary states that an insurrection is “an act or instance of revolting against civil authority or an established government.” The two definitions are similar but not the same. Does that matter? 

Or perhaps you feel that we should look at what the terms meant when the Fourteenth Amendment was drafted and adopted. Those nineteenth century folk were probably familiar with Noah Webster’s 1828 dictionary, which defines and explains insurrection as “A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.” 

A good court decision should first determine what “insurrection or rebellion” means. Only after that can it be decided whether January 6 fell within the purview of Section 3. But if you determine that by the definition you accept, January 6 was an insurrection, you should examine what else might be an insurrection to test out your definition. Does a mass movement that refuses to pay federal taxes come within the ambit of Section 3? Or imagine a Black Lives Matter protest that has surrounded a federal office building shoulder to shoulder making entrance into the offices impossible without some sort of force. Is that an insurrection? 

If the behavior at the Capitol was an insurrection, did Trump, who was not on Capitol Hill, participate in the insurrection? He did not do anything violent; as far as I know, he only spoke. The free speech provision of the First Amendment seems to come into play. The Supreme Court has decided cases trying to delineate when speech advocating illegal action is protected free speech and when it is criminal incitement. I’ll spare you the details, but it is hardly clear that Trump’s comments were criminal incitement. A few years ago I was asked to conduct a friend’s college seminar about free speech while he recuperated from Covid. The students had studied the Court’s incitement cases. I had them read Trump’s January 6 address. Putting it mildly, the students were not Trump acolytes, but not one of them thought his remarks fit the Supreme Court definition of criminal incitement. Of course, I am not saying the students’ reactions were right, and I only had the students read the comments. A cold, printed record can, of course, be much less inflammatory than actual oral remarks, but how should the First Amendment come into play in evaluating Section 3?  

Assume, however, that it has been decided that the presidential oath and the office of president fall within the ambit of Section 3. Assume there is a workable definition of insurrection. Still, however, some individual or institution must authoritatively determine whether what happened fit the insurrection definition and, if so, if Trump engaged in it. Section 3, however, does not tell us who or what makes these factual determinations. 

Some contend, including many Republican Senators and Representatives, that Congress must first either make the Section 3 determinations itself or set out the procedures for making the judgments. They get support for this position from an 1869 decision by a Supreme Court justice who was acting not as part of the Supreme Court but as a lone appellate judge. It, however, presented a much different circumstance than whether someone should be kept off the presidential ballot. In this nineteenth century case, a man who had been convicted of a crime in state court maintained that his conviction was faulty because the presiding judge at his trial was disqualified under Section 3. The trial took place after the Fourteenth Amendment had been adopted, but the judge had validly ascended to the bench before Section 3 was in effect. No one contended that the trial was unfair, and the Supreme Court judge upheld the conviction, suggesting that Congress had to act before Section 3 was enabled. 

Perhaps upholding the conviction was right, but the suggestion that Congress must act to make Section 3 operative is bizarre. Perhaps someone can point out an example, but I don’t know of another constitutional provision that is a dead letter unless a majority of Congress acts. Instead, our constitution puts governmental structures and individual rights out of reach of majority control. Concluding that Congress must act first for Section 3 to be enforceable would make that provision different from other parts of the Fourteenth Amendment. For example, the first part of that amendment states that a state shall not “deny any person within its jurisdiction the equal protection of the laws.” The equal protection clause does not say how it should be enforced, but it does not require congressional action to be enforceable. Instead, as in school segregation cases, courts have enforced the equal protection clause without congressional action. And notice that Section 3 says that the section’s disability can be lifted by a two-thirds vote of each congressional house. Why put in that explicit language and not tell us that Congress must act in order for the provision to be enforceable?   

It is not courts, however, that are the primary supervisors of our elections. Instead, state secretaries of states, boards of elections, and the like first determine whether a person is qualified to be on the ballot. However, Section 3 applies equally in all the states, and a person should be a disqualified insurrectionist in all the states or in none. Section 3, when it comes to the president, is akin to the requirements in Article II that says no one can be president who is not a natural born citizen, thirty-five years old, and resident of the country for fourteen years. It would be nonsensical for one state to bar a candidate because he is not thirty-five, while another state determines he is old enough.  

There is yet another wrinkle. A person is entitled to due process in the determination of whether he is disqualified for office. The Supreme Court should rule on what process is due, but to my mind this should include an adversarial trial where our potential candidate should be allowed to cross-examine witnesses and be able to call witnesses. The burden of holding such a proceeding in every state would be overwhelming. Are we really going to say that a bystander witness to the possible insurrection must testify in Arkansas, Utah, Vermont, etc.? And what should the Supreme Court do if there are contradictory findings about whether the person participated in an insurrection? The Supreme Court normally decides issues of law such as what is the definition of “insurrection”; it does not have a mechanism for deciding which findings of fact among competing ones are the ones that control.  

Of course, Congress might act and set out a structure for determining whether Section 3 disqualifies somebody. Section 5 of the Fourteenth Amendment states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress could pass legislation that, for example, says the federal courts in the District of Columbia have the exclusive jurisdiction to try all actions to disqualify any person from office under Section 3 of the Fourteenth Amendment. But we don’t have such legislation, and we won’t any time soon.  

I know how I would answer some, but not all, of the issues raised by Section 3 of the Fourteenth Amendment. I have little idea, however, of the reasoning the Supreme Court will use to reach its result. Of course, perhaps most of the country will only be concerned with the outcome, but since this constitutional provision presents a messy situation, I expect the Supreme Court to give us messy opinions.