How the Supreme Court is Failing to Defend the Rule of Law
America is a deeply divided land facing a myriad of complex quandaries.
Should Ukraine receive aid from the United States, and if so how much?
How can we stop the unprecedented level of gun violence in our schools?
What can be done to solve the crisis at our southern border?
These questions present deep issues that can catalyze good-faith discussion about how to move forward; they more commonly seem to incite vitriol and anger. However, perhaps no issue strikes more deeply to the core of the American experiment than the survival of our Republic.
Last year, the State of Colorado made international headlines when they removed former President Donald Trump’s name from ballots in the centennial state for the upcoming 2024 elections. Mr. Trump is the Republican frontrunner who will almost certainly win the nomination of his party for the 3rd election in a row, and as such his removal from the ticket is igniting another cantankerous public debate.
This debate is not at issue here, however. At issue is not whether Donald Trump used his speech to illegally incite insurrection against the United States; this is an explication of a deeper principle that has always irked me when listening to public debate surrounding our Constitution: the weight of historical context.
In Trump v. Anderson, the Colorado Supreme Court cites the 14th Amendment’s 3rd clause, preventing any previous “officer of the United States” who has previously engaged in “insurrection or rebellion” against the United States Constitution from serving in any office “civil or military.” The argument is simple enough, Colorado alleges that Donald Trump engaged in insurrectionary behavior in inciting the crowd to march on the Federal Capitol Building on January 6th, 2021, and is therefore constitutionally ineligible to serve as President.
The instant debate in the Supreme Court, however, does not seem to be focused on whether or not Donald Trump engaged in insurrectionary acts on January 6th, but rather whether or not the 14th Amendment even applies here at all.
According to NBC News,
“Chief Justice John Roberts said that the ‘whole point’ of the 14th Amendment was to restrict state power after the Civil War in an attempt to bring Confederate states into line and questioned why it would give states the ability to kick a presidential candidate off the ballot.”
The problem with this line of argument is that it is patently ridiculous because every article and amendment in the United States Constitution has a historical context surrounding why it was passed.
For example, the 3rd Amendment to the Constitution bars the quartering of soldiers in houses “without the consent of the owner.” This amendment was clearly passed due to the egregious violation of American rights during the Revolutionary War by British troops, but it is also not meant to apply to the actions of British troops alone. Any army, indeed even American armies, cannot violate this amendment at any time.
If one applies Chief Justice Robert’s logic to the 3rd Amendment, the illogical nature of his line of reasoning reveals itself.
Imagine Chief Justice Roberts arguing that the Chinese People’s Liberation Army could quarter their troops in American homes without the consent of the owners because the ‘whole point’ of the 3rd Amendment was to curtail the ability of British soldiers to illegally occupy American homes. Imagine him questioning why the 3rd Amendment would give the government the ability to kick out those PLA soldiers.
“It's a good thing these soldiers are redcoats, otherwise I’d have no 3rd Amendment protection”
The purpose of the 14th Amendment’s 3rd clause is clear. In passing the 14th Amendment, the 39th Congress sought both to limit former Confederates’ ability to continue their assault on the Federal Government from inside the Federal Government AND to prevent similar insurrectionaries from making such assaults in the future. These aims are not mutually exclusive. It logically flows that if the 39th Congress sought to enact the former goal, they would also be just as interested in protecting the Constitution from future assaults of the latter variety.
The purpose of a constitution is to protect the rule of law from bad actors who seek to subvert it. As James Madison wrote in Federalist 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
A particular historical moment reveals the necessity of a particular Constitutional protection, but the protection’s power is not limited to that epoch alone.
It is for American courts, and indeed each American citizen, to decide whether or not Donald Trump committed insurrectionary acts on January 6th, 2021. What is not up for debate, however, is that public officials who commit insurrection or rebellion are barred from serving in offices of public trust; that principle is expressed plainly, in black and white, in the United States Constitution.
Since 1787, millions of Americans have fought and died in the name of our Constitutional Republic, without the enforcement of the laws in the Constitution, their sacrifices would have been in vain. It falls now to us to defend the Constitution from all threats so that we honor those who came before us.
“At his best, man is the noblest of all animals; separated from law and justice he is the worst.” — Aristotle
