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French David
By David French
Opinion Columnist
As of Monday, March 4, 2024, Section 3 of the 14th Amendment to the Constitution is necessarily a dead letter, at least as far as applicants for federal jobs are concerned. Under the U. S. Supreme Court’s ruling that overturned Colorado Supreme Court Donald Trump’s ruling of the state’s first vote, even insurgents who violated their previous oath of office can hold federal office, unless and until Congress passes an express law to enforce Article 3.
After last month’s oral argument, legal observers knew with almost certainty that the Supreme Court was unlikely to apply Article 3 to Trump. None of the justices seemed willing to uphold the Colorado court’s ruling, and only Justice Sonia Sotomayor gave a meaningful indication. of their disagreement. The only genuine question that remained was the reasons for the court’s ruling. Would the resolution be broad or narrow?
A narrow ruling in Trump’s favor could simply have considered, for example, that Colorado had not afforded him sufficient due process when it decided that Article 3 applied. Or the court could have simply concluded that Trump, as president, was not an “official of the United States” within the meaning of that article. Such a move would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurgents from the House or Senate and all other federal offices.
A broader resolution might have thought that Trump did not participate in an insurrection or uprising and did not provide aid or convenience to the enemies of the Constitution. Such a resolution would have severely limited Article 3 to apply almost exclusively to civil war. conflicts of type, a result that contradicts the original text and the public meaning of the article. It should be noted that by not following this path, the court did not exonerate Trump of participating in an insurrection.
But instead of any of those options, the court arguably opted for the broadest reasoning available: that Section 3 is not self-executing and has no force or effect in the absence of congressional action. This argument has its origin in article five of the amendment. , which states that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. “
But Article 5, on its face, does not give Congress the exclusive power to pass the amendment. As Justices Elena Kagan, Sotomayor, and Ketanji Brown Jackson noted in their own concurring opinion, “all Reconstruction Amendments (including due process, the equivalent guarantees of coverage, and prohibition of slavery) ‘are self-executing,’ meaning they are not dependent on the law. “While Congress can pass laws to enforce the 14th Amendment, it is not required to do so, and the 14th Amendment remains binding on federal, state, and local governments even if Congress refuses to act.
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