Amicus Curiae Brief — Donald J. Trump, Petitioner v. Norma Anderson, et al.
Supreme Court briefJan 17, 2024
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i
No. 23-719
In the
Supreme Court of the United States
DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, ET AL.,
Respondents.
On Writ of Certiorari to the
Supreme Court of Colorado
BRIEF OF AMICUS CURIAE
CLAREMONT INSTITUTE’S CENTER FOR
CONSTITUTIONAL JURISPRUDENCE IN
SUPPORT OF PETITIONER
JOHN YOO
Counsel of Record
1550 Tiburon Blvd. #G503
Tiburon, CA 94920
(510) 600.3217
johncyoo@gmail.com
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ii
INTEREST OF AMICUS CURIAE ............................. 1
INTRODUCTION
AND
SUMMARY
OF
ARGUMENT ................................................................ 1
ARGUMENT ................................................................ 4
I. A Former President is not within the
jurisdictional scope of Section 3 of the
Fourteenth Amendment .......................................... 4
II. Section 3 of the Fourteenth Amendment is
Not Judicially Enforceable Without
Implementing Legislation ..................................... 13
III. Section 3’s Offense Element Requires
Congressional Legislation ..................................... 20
CONCLUSION .......................................................... 25
ii
TABLE OF AUTHORITIES
Cases
Armstrong v. Exceptional Child Center, Inc., 575 U.S.
320 (2015) ............................................................... 14
Blumenthal v. Trump, D.C. Cir., No. 19-5237) slip op.
(Feb. 7, 2020),
https://www.cadc.uscourts.gov/internet/opinions.nsf
/2EFD382E65E33B3C852585070055D091/$file/195237-1827549.pdf ................................................... 13
Egbert v. Boule, 596 U.S. 482 (2022) .......................... 2
Ex parte Levitt, 302 U.S. 633 (1937) ......................... 13
Franklin v. Massachusetts, 505 U.S. 788, 800–01
(1992) ........................................................................ 6
Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) ... 15, 16,
17, 18
In re Debs, 158 U.S. 364 (1885), ................................ 22
Indictment, United States of America v. Donald J.
Trump, No. 1:23-cr-00257-TSC (D.D.C.) Aug. 1,
2023,
https://www.justice.gov/storage/US_v_Trump_23_c
r_257.pdf................................................................. 24
McClure v. Carter, 513 F. Supp. 265 (D. Idaho 1981)
................................................................................ 13
McCullough v. Maryland, 17 U.S. (4 Wheat.) 316
(1819) ........................................................................ 8
Schlesinger v. Reservists Committee to Stop the War,
418 U.S. 208 ........................................................... 13
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 822
(1995) ...................................................................... 15
U.S. v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va.
1823) (No. 15,747) .................................................... 7
iii
Other Authorities
3 Joseph Story, Commentaries on the Constitution of
the United States § 791, at 259–60 (1833) .............. 8
Congressional Globe, House of Representatives, 41st
Congress, 2nd Session 3881-3882 (May 27, 1870) 18
Josh Blackman & Seth Barrett Tillman, Is the
President an “Officer of the United States” for
Purposes of Section 3 of the Fourteenth
Amendment?, 15 N.Y.U. J. L. & Liberty 1, 2–3
(2021) .................................................................... 4, 7
Kurt T. Lash, The Meaning and Ambiguity of Section
Three of the Fourteenth Amendment,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id
=4591838 ................................................................ 18
William Baude & Michael S. Paulsen, The Sweep and
Force of Section Three, 172 U. Pa. L. Rev.
(forthcoming 2024).
https://papers.ssrn.com/sol3/papers.cfm?abstract_id
=4532751 .......................................................... 10, 11
Constitutional Provisions
U.S. Const. amend. XIV, § 3 ........................................ 7
U.S. Const. art. II, § 1, cl. 8 ....................................... 11
U.S. Const. art. II, § 2, cl. 2 ......................................... 9
U.S. Const. art. II, § 3 ............................................... 12
U.S. Const. art. II, § 4 ................................................. 9
1
INTEREST OF AMICUS CURIAE1
The Center for Constitutional Jurisprudence
(“CCJ”) was founded in 1999 as the public interest law
arm of the Claremont Institute for the Study of
Statesmanship and Political Philosophy, the mission
of which is to restore the principles of the American
founding to their rightful and preeminent authority in
our national life. The CCJ advances that mission
through strategic litigation and the filing of amicus
curiae briefs in cases of constitutional significance,
including cases such as this in which the nature of our
federal system of government and the balance of
powers between the national and state governments
are at issue. The CCJ has previously appeared as
amicus curiae before this Court in such cases
involving questions of federalism, naturalization, and
the respective powers of the national and state
governments.
INTRODUCTION AND
SUMMARY OF ARGUMENT
A former President is not among those whom
Section 3 of the Fourteenth Amendment subjects to
sanctions.
Respondents
rely
on
a
flawed
understanding of the constitutional term “officer of the
1 No counsel for a party authored the brief in whole or in part. No
party, counsel for a party, or any person other than amicus and
their counsel made a monetary contribution intended to fund the
preparation or submission of the brief.
2
United States.” That term or near synonyms appears
four times in the original 1788 Constitution. In all
these occurrences, the President is distinguished from
an “officer of the United States.” No court ever before
has construed the term “officer of the United States”
in the constitutional sense to include the President.
Together with other textual and historical materials,
the evidence is compelling that Section 3’s
jurisdictional element does not include the President.
Furthermore, Section 3 is not self-executing.
More precisely, it cannot be enforced in court without
implementing congressional legislation under Section
5 of the Fourteenth Amendment (or other appropriate
legislative power). Only very rarely does the
Constitution enforce itself so as to secure a plaintiff
affirmative relief. Neither expressly nor by
implication does Section 3 provide a cause of action for
its own enforcement.
Nothing in the text of the Section explicitly
creates such a cause of action. Nor, in light of this
Court’s recent decisions, can a cause of action be
implied from Section 3. In Egbert v. Boule, 596 U.S.
482, 496 (2022), this Court recently counseled against
implying novel causes of action from the Fourteenth
Amendment.
A cause of action to disqualify a
Presidential candidate under Section 3 would be
unprecedented. Without compelling evidence that
Section 3’s drafters and ratifiers intended such a
result, this Court should not imply a cause of action.
Instead, the courts should look to Congress to enact
enforcement legislation under Section 5 of the 14th
Amendment. But no relevant congressional legislation
3
enabling the States or private persons to enforce
Section 3 exists here.
The difficulties of interpreting Section 3’s
offense element, such as defining having “engaged” in
“insurrection” “against the Constitution,” support the
conclusion that the Section is judicially non-selfexecuting. Guidance from federal justiciability
doctrines and separation of powers theory counsels
against a wide-reaching application of Section 3 by the
judiciary without congressional authorization.
References to the common understanding of the term
“insurrection” in the 19th century do not provide
adequate interpretative guidance to the courts,
because Section 3 expressly requires that the covered
offense be insurrection “against the Constitution”; and
the breadth of the term “insurrection” as so qualified
is, in the absence of legislative definition, uncertain
and indeterminate. If an “insurrection against the
Constitution” includes any interference with the
execution of any of the functions of the branches of the
federal government, it sweeps too widely. But if it
applies more narrowly only to some interferences, it is
hazardous to say, without congressional clarification,
exactly which interferences are included. At least in
the first instance, it is for Congress to define what
offenses are covered by Section 3.
4
ARGUMENT
I. A Former President is not within the
jurisdictional scope of Section 3 of the
Fourteenth Amendment
Section 3 of the Fourteenth Amendment
declares:
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.
U.S. Const. amend. XIV, § 3.
Section 3 has four elements. See Josh Blackman
& Seth Barrett Tillman, Is the President an “Officer of
the United States” for Purposes of Section 3 of the
Fourteenth Amendment?, 15 N.Y.U. J. L. & Liberty 1,
2–3 (2021). First, it has a jurisdictional element that
5
identifies those who are subject to its terms. These are
those 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.” Significantly,
there is no explicit reference in the jurisdictional
clause to those who took an oath as President or Vice
President.
Second, Section 3 has an offense element that
defines the conduct that triggers disqualification. It
refers to the conduct of a person covered by the
jurisdictional element who “shall have engaged in
insurrection or rebellion against the [the
Constitution], or given aid or comfort to the enemies
thereof.”
Third, Section 3 has a disqualification element.
The legal consequences for a covered person who is
found to have committed a covered offense are that he
or she shall not 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.”
Fourth and finally, Section 3 has an amnesty
element. This component allows Congress to remove a
disqualification: “Congress may by a vote of two-thirds
of each House, remove such disability.”
By its plain text, Section 3 does not apply to
those who have held the office of the Presidency or
seek to hold it. Section 3’s jurisdictional component
6
specifies exactly whom it covers. It applies only to
those who had taken an oath to “support” the
Constitution as a) “a member of Congress,” b) “an
officer of the United States,” c) “a member of any State
legislature,” or d) “an executive or judicial officer of
any State.” Petitioner, former President Donald
Trump, was not a member of Congress or of a state
legislature, or a state executive or judicial officer. For
Section 3 to apply in this case, therefore, the petitioner
must fall within the second category, “an officer of the
United States.” As we argue below, he does not.
The constitutional text indicates that the
Fourteenth Amendment’s Framers chose not to
include Presidents within Section 3. If they had
wanted to, they knew how to do so. Section 3
disqualifies officials involved with insurrection from
ever becoming an elector for “President and VicePresident.” Here, the Section specifically uses the
words “President” and “Vice President.” But it chooses
not to use those terms in the enumeration of officials
subject to its jurisdictional element. The natural
reading of the omission of the two elected members of
the Executive Branch is to exclude them from the
Section. The federal courts adopt a similar approach
in the statutory context. This Court refuses to read a
law to apply to the President unless it specifically and
clearly says so. Franklin v. Massachusetts, 505 U.S.
788, 800-01 (1992). Presumptively, Section 3 does not
jurisdictionally cover the President.
The constitutional text also makes clear that
Section 3’s use of the phrase “officer of the United
States” does not tacitly include the President. Four
7
other provisions of the original Constitution employ
the term in ways that establish that the President is
not an “officer of the United States.” Section 3 must be
read consistently with them.
First, Article II, Section 2’s Appointments
Clause distinguishes between the President and
Officers of the United States. The Clause provides that
the President may nominate, and with the advice and
consent of the Senate, may appoint “Ambassadors,
other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United
States.” U.S. Const. art. II, § 2, cl. 2 (emphasis added).
This Clause distinguishes the President from
appointed “Officers of the United States.” Indeed, the
Constitution specifies that the President is “elected,”
not appointed. U.S. Const. art. II, § 1, cl. 1. As Chief
Justice John Marshall observed, an “officer of the
United States” must be “an individual [who] is
appointed by government.” U.S. v. Maurice, 26 F. Cas.
1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall,
C.J., Circuit Justice).
Second, Article II’s Impeachment Clause
follows the distinction drawn in the Appointments
Clause. Article II expressly provides that “[t]he
President, Vice President and all civil Officers of the
United States, shall be removed” upon impeachment
and Senate conviction. U.S. Const. art. II, § 4
(emphasis added).
The carefully considered
specification of the President, as distinct from “all civil
Officers of the United States,” shows that the
President is not to be considered as belonging to the
latter class. If officers of the United States included
8
the President, then the Impeachment Clause’s listing
of the President would have been redundant – a
violation of Chief Justice Marshall’s dictum in
McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 41420 (1819), that every word of the Constitution must be
given meaning.
This conclusion is confirmed by the drafting
history of the Impeachment Clause. As Professor
Blackman and Tillman observe, “the phrase
‘[President, Vice President,] and other Civil officers of
the U.S.’ was changed to ‘President, Vice President,
and Civil Officers of the U.S.’ And in its final form, the
Impeachment Clause became: ‘President, Vice
President, and all civil Officers of the United States.’”
Blackman & Tillman, supra, at 9. These surgical
changes reveal that the Framers paid close and careful
attention to the precise meaning and scope of the term
“civil Officers of the United States.” They further show
that the Framers settled on language that made clear
that the President and Vice President were not “other”
civil Officers of the United States, but that “all” of the
latter belonged to a different constitutional category
from the former.
Justice Joseph Story, in his Commentaries on
the Constitution of the United States, reached exactly
that conclusion: he affirmed that the language of the
Impeachment Clause established that the President
and Vice President “were enumerated, as contradistinguished from, rather than as included in the
description of, civil officers of the United States.” 3
Joseph Story, Commentaries on the Constitution of
the United States § 791, at 259–60 (1833).
9
Third, Article VI’s Oath or Affirmation Clause
reads, in part:
The Senators and Representatives before
mentioned, and the Members of the several
State Legislatures, and all executive and
judicial Officers, both of the United States and
of the several States, shall be bound by Oath or
Affirmation, to support this Constitution.
U.S. Const. art. VI, cl. 3. The President is not
explicitly designated in this Clause, nor is the
President implicitly subsumed into the Clause’s
category for “all executive and judicial Officers[] . . . of
the United States.” The President is not
constitutionally required, before entering into office,
to swear an Article VI oath to “support” the
Constitution.
Instead, consistent with the President’s unique
constitutional role, Article II provides a separate
Presidential Oath Clause:
Before he enter on the Execution of his Office,
he shall take the following Oath or Affirmation:
“I do solemnly swear (or affirm) that I will
faithfully execute the Office of President of the
United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of
the United States.”
U.S. Const. art. II, § 1, cl. 8. The jurisdictional
language of Section 3 instead echoes Article VI’s Oath
10
Clause. The connection between Section 3’s
jurisdictional element and Article VI’s Oath Clause
further indicates that Section 3 covers office-holders
who took Article VI’s oath, while it does not cover the
President, who takes a separate Article II oath.
Moreover, the Article VI Oath Clause requires
the officers subject to it to swear an oath (or make an
affirmation) to “support” the Constitution. The Article
II Presidential Oath Clause prescribes a form of words
for the President that does not require him to
“support” the Constitution, but rather to “preserve,
protect and defend” it. Section 3 of the Fourteenth
Amendment applies to “officer[s] of the United States”
who have taken an oath to “support” the Constitution.
The fact that the President – unlike officers of the
United States – does not take an oath to “support” the
Constitution further confirms that Section 3 does not
include the President within its jurisdiction. Instead,
Section 3 applies only to those officers who have taken
the Article VI oath.
Note that the Article II Presidential Oath
Clause explicitly states that the Presidency is an
“Office.” But it does not follow that the President is
therefore an “Officer of the United States.” The fact
that the Presidential oath is constitutionally distinct
from the Article VI oath prescribed for “Officers of the
United States” underscores that the President is not
in the latter category. Some might incorrectly infer
that the President is an “officer of the United States”
from constitutional language referring instead to
“offices.”
For example, some scholars cite the
Presidential Oath Clause’s reference to “Office” to
11
show that the President must be an “officer of the
United States.” William Baude & Michael S. Paulsen,
The Sweep and Force of Section Three, 172 U. Pa. L.
Rev. (forthcoming 2024) (manuscript at 109),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=
4532751 (“If the Presidency is not an office, nothing
is.”) But that Article II Clause, when compared with
the Article VI Oath Clause, shows that the President
is not an “Officer of the United States.”
Fourth, the Commission Clause provides that
the President “shall Commission all the Officers of the
United States.” U.S. Const. art. II, § 3. The President
does not commission himself, the Vice President,
Senators, or Members of Congress. Instead, the
Constitution declares that the President is elected.
The President does, however, commission appointed
officials, such as those who serve in the Executive
Branch. Here again, as it does in the Appointments,
Impeachment, and Oath Clauses, the Constitution
draws a clear line between the President and Officers
of the United States. Just as Chief Justice John
Marshall declared in McCullough that every word in
the Constitution must be given a meaning, we also
cannot give identical words in the Constitution
different meanings.
The term “officer of the United States,” as used
in Section 3 of the Fourteenth Amendment, must be
read to have the same meaning as it obviously carries
in the four other places of the original Constitution.
There is no powerful, contrary evidence that the
Fourteenth Amendment’s use of “officers of the United
States” must deviate from the meaning it has
12
throughout the original Constitution’s text. Nor is
there any evidence of a generally recognized semantic
shift in the meaning of “officers of the United States”
between the adoption of the Constitution and the
ratification of the Fourteenth Amendment. Some
might argue that the term “officer of the United
States” should be interpreted by reference to the term
“office” as it is used elsewhere. See, e.g., Baude &
Paulsen, supra, at 109 (arguing that the President is
an officer because “Article II refers to the ‘office’ of
President innumerable times”). They make the
mistake of focusing on the wrong constitutional term.
They should have looked instead at the identical term,
“Officer of the United States,” as it appears in four
other constitutional texts, to determine what that
term means in Section 3.2
These textual conclusions are not disturbed by Attorney
General Henry Stanbery’s 1867 opinions on the meaning and
application of the Reconstruction Acts, which incorporated the
proposed (but still unratified) Section 3 by reference in a
provision disenfranchising anyone who had “taken an oath as a
member of the Congress of the United States, 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, and afterwards engaged in
insurrection or rebellion against the United States, or given aid
or comfort to the enemies thereof.” The Reconstruction Acts, 12
U.S. Op. Atty’s Gen. 141, 143 (1867). Stanbery read the statutory
term “officer of the United States” as applying “it its most general
sense, and without any qualification, as legislative, or executive,
or judicial . . . it was intended to comprehend military as well as
civil officers of the United States.” Id. at 158. Those advocating
President
Trump’s
disqualification
map
Stanbery’s
interpretation onto the Reconstruction Act, and then attempt to
map the Act onto Section 3. But this move is obviously erroneous.
According to Stanbery, the Reconstruction Act includes Senators
2
13
II. Section 3 of the Fourteenth Amendment is
Not
Judicially
Enforceable
Without
Implementing Legislation
Only very rarely does a constitutional clause create
an implied private cause of action.3 Section 3’s text
does not provide for judicial enforcement at the behest
of a private litigant, nor does it explicitly authorize
such enforcement by a state. The Section should not
be read to enable such litigation absent any
and Representatives among “officers of the United States.” But
the Constitution, including Section 3, does not. That conclusion
had been confirmed early in the 19th century, with the attempted
impeachment of a Senator: the attempt was widely considered to
have failed because a Senator was not an “officer of the United
States” and hence not subject to impeachment. See Story, supra,
at § 791 (impeachment of Senator Blount). If Stanbery’s
interpretation of the Act were mechanically applied to Section 3
as well, then Section 3’s express reference to “member[s] of
Congress” would have been superfluous. It was not.
The federal courts have regularly rejected, on Article III
standing grounds, the claims of plaintiffs to enforce
constitutional disqualifications or prohibitions in the absence of
applicable legislation. See, e.g., Ex parte Levitt, 302 U.S. 633
(1937) (Ineligibility Clause); Schlesinger v. Reservists Committee
to Stop the War, 418 U.S. 208 (Incompatibility Clause); McClure
v. Carter, 513 F. Supp. 265 (D. Idaho 1981) (3 judge district court)
(Ineligibility Clause); Blumenthal v. Trump, D.C. Cir., No. 195237) slip op. (Feb. 7, 2020) (Foreign Emoluments Clause),
https://www.cadc.uscourts.gov/internet/opinions.nsf/2EFD382E6
5E33B3C852585070055D091/$file/19-5237-1827549.pdf.
3
14
enforcement mechanism that Congress has enacted
under its Section 5 (or other appropriate) powers.
In Armstrong v. Exceptional Child Center, Inc.,
575 U.S. 320 (2015), this Court held that the
Supremacy Clause, “certainly does not create a cause
of action.” Id. at 325. The Court rejected any notion
that that clause, in itself, gave “affected parties a
constitutional (and hence congressionally unalterable)
right to enforce federal laws against the States.” Id. It
was “unlikely that the Constitution gave Congress
such broad discretion with regard to the enactment of
laws, while simultaneously limiting Congress’s power
over the manner of their implementation, making it
impossible to leave the enforcement of federal law to
federal actors.” Id. at 325-26.
Armstrong’s reasoning undermines any claim that
Section 3 creates an implied private right of action.
Section 5 of the 14th Amendment specifically vests in
Congress a broad discretionary power over how
Section 3 is to be enforced. It is unlikely that Section
3 simultaneously limits Congress’ enforcement
discretion by vesting enforcement authority in any
number of private litigants as well. Moreover, if
Section 3 did create such a private cause of action,
then that right would be “constitutionally
unalterable,” and could not be constrained or divested
by an Act of Congress.
The conclusion of the Colorado Supreme Court
below that Section 3 of the Fourteenth Amendment is
judicially self-executing would severely incapacitate
Congress. Congress could not decide how to pursue the
policies behind Section 3; it could not channel or
control the enforcement of Section 3. Consequently,
15
uniform national enforcement would have to give way
to the vagaries of private enforcement in State and
federal courts throughout the country. The results
would be extremely disruptive to the national political
system by inviting different standards of eligibility for
office in as many as fifty jurisdictions and shattering
public confidence in our choices of a President or
Members of Congress. It is impossible to believe that
Section 3 was designed to produce such results. Cf.
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 822
(1995) (“Permitting individual States to formulate
diverse qualifications for their representatives would
result in a patchwork of state qualifications,
undermining the uniformity and the national
character that the Framers envisioned and sought to
ensure. “)
Chief Justice Salmon Chase’s opinion (as Circuit
Justice) in Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va.
1869), confirms the conclusion that Section 3 is not
judicially self-executing. Although not binding
precedent on this Court, Griffin is highly probative
evidence of the original public meaning of Section 3. It
was decided within a year of the Fourteenth
Amendment’s ratification, and it issued from the pen
of the Chief Justice of the United States. Chief Justice
Chase was a seasoned antislavery lawyer who had
been a leading abolitionist before the Civil War, who
had served as President Abraham Lincoln’s Secretary
of Treasury, and whom Lincoln had appointed as Chief
Justice in 1864. Chase personally, and closely,
witnessed the events of the Civil War and the early
Reconstruction, including the debates over the
drafting and ratification of the Fourteenth
Amendment. (Indeed, he advised President Andrew
16
Johnson to abandon his objections to the proposed
amendment.)
Griffin’s Case was an appeal from a Virginia state
court’s grant of habeas relief to Caesar Griffin, who
had been sentenced to imprisonment for two years by
a state trial judge. Griffin maintained that the state
judge had been a member of the Virginia state
legislature and later had joined the Confederacy, and
hence was disqualified to hold office under Section 3.
Chief Justice Chase denied habeas relief on three
separate grounds, one of which concerned the meaning
of Section 3. Chief Justice Chase framed this question
as follows: “whether upon a sound construction of the
[fourteenth] amendment, it must be regarded as
operating directly, without any intermediate
proceeding whatever, upon all persons within the
category of prohibition [in Section 3], and as depriving
them at once, and absolutely, of all official authority
and power.” Id. at 23. Chief Justice Chase held that it
did not.
Chief Justice Chase announced and applied two
canons of constitutional construction. First, Chief
Justice Chase affirmed the primacy of “plain words or
clear reason.” Id. at 24. But neither “plain words” nor
“clear reason” dictated acceptance of Griffin’s reading
of Section 3. In such a case, recourse to canons of
construction was necessary.
First, then, “great
attention is properly paid to the argument from
inconvenience.” Id. Chief Justice Chase found that the
potential consequences of upholding Griffin’s claim
would be extremely damaging. Then Chief Justice
Chase invoked a second canon of construction that was
“entitled to equal consideration.” Id. at 25. “Of two
17
constructions, either of which is warranted by the
words of an amendment of a public act, that is to be
preferred which best harmonizes the amendment with
the general terms and spirit of the act amended.” Id.
at 25. “This principle,” Chief Justice Chase affirmed,
“forbids a construction of the amendment, not clearly
required by its terms, which will bring it into conflict
or disaccord with the other provisions of the
constitution.” Id. Chief Justice Chase found that
Griffin’s construction fell afoul of this canon.
Interpreting Section 3 to be judicially non-selfexecuting, Chief Justice Chase concluded, presented a
reasonable alternative construction that met these
two conditions.
Chief Justice Chase buttressed his reading of
Section 3 with other language from the Fourteenth
Amendment. First, he pointed to Section 5. Chief
Justice Chase obviously assumed that by vesting the
power to create enforcement mechanisms for the
Fourteenth Amendment in Congress, the Amendment
had not authorized implementation of all of its
provisions by private litigants through the courts.
Second, he argued that “[t]here are, indeed, other
sections than the third, to the enforcement of which
legislation is necessary; but there is no one which
more clearly requires legislation in order to give effect
to it.” Id. at 26. Chief Justice Chase thought that the
enforcement of Section 3 “clearly requires”
implementing legislation, id., more so than any of the
amendment’s other provisions, including Section 1.
Third, he noted the amnesty element of Section 3,
under which Congress could remove a disability
imposed under Section 3 by a two-thirds vote of each
House. The amnesty element, Chief Justice Chase
18
noted, “gives to congress absolute control of the whole
operation of the amendment.” Id.
This is not to argue for the correctness of every
step of Chief Justice Chase’s reasoning – although his
conclusion is sound. Rather, the point is that in 1869
– within a year Section 3’s ratification – the Chief
Justice understood the Amendment to mean that
Congress, not the courts or private litigants, had the
authority to decide how and by whom Section 3 was to
be enforced. Chief Justice Chase’s holding accords
with the strong sense of his fellow Republicans in
Congress – the very people who had drafted Section 3,
debated it for two years, and proposed it for
ratification – that Congress, not private litigants or
courts, should play the lead role in enforcing the
Section.
Not long after Chief Justice Chase’s decision,
Congress exercised its Section 5 power to enact the
Second Enforcement Act of 1871. The Act allowed a
federal prosecutor to remove an officer by a writ of quo
warranto brought in federal court, but withheld this
power from state prosecutors and courts. It seems
likely that the members of the enacting Congress were
aware of the recent decision of the Chief Justice on a
matter of extraordinary importance and sensitivity. In
any event, Congress’s action is important evidence of
the original public meaning of Section 3. Had
Congress disagreed with Griffin’s Case and wished to
permit private enforcement of Section 3 (or even
enforcement by state courts and officials), it could
have used its Section 5 authority to choose that course
instead.
19
Finally, during the congressional debates over
Section 3’s enforcement, the prominent and influential
Senator Lyman Trumbull affirmed that Section 3 was
not judicially self-executing but required Congress to
create an enforcement mechanism. Trumbull argued:
Section 3 declares certain classes of persons
ineligible for office, being those who, having
once taken an oath to support the Constitution
of the United States, afterwards went into
rebellion against the Government of the United
States. But notwithstanding that constitutional
provision we know that hundreds of men are
holding office who are disqualified by the
Constitution. The Constitution provides no
means for enforcing itself, and this is merely a
bill to give effect to the fundamental law
embraced in the Constitution (emphasis
added).[4 ]
Chief Justice Chase’s analysis of Section 3 in 1869,
coupled with Congress’s enactment of the Second
Enforcement Act, provide compelling evidence of the
original public meaning of Section 3. These sources
support the view that, in its original public meaning,
4 Quoted in Kurt T. Lash, The Meaning and Ambiguity of Section
Three
of
the
Fourteenth
Amendment,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838, at
46. Others in the Reconstruction Era Congress also took it for
granted, with Trumbull, that the Constitution was non-selfexecuting. In an 1870 debate, Representative Davis of New York
remarked that “it was long ago settled that the Constitution does
not execute itself.” Mr. Davis (New York); Congressional Globe,
House of Representatives, 41st Congress, 2nd Session 3881-3882
(May 27, 1870).
20
Section 3 did not, in and of itself, authorize the
disqualification of covered persons seeking or holding
federal office by private litigants in State or federal
courts.
III. Section 3’s Offense Element Requires
Congressional Legislation
Section 3’s offense element speaks of a covered
person who “shall have engaged in insurrection or
rebellion against the same” (emphasis added). “[T]he
same” refers back to the immediately preceding
phrase “the Constitution of the United States.” Not all
“insurrections” are covered; rather, the language
reaches only those that are “against the Constitution.”
But the text does not define those “insurrections” that
fall within Section 3’s sweep.
While the term “insurrection” may have had a
relatively well-understood common law meaning at
the time of ratification, the term “insurrection against
the Constitution” did not. The latter term likely
subsumes the ordinary elements of “insurrection”:
violence or the threat of it; the actual or threatened
violence is the work of a number of different actors
working in concert; law enforcement officials are
unable to control those actors; the actions have the
intent and effect of interfering with the operation of
the law. The further requirement that such action be
directed “against the Constitution” indicates that only
insurrection against federal law, not state law, is
relevant under Section 3. But it seems unlikely that
any violence directed against federal law enforcement,
at however low a level, however brief, and however
21
limited its impact, should count as “insurrection
against the Constitution.” Common law does not
answer the question.
An initially attractive definition might include
within the offense element an “insurrection” that
interferes with the execution of a responsibility or
function that the Constitution assigns to the federal
government it or one of its branches. On this
understanding, an insurrection “against the
Constitution” equates to an insurrection “to hinder or
prevent the execution” of the Constitution.
Respondents would attempt to fit the events of
January 6 into this definition thus: Congress was
seeking to discharge its function under the Twelfth
Amendment of witnessing the counting of the votes of
the Presidential electors. Disrupting the electoral vote
count would interfere with the Vice President and
Congress’s efforts to execute their roles under the
Twelfth Amendment.
The problem with this reading, however, is that
hindering or preventing the execution of the
Constitution covers an extremely broad range of
federal activities. Without more specific congressional
definition, any interference by a group of
insurrectionists with the performance of any
constitutional functions or duties assigned to the
federal government would amount to an attempt to
prevent the execution of the Constitution. For
example, the Constitution assigns to the Senate the
responsibility to advise and consent to presidential
nominees to certain offices. Suppose that a crowd of
demonstrators burst into the Senate while it was
debating whether to confirm a nominee, overcame
22
police, and interfered with the vote on the nomination.
The crowd’s actions would be an effort to prevent or
hinder the “execution” of the Constitution.
Demonstrations that prevented the House from voting
on a measure to provide military aid to a foreign ally
would also seem to rise to the level of an insurrection
under respondent’s approach. Demonstrations in front
of this Court that threatened violence and that
disturbed its hearing of a case might also count as an
insurrection under respondents’ theory.
The potential breadth of what it means to
“execute” the Constitution, and thus to interfere with
its “execution,” is illustrated by In re Debs, 158 U.S.
364 (1885), in which this Court denied habeas relief to
a person imprisoned under a lower court’s criminal
contempt authority for failing to comply with that
court’s injunction in a labor dispute. Defendants in
that case had interfered with laws enacted pursuant
to Congress’s authority to regulate interstate
commerce and the carrying of the mails. Id. at 581.
Under respondents’ theory, violent union actions that
violated labor laws would amount to an insurrection
under Section 3. Further underscoring respondent’s
boundless interpretation, the Constitution charges the
President with the faithful execution of the law.
Insurrectionary attempts to prevent or hinder the
implementation of federal statutory law would thus
also appear to be insurrections “against the
Constitution.”
23
The task of defining the offense element of Section
3 belongs, at least in the first instance, to Congress. 5
Defining the scope and limitations of the offense
element is not like defining the meaning of
“insurrection” in the common law or under a statute.
There is simply insufficient evidence for state courts
to decide, without congressional guidance, what this
component of Section 3 means. And that in turn
buttresses the conclusion that the Section is not
judicially self-executing.
Even if this Court were to conclude that Congress
has taken steps to implement Section 3, none of these
possible measures would apply to the Petitioner.
Congress’s punishment of insurrection occurs at 18
U.S.C. § 2383. That law declares that “whoever
incites, sets on foot, assists, or engages in any rebellion
or insurrection against the authority of the United
States or the laws thereof, or gives aid or comfort
thereto,” is subject to prosecution for a felony.
Congress set the penalty at a fine and/or
imprisonment for up to ten years and rendering a felon
“incapable of holding any office under the United
States.” To the extent that the federal government
even permits a judicial proceeding against anyone for
insurrection against the United States, Section 2383
requires that a federal prosecutor bring charges in
federal court, rather than allowing the states to invent
their own definitions of insurrection using their own
idiosyncratic procedures.
5 To be sure, Congress’ determination is subject to this Court’s
review. See City of Boerne v. Flores, 521 U.S. 507, 519-28 (1997).
24
But more importantly, even if 18 U.S.C. § 2383
were considered an implementation of Section 3 of the
Fourteenth Amendment, petitioner has not been
convicted in federal court of such an offense. Not only
has the Petitioner not been convicted, he has not even
been charged. The U.S. Department of Justice
declined to include Section 2383 in its August 1, 2023,
indictment of the petitioner. See Indictment, United
States of America v. Donald J. Trump, No. 1:23-cr00257-TSC
(D.D.C.)
Aug.
1,
2023,
https://www.justice.gov/storage/US_v_Trump_23_cr_
257.pdf. Instead, the Special Counsel of the U.S.
Justice Department charged Petitioner with
conspiracy to defraud the United States, obstruction
of an official proceeding, and conspiracy to deprive
voters of their constitutional rights. Id.
It might even be the case that Congress could
carry out Section 3 of the Fourteenth Amendment
through impeachment. A President who “engaged in
insurrection or rebellion” against the Constitution
would certainly have committed “Treason, Bribery, or
other high Crimes and Misdemeanors” sufficient for
impeachment and removal from office. U.S. Const. art.
II, § 4. In its 2021 impeachment of the Petitioner, the
U.S. House of Representatives approved a first article
charging him with “incitement of insurrection.” A
Resolution Impeaching Donald John Trump,
President of the United States, for high crimes and
misdemeanors, H.Res.24, 117th Cong., 1st Sess. (2021).
The U.S. Senate, however, acquitted the Petitioner
with 57 voting guilty and 43 voting not guilty, ten
votes short of the two-thirds required for removal.
Roll Call Vote No. 59, Feb. 13, 2021, 117th Cong., 1st
25
Sess.,
https://www.senate.gov/legislative/LIS/roll_call_votes
/vote1171/vote_117_1_00059.htm. Thus, the only arm
of the federal government to have rendered an official
judgment on the question in this case has found that
the Petitioner did not engage in insurrection. In the
absence of any factual or legal conclusion to the
contrary by any branch of the United States
government, this Court should pre-empt decisions by
the states attempting to implement Section 3 of the
Fourteenth Amendment.
CONCLUSION
For the foregoing reasons, this Court should
reverse the decision below of the Supreme Court of
Colorado.
Respectfully submitted,
JOHN YOO
Counsel of Record
1550 Tiburon Blvd. #G-503
Tiburon, CA 94920
(510) 600-3217
johncyoo@gmail.com
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.