Amicus Curiae Brief — Donald J. Trump, Petitioner v. Norma Anderson, et al.

Supreme Court briefJan 18, 2024

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No. 23-719

In the Supreme Court of the United States

DONALD J. TRUMP, Petitioner,

NORMA ANDERSON, ET AL.

On Writ of Certiorari

to the Supreme Court of Colorado

BRIEF OF FORMER ATTORNEYS GENERAL

EDWIN MEESE III, MICHAEL B. MUKASEY,

AND WILLIAM P. BARR; LAW PROFESSORS

STEVEN CALABRESI AND GARY LAWSON;

AND CITIZENS UNITED AS AMICI CURIAE

SUPPORTING PETITIONER

MICHAEL BOOS

DANIEL H. JORJANI

CITIZENS UNITED

CITIZENS UNITED FOUNDATION

1006 Pennsylvania Avenue, S.E.

Washington, DC 20003

(202) 547-5420

GENE C. SCHAERR

Counsel of Record

KENNETH A. KLUKOWSKI

JUSTIN A. MILLER

AARON C. WARD

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amici Curiae

January 18, 2024

QUESTION PRESENTED

Did the Colorado Supreme Court err in ordering

President Trump excluded from the 2024 presidential

primary ballot?

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION AND INTEREST OF

AMICI CURIAE ..................................................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 6

II.

Section 3 Does Not Disqualify

Presidential Candidates from the

Ballot. .............................................................. 6

Section 3’s text and structure

show

that

candidates

for

President are excluded from its

reach. ....................................................... 7

Prior drafts of Section 3 confirm

that excluding the President was

deliberate. .............................................. 13

Criticism from the other side of

the debate cannot withstand

scrutiny. ................................................. 16

Section

Requires

Enabling

Legislation Under Section 5, Such as

18 U.S.C. § 2383............................................ 19

Article

II’s

presidential

qualifications do nothing to

suggest that Section 3 is selfexecuting................................................ 19

iii

The Fourteenth Amendment

contains both provisions that are

self-executing and those that

require Congress to legislate. ............... 20

Section 3’s history reveals that it

requires enabling legislation. ............... 21

Congress

enacted

relevant

legislation in 18 U.S.C. § 2383,

but President Trump is not

accused of violating that statute. ......... 24

III. It Would Be Highly Imprudent to

Interpret Section 3 in Any Way that

Empowers Partisan Officials to

Unilaterally

Disqualify

Political

Opponents from Public Office. ..................... 27

CONCLUSION .......................................................... 30

TABLE OF AUTHORITIES

Cases

Page(s)

Baldwin v. New York,

399 U.S. 66 (1970) .................................................. 25

Barnhart v. Sigmon Coal Co., Inc.,

534 U.S. 438 (2002) ................................................ 17

Bath Iron Works Corp. v. Director, Off.

of Workers’ Comp. Programs,

506 U.S. 153 (1993) ................................................ 17

Benton v. Maryland,

395 U.S. 784 (1969) ................................................ 25

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ............................................ 27

Caperton v. A.T. Massey Coal Co., Inc.,

556 U.S. 868 (2009) ................................................ 20

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................................ 21

Clinton v. Jones,

520 U.S. 681 (1997) ................................................ 12

Coy v. Iowa,

487 U.S. 1012 (1988) .............................................. 26

Dubin v. United States,

599 U.S. 110 (2023) ................................................ 11

Duncan v. Louisiana,

391 U.S. 145 (1968) ................................................ 25

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ................................................ 21

Griffin’s Case,

11 F. Cas. 22 (C.C.D. Va. 1869) ....................... 23, 24

Hamling v. United States,

418 U.S. 87 (1974) .................................................. 11

In re Winship,

397 U.S. 358 (1970) ................................................ 25

Klopfer v. North Carolina,

386 U.S. 213 (1967) ................................................ 26

Malloy v. Hogan,

378 U.S. 1 (1964) .................................................... 25

McDonnell v. United States,

579 U.S. 550 (2016) ................................................ 12

Nixon v. Fitzgerald,

457 U.S. 731 (1952) ................................................ 12

NLRB v. SW Gen., Inc.,

580 U.S. 288 (2017) ................................................ 11

Roadway Exp., Inc. v. Piper,

447 U.S. 752 (1980) ................................................ 11

Saenz v. Roe,

526 U.S. 489 (1999) ................................................ 20

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) .......................................... 20, 21

United States v. Texas,

599 U.S. 670 (2023) ................................................ 28

Constitutional Provisions

U.S. Const. amend. XIV .............................................. 4

U.S. Const. amend. XIV, § 3................ 4, 5, 7, 8, 19, 21

U.S. Const. art. I, § 2, cl. 3 ........................................ 14

U.S. Const. art. I, § 3, cl. 7 .......................................... 9

U.S. Const. art. II ........................................................ 4

U.S. Const. art. II, § 1, cl. 2 ....................................... 19

U.S. Const. art. II, § 1, cl. 4 ....................................... 20

U.S. Const. art. II, § 1, cl. 5 ....................................... 19

U.S. Const. art. II, § 1, cl. 6 ................................. 17, 20

U.S. Const. art. II, § 2 ................................................. 8

U.S. Const. art. II, § 2, cl. 2 ....................................... 20

U.S. Const. art. II, § 3 ................................................. 9

U.S. Const. art. II, § 4 ........................................... 9, 18

Statutes

18 U.S.C. § 2383 .............................................. 5, 19, 24

28 U.S.C. § 533 .......................................................... 17

Act of Feb. 8, 1894, ch. 25, § 1, 28 Stat. 36 ............... 24

Enforcement Act of 1870, ch. 114, 16 Stat. 140........ 24

Other Authorities

Akhil Reed Amar,

The Bill of Rights and the Fourteenth

Amendment, 101 Yale L.J. 1193 (1992) ................ 22

Annals of Cong. (1799) .............................................. 10

Cong. Globe, 38th Cong., 1st Sess. (1863) ................ 11

Cong. Globe, 39th Cong., 1st Sess. (1866) ... 13, 14, 16,

22, 23

vii

Cong. Rsch. Serv.,

R46013, Impeachment and the Constitution

(2023) ...................................................................... 10

Expulsion Case of William Blount

of Tenn. (1797), U.S. Senate .................................. 10

Eric Foner,

Reconstruction: America’s Unfinished

Revolution, 1863–1877 (updated ed. 2014) ........... 15

House Vote No. 480,

38th Cong., 2d Sess. (Jan. 31, 1865) ..................... 15

Impeachment Trial of Senator

William Blount, 1799, U.S. Senate ....................... 10

Impeachment Trial of Senator

William Blount, 1799, U.S. Senate

(Speech of James Asherton Bayard, Sr.,

Chair of Mgrs., H. of Reps.

(Jan. 3, 1799))......................................................... 10

Jefferson Davis: A Featured Biography,

U.S. Senate............................................................. 14

Kenneth A. Klukowski,

Citizen Gun Rights: Incorporating

the Second Amendment Through

the Privileges or Immunities Clause,

39 N.M. L. Rev. 195 (2009) .................................... 22

Kurt Lash,

Reconstruction Amendments:

Essential Documents (2021)................................... 23

viii

Kurt T. Lash,

The Meaning and Ambiguity of

Section Three of the Fourteeenth

Amendment (Oct. 31, 2023,

rev. Dec. 28, 2023)...................... 7, 12, 14, 16, 22, 23

Ruling of the Secretary of State,

In re: Challenges of Kimberley Rosen, et al.

to Primary Nomination Petition of

Donald J. Trump, Republican Candidate

for President of the United States,

2023 WL 9109758 (Dec. 28, 2023) ......................... 29

Antonin Scalia & Bryan A. Gardner,

Reading Law: The Interpretation of

Legal Texts (2012) ............................................ 11, 17

Jane C. Timm & Amanda Terkel,

Republican Secretary of State Threatens to

Kick Biden Off Ballot as Trump Payback,

NBC News (Jan. 5, 2024)....................................... 28

Elizabeth Zavala,

Lt. Gov. Dan Patrick Threatens to Remove

President Biden from the Texas Ballot,

Houston Chron. (Dec. 26, 2023)............................. 28

INTRODUCTION AND

INTEREST OF AMICI CURIAE 1

The decision under review is based on a

misinterpretation of Section 3 of the Fourteenth

Amendment, and would create a precedent with

ruinous consequences for our democratic republic.

Contrary to the Colorado Supreme Court’s

determination, Section 3 does not cover the office of

President of the United States. It is also not selfexecuting. And even a cursory consideration of how

such an interpretation could be applied in the future

confirms how disastrous it would be to the United

States’ form of government. Thus, whatever one

thinks of the behavior of former President Trump on

January 6, 2021, the Colorado Supreme Court’s

decision should be reversed.

Proper interpretation of Section 3 is an issue of

overriding importance to amici curiae. Edwin Meese

III served as the seventy-fifth Attorney General of the

United States after having served as Counselor to the

President, and is now the Ronald Reagan

Distinguished Fellow Emeritus at the Heritage

Foundation. Michael B. Mukasey served as the eightyfirst Attorney General of the United States and

previously served as a judge on the U.S. District Court

for the Southern District of New York. William P. Barr

served as both the seventy-seventh and the eightyfifth Attorney General of the United States, after

1 This brief was not authored in whole or in part by counsel for

any party and no person or entity other than amici curiae or their

counsel has made a monetary contribution toward the brief’s

preparation or submission. All parties were notified of the intent

to file this brief.

having served as Deputy Attorney General, and prior

to that the Assistant Attorney General of the Office of

Legal Counsel. During their tenures as Attorney

General, the Department of Justice steadfastly

defended the rule of law with respect to the

Fourteenth Amendment.

For their part, Professors Calabresi and Lawson

are former Department of Justice officials as well as

scholars of the original public meaning of the

Constitution. Members of this Court have cited their

work in the past. See, e.g., United States v. Vaello

Madero, 596 U.S. 159, 169 (2022) (THOMAS, J.,

concurring) (citing Calabresi); id. at 181, 185 n.1

(GORSUCH, J., concurring) (citing Lawson).

Finally, Citizens United and Citizens United

Foundation are dedicated to restoring government to

the people through a commitment to limited

government, federalism, individual liberty, and free

enterprise. They regularly participate as litigants

(e.g., Citizens United v. Federal Election Comm’n, 558

U.S. 310 (2010)), and amici in important cases in

which these fundamental principles are at stake.

Citizens United is a 501(c)(4) nonprofit social welfare

organization, and Citizens United Foundation is a

501(c)(3) nonprofit educational and legal organization.

SUMMARY OF ARGUMENT

Whatever one thinks of the behavior of former

President Trump in the wake of the 2020 election,

Section 3 of the Fourteenth Amendment does not

disqualify him from the presidential ballot, and it

cannot do so based on the finding of a county court in

Colorado that he “engaged” in an “insurrection” on or

leading up to January 6, 2021.

I. Most fundamentally, Section 3 does not cover

candidates for President of the United States. This is

evident in Section 3’s text, which omits the President,

instead specifying certain offices such as Senator and

Representative. Earlier versions of the proposed text

included President and Vice President, but later

versions excluded those offices, and instead

disqualified presidential electors who would choose the

occupants of the presidential and vice presidential

offices.

Historical records, moreover, reveal that the

Framers and ratifiers of the Fourteenth Amendment

were not concerned that a Confederate leader could

attain the presidency. They were, however, concerned

that former Confederates might be elected to the

House or Senate, which explains why those offices are

enumerated in Section 3. Indeed, Confederate

President Jefferson Davis served in the Senate until

the beginning of the Civil War, and Confederate Vice

President Alexander Stephens was elected to the

House after the war. Winning offices in States of the

former Confederacy was the only realistic risk, and

Section 3 was tailored to address that concern. Media

attention at the time was sufficient to ensure that

state ratifiers would be familiar with these

congressional debates.

The text and structure of Section 3 confirm this

reading. The text speaks to a hierarchy of public offices

in descending rank order, and its reference to an

“officer of the United States” low in that hierarchical

list cannot include a President because an office

“under the United States” and “officer of the United

States” did not include the presidency as those terms

were historically understood. The interpretive canons

of expressio unius and noscitur a sociius buttress this

conclusion, especially given the President’s singular

status among public offices. The descending

hierarchical cascade in Section 3 also mirrors other

lists of officers in the Constitution, reinforcing that, if

the President were included, he would be listed first,

instead of grouped with a catch-all phrase toward the

bottom of the list. Congressional debates from 1799

through the Civil War show a consensus favoring this

view.

II. Nor, in any event, is Section 3 self-executing.

Article II is relevant here by analogy: Article II’s

presidential qualifications are structured as selfexecuting provisions, but other Article II provisions

are not, leaving textual clues as to which provisions

require legislation and which do not.

The Fourteenth Amendment likewise contains

both types of provisions. Several provisions, such as

those in Section 1, do not require legislation for their

operation, though Congress enacted legislation to

expound those protections in statutes such as Title

VII. But Section 3 is entirely dependent upon

legislation passed pursuant to Section 5, suggested in

part by Section 3’s reference to a supermajority vote

needed to reverse the Section’s effects.

Section 3’s history also shows that it requires

enabling legislation as authorized by Section 5.

Debates by leading members in Congress such as John

Bingham, Thaddeus Stevens, and Lyman Trumbull

show a consensus view on that point, both before and

after the Amendment’s passage.

The only meaningful judicial pronouncement at the

time took the same view: Chief Justice Chase in

Griffin’s Case wrote that only Congress could establish

a framework to adjudicate Section 3 disability

allegations.

And indeed, Congress did just that, passing a

statute in 1870 that was partially repealed in 1894,

but leaving in place the federal insurrection statute,

18 U.S.C. § 2383, which specifies that those convicted

under it are disqualified from office. But President

Trump has never even been charged with violating

Section 2383, much less convicted under it. And, for

any potential defendant, proceedings following such a

charge would be governed by all the rights secured by

the Fourth, Fifth, Sixth, and (for proceedings by a

State) Fourteenth Amendments. Congress could also

enact implementing statutes that would be civil rather

than criminal, but has not done so.

III. For practical and institutional reasons, too,

this Court should resist any interpretation of Section

3 that empowers partisan public officials to

unilaterally disqualify politicians from the opposing

party—and especially in this case, the current leader

of the opposition party—from the ballot. The

insurrection statute is on the books, and Congress has

not to date provided any alternative mechanism for

disqualifying candidates.

The danger of the Colorado Supreme Court’s

approach becomes readily apparent when one

considers a hypothetical in which the partisan shoe is

on the other foot. If the Colorado decision were correct,

the Georgia Secretary of State, a Republican, could

unilaterally disqualify President Biden, a Democrat,

from that swing State’s ballot one day before the ballot

certification deadline—perhaps finding that some of

President Biden’s policies were lawless in such a

manner as to constitute, in the Secretary’s view, an

“insurrection.” Other Republican officials are

threatening to do just that. This Court should resist

any understanding of Section 3 that permits such

political gamesmanship, from either side.

ARGUMENT

Section 3 Does Not Disqualify Presidential

Candidates from the Ballot.

The Colorado Supreme Court declared that former

President Trump engaged in an “insurrection” because

of his role in the events that led to the January 6, 2021,

riot at the Capitol Building when the electoral votes

from the 2020 presidential election were being

counted, and that Section 3 therefore bars him from

the presidential ballot. However, as shown below,

Section 3’s disqualification does not apply to someone

seeking the office of President of the United States.

Hence, even if the conclusion that he engaged in an

insurrection were correct, President Trump cannot be

excluded from any presidential election ballot on that

basis. 2

Section 3’s text and structure show that

candidates for President are excluded

from its reach.

Section 3 provides:

No person shall be a Senator or Representative

in Congress, or elector of President and VicePresident, or hold any office, civil or military,

under the United States, 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. Obviously, although the

text specifies presidential “electors,” as well as many

other positions, as offices that one may not hold if one

has “engaged in insurrection,” the text does not

expressly preclude such people from seeking the office

of President or Vice President. Thus, if the exclusion

in that Section applies to the office of President, it can

2 Portions of Part I of this brief, and many of the sources cited,

are derived from Kurt T. Lash, The Meaning and Ambiguity of

Section Three of the Fourteeenth Amendment (Oct. 31, 2023, rev.

Dec. 28, 2023), available at http://tinyurl.com/dykn27n2

(hereinafter “Lash”).

only be because that office is deemed an “office ***

under the United States.” For several reasons, that

reading of this phrase is not the best reading, if it is

even plausible.

1. For one thing, the exclusionary text of Section 3

methodically applies in order from the highest

specifically covered office to the lowest office: Section

3 first disqualifies insurrectionist Senators (which

during that era, prior to the Seventeenth Amendment,

were elected by state legislatures) and then

Representatives in the House. Finally, Section 3

disqualifies all federally appointed civil or military

officers who “engage” in “insurrection.”

If the President were intended to be included, he

naturally should be listed first and foremost. This is

precisely how the President was included in the

enumerated list of the early drafts of Section 3, such

as those discussed in Part I.B., supra. Choosing not to

mention the President explicitly is odd enough if the

Framers meant to include him, but to do so in such a

manner that he was buried indiscriminately well down

the list is contrary both to political custom and (as we

will see) to the drafting history of Section 3.

This careful hierarchy itself suggests that the

phrase “or hold any office, civil or military, under the

United States” does not apply to the President or Vice

President, nor does “officer of the United States,” but

they instead apply only to appointed federal officers.

2. This conclusion is buttressed by the

Appointments Clause of Article II, Section 2, which

says the President “shall nominate, and by and with

the advice and consent of the Senate shall appoint

Ambassadors, other public Ministers and Consuls,

Judges of the Supreme Court, and all other Officers of

the United States.” (emphasis added). The President

does not appoint himself, so obviously he cannot be an

“officer of the United States” under the Appointments

Clause.

The same is true of the Commission Clause of

Article II, Section 3, which says that the President

“shall”—i.e., must, “Commission all the Officers of the

United States” (emphasis added). No President has

ever commissioned himself or his Vice President,

either before or after the adoption of the Fourteenth

Amendment. The President, therefore, is obviously not

an “Officer of the United States” for purposes of the

Commission Clause.

Finally, Article II, Section 4 provides that: “The

President, Vice President and all civil Officers of the

United States” shall be liable for impeachment. Note

here that the text does not say, “The President, Vice

President, and all other civil Officers of the United

States.” Once again, Article II does not treat the

President and Vice President as being merely civil

“officers,” and it does not treat their positions as being

merely “offices.” Article II instead treats the offices of

President and Vice President as a category separate

and distinct from “civil Officers of the United States.”

3. This conclusion is buttressed by the fact that, in

1866, the phrase “office *** under the United States”—

the key phrase in Section 3—had long been a term of

art. The language first appeared in the impeachment

clause of Article I, § 3, cl. 7, which says that “Judgment

in Cases of Impeachment shall not extend further than

to removal from Office, and disqualification to hold

and enjoy any Office *** under the United States.”

That phrase was construed during the impeachment

trial of U.S. Senator William Blount in 1799 by

Senator Bayard, one of Blount’s defenders, as follows:

“The Government consists of the President, the

Senate, and the House of Representatives, and they

who constitute the Government cannot be said to be

under it.” Impeachment Trial of Senator William

Blount, 1799, U.S. Senate (Speech of James Asherton

Bayard, Sr., Chair of Mgrs., H. of Reps., at 2248 (Jan.

1799)

(emphasis

added)),

available

http://tinyurl.com/bdh3chwa. The Senate ultimately

expelled Blount on July 8, 1797. Expulsion Case of

William Blount of Tenn. (1797), U.S. Senate,

http://tinyurl.com/3tpm5nvu (last visited Jan. 17,

2024). However, the House also impeached Blount and

the Senate held a trial, which ended in a dismissal for

lack of jurisdiction. Impeachment Trial of Senator

William

Blount,

1799,

U.S.

Senate,

http://tinyurl.com/ye22a6th (last visited Jan. 17,

2024). While the dismissal did not make clear whether

it was because the Senate concluded it lacked

jurisdiction over a former Senator versus whether a

Senator is not subject to impeachment at all, see id.,

“[t]he Senate voted to defeat a resolution that declared

Blount was a ‘civil officer’ and therefore subject to

impeachment,”

Cong.

Rsch.

Serv.,

R46013,

Impeachment and the Constitution 17 (2023),

http://tinyurl.com/ya485877 (citing 8 Annals of Cong.

2317-2318 (1799)).

Members of the Congress that wrote the

Fourteenth Amendment in 1866 were still familiar

with this 1799 speech by Bayard, as it had just

recently been central to the floor remarks of a

prominent constitutional attorney in Congress. Cong.

Globe, 38th Cong., 1st Sess. 329 (1863) (quoting

Bayard) (remarks of Rep. Johnson). Whether or not

Bayard was right that a Senator was not subject to the

Article I Impeachment Clause (and thus could not be

barred from holding the same office again), there is

little doubt that the phrase “officer *** under the

United States” was understood in 1866 not to include

the office of President, since the presidency is one of

the instrumentalities that itself “constitutes” the

United States. And since the phrase “under the United

States” was a legal term of art at the time, it must be

given the same meaning today. See, e.g., Roadway

Exp., Inc. v. Piper, 447 U.S. 752, 759 (1980); Hamling

v. United States, 418 U.S. 87, 118 (1974).

4. The same conclusion follows from standard

canons of textual interpretation. First is expressio

unius est exclusio alterius: expressly including one

item in a group is to exclude others not listed. NLRB

v. SW Gen., Inc., 580 U.S. 288, 302 (2017); see also

Antonin Scalia & Bryan A. Gardner, Reading Law:

The Interpretation of Legal Texts 107 (2012) (referring

to this principle as the negative-inference canon).

Here, Section 3 lists an array of offices, both specific

and in groups, but the list does not specifically

mention the President, suggesting the exclusion is

deliberate.

Second is noscitur a sociis: under which “a word is

known by the company it keeps.” Dubin v. United

States, 599 U.S. 110, 124 (2023). That is particularly

relevant here, “‘where a word is capable of many

meanings in order to avoid the giving of unintended

breadth.’” Ibid. (quoting McDonnell v. United States,

579 U.S. 550, 569 (2016)). Here, assuming the term

“office *** under the United States” can reasonably

bear multiple meanings, the specific enumeration of

offices like Senator counsels against reading the

nearly adjacent phrase “office *** under the United

States” to include the higher but unenumerated office

of President.

Such an interpretation would be all the more

suspect because of the unparalleled role of the

President in the life of the Nation. As this Court has

previously emphasized, “the President’s unique status

under the Constitution distinguishes him from other

executive officials.” Nixon v. Fitzgerald, 457 U.S. 731,

750 (1952). This Court has likewise acknowledged the

“singular importance of the President’s duties.”

Clinton v. Jones, 520 U.S. 681, 694 n.19 (1997). A

structure that would single out a Senator or a

Representative rather than address them together as

“Congress,” but then throw the President

unceremoniously into a residual grab-bag phrase, is

implausible. Both the President and the Vice

President are sui generis and standalone officers in the

American form of government, in some ways (for

present purposes) similar to the King of England and

the Prince of Wales in the British system.

All of this reinforces that the President is not an

“officer under the United States.” And thus it is not

surprising that “no scholars [have] identified a single

example of a ratifier describing Section Three as

including the office of the President.” Lash, supra note

2, at 5.

Prior drafts of Section 3 confirm that

excluding the President was deliberate.

That conclusion is strongly reinforced by Section

3’s drafting history.

1. For example, an early draft of Section 3

expressly listed President and Vice President as

offices that would be off-limits to anyone found to have

engaged in an insurrection:

No person shall be qualified or shall hold the

office of President or vice president of the United

States, Senator or Representative in the

national congress, or any office now held under

appointment from the President of the United

States, and requiring the confirmation of the

Senate, who has been or shall hereafter be

engaged in any armed conspiracy or rebellion

against the government of the United States[.]

Cong. Globe, 39th Cong., 1st Sess. 919 (1866)

(emphasis added).

But the words “President or vice president” were

deliberately edited out of the final version of Section 3.

This, together with the disqualification of presidential

electors and vice-presidential electors who have

engaged in “insurrection or rebellion,” makes clear

that the Framers of Section 3 did not intend for it to

apply to those running for President or Vice President,

even if they engaged in insurrection.

2. Moreover, even the author of the proposed

version that named the President, when he

compromised on language approaching the final

version, admitted that the chief concern should be to

preclude supporters of the Confederacy from “com[ing]

back and assum[ing] their places here again.” Cong.

Globe, 39th Cong., 1st Sess. 2505 (1866) (statement of

Rep. McKee) (emphases added). That of course was a

reference to serving in Congress, not to serving in the

national offices of President or Vice President.

Indeed, former rebels could only realistically hope

to win lower offices, predominantly in the eleven

former Confederate States. The evidence does not

show that any Framers or ratifiers of Section 3 were

concerned that ex-Confederate President Jefferson

Davis, for example, might one day successfully run for

President of the United States on a nationwide ballot.

See Lash, supra note 2, at 46-47 (collecting sources);

see also, e.g., Cong. Globe, 39th Cong., 1st Sess. 2537

(1866) (remarks of Rep. Fernando Beaman). But

election as a Senator or Representative was another

matter, which is why those two offices are specified in

Section 3. Indeed, Jefferson Davis had previously

served in Congress, concluding his service as a Senator

from Mississippi in January 1861, only months before

the beginning of the Civil War. See Jefferson Davis: A

Featured Biography, U.S. Senate, available at

http://tinyurl.com/yxncutuk (last visited Jan. 17,

2024).

This fear was especially understandable regarding

the U.S. House of Representatives, now that the newly

liberated Black Americans were rightly counted as full

persons and not as three-fifths of a person. See U.S.

Const. art. I, § 2, cl. 3. Consequently, the States of the

former Confederacy would inevitably see an increase

in representation in the House. And the concerns that

Confederate leaders could find their way to Capitol

Hill proved justified, as former Confederate Vice

President Alexander Stephens was elected to the

House after the Civil War. See Eric Foner,

Reconstruction: America’s Unfinished Revolution,

1863–1877, at 196 (updated ed. 2014).

Elected lawmakers at the time knew well how

dangerous such legislators could be on the floor of

Congress. Republicans had recently proposed the

Thirteenth Amendment to end slavery, which barely

attained the required two-thirds in Congress, with

most Democrats in the House ardently opposed to it.

See House Vote No. 480, 38th Cong., 2d Sess. (Jan. 31,

1865), http://tinyurl.com/2p86mv96 (showing the vote

tally for passage of S.J. Res. 16, a total of 119 to 56,

with 84 Republicans unanimously in favor, but

Democrats split with 14 in favor and 50 opposed). With

this memory fresh in lawmakers’ minds, and with

many of the leading supporters of the Thirteenth

Amendment such as Representative Thaddeus

Stevens now on the Joint Committee to finalize

language for a proposed Fourteenth Amendment, it

was evident that the Republican majority in Congress

would be intensely motivated to prevent the number

of contrarian voices in Congress from increasing. That

motivation would later rise to the level of a national

imperative after the assassination of Republican

President Abraham Lincoln, leaving Andrew

Johnson—who was both a Southerner (from

Tennessee) and a Democrat—as President.

Moreover, the extensive media coverage of the

various drafts of Section 3 was such that the American

people—and thus the state legislators who were the

ratifiers of the Fourteenth Amendment—were well

informed of the discussion surrounding the evolution

of the Amendment’s text. Lash, supra note 2, at 41.

This would include that some early drafts of Section 3

had mentioned barring covered individuals from

becoming President, but the lawmakers who set the

wording of the final version had abandoned that idea.

See ibid. The ratifiers of the Fourteenth Amendment

in the state legislatures were thus aware that “no

framer had expressed any interest in binding the office

of the President and no framer had described the text

as having done so.” Ibid. Instead, it was a sufficient

check on the presidency that Section 3 barred rebels

from casting certificates as part of the Electoral

College to choose a future President. See id. & nn.180181.

Criticism from the other side of the

debate cannot withstand scrutiny.

The only evidence that the President is an “officer

*** under the United States” is at best

underwhelming.

First, during the Senate floor debate on Section 3,

Senator (and former Attorney General) Reverdy

Johnson questioned why insurrectionist Presidents

are not covered by the Disqualification Clause. Cong.

Globe, 39th Cong., 1st Sess. 2899 (1866). Senator Lot

Morrill responded that the President was included

within the phrase “any office, civil or military, under

the United States.” Ibid. “Perhaps I am wrong,”

replied Senator Johnson, adding, “I was misled by

noticing the specific exclusion in the case of Senators

and Representatives.” Ibid.

This is an embarrassingly thin reed for the

proponents of presidential disqualification, and if

anything, it cuts against those attempting to defend

the Colorado court’s decision. For one thing, Congress

itself voted to strike the words “President or vice

president” from Section 3. It has been decades since

the Supreme Court started ignoring such floor

colloquies, which are often staged for the benefit of the

courts, in favor of the plain meaning of the legislative

text. See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534

U.S. 438, 458 & n.15 (2002); Bath Iron Works Corp. v.

Director, Off. of Workers’ Comp. Programs, 506 U.S.

153, 166 (1993); see also Scalia & Garner, supra, at 56

(supremacy-of-text canon).

For another, Senator Johnson was speaking in a

genteel fashion in a non-adversarial exchange with

Senator Morrill. So for him to say, “perhaps I am

mistaken,” as he notes the “specific exclusion” Section

3 makes of Senator and Representative, would be a

polite way of making the point that the President

would likewise be explicitly mentioned for exclusion if

the President were covered by Section 3 at all. Senator

Johnson’s “perhaps mistaken” comment should not be

taken as supporting Senator Morrill’s thoughts.

The second (and even weaker) argument is that the

presidency is described in Article II as being “an office”

and therefore that the President must be an “officer.”

But many people hold offices under the Constitution

and statutes of the United States without being

considered “officers of” or “under the United States.”

FBI agents for example hold an office and are officials,

see 28 U.S.C. § 533, but they are not “officers of the

United States.” If they were, Congress could put them

in the line of succession to the presidency. U.S. Const.

art. II, § 1, cl. 6. It could also impeach them, and the

Senate could by a two-thirds vote remove them. Id. art.

II, § 4. “Officers” of or “under the United States,” and

individuals who happen to hold an office, are two very

different kettles of fish. The President is in the latter

kettle—albeit with specific responsibilities and

constraints identified in the Constitution—but not the

former.

The third and weakest argument is that it would

be absurd for the Disqualification Clause to disqualify

all federal and state officers who engaged in

insurrection or rebellion but not disqualify an

insurrectionist President or Vice President. But the

history cited above refutes that argument.

As noted earlier, the Framers of Section 3 were

afraid of Democrat President Andrew Johnson

appointing former rebels to federal executive branch

offices, and they were afraid of former rebels being

elected to the U.S. Senate or House of Representatives,

or to being presidential or vice-presidential electors,

and they were afraid of former rebels being elected to

state offices. But there is no evidence they were afraid

of a rebel winning a national presidential election,

especially if insurrectionist presidential electors were

disqualified. Section 3, as finally ratified, dealt

precisely with the Framers’ fear of pockets of rebel

resistance in the South and not with a fear about what

might happen in a nationwide presidential election.

For all these reasons, Section 3 simply does not

apply to U.S. presidential elections.

II. Section 3 Requires Enabling Legislation

Under Section 5, Such as 18 U.S.C. § 2383.

Even if the office of President were covered by

Section 3, another reason the Colorado decision must

be reversed is that Section 3 is not self-executing.

Although several provisions in the Fourteenth

Amendment are self-executing, Section 3 instead

depends upon Congress’ enacting enabling legislation,

as Congress has done with one extant statute. But that

statute has not been applied to President Trump, and

so Section 3 cannot be invoked in the manner it was

by the court below.

Article II’s presidential qualifications

do nothing to suggest that Section 3 is

self-executing.

Some who seek to exclude President Trump from

the 2024 ballot are quick to argue that Section 3 must

be self-executing because other presidential

requirements are. But Section 3’s requirement of

enabling legislation stands in sharp contrast, for

example, to the Presidential Qualifications Clause of

Article II, which requires no enabling legislation. That

Clause requires a person to be thirty-five years old, a

natural born citizen, and a fourteen-year resident of

the United States, to be eligible for the presidency.

U.S. Const. art. II, § 1, cl. 5. Each of those

qualifications is self-executing.

But these qualifications can be readily

distinguished from Clauses in Article II that do

require legislation enacted either by Congress or state

legislatures. E.g., id. § 1, cl. 2 (“Each State shall

appoint, in such Manner as the Legislature thereof

may direct ***”); id. § 1, cl. 4 (“The Congress may

determine the Time of chusing the Electors, and the

Day on which they shall give their Votes[.]”); id. § 1,

cl. 6 (providing that if both the President and Vice

President are unable to serve, “Congress may by law”

determine presidential succession); id. § 2, cl. 2

(empowering the President, courts, or agency heads to

appoint inferior officers as “established by law”).

These provisions show that the Constitution’s

Framers—including the Framers of the Fourteenth

Amendment—knew how to specify when a

constitutional provision is self-executing.

As shown below, a careful study of the text and

history of Section 3, and the structure of the

Fourteenth Amendment as a whole, reveals that

Section 3’s prohibition should be read as dependent on

Congress’ passing enabling legislation, as authorized

by Section 5.

The Fourteenth Amendment contains

both provisions that are self-executing

and those that require Congress to

legislate.

As with Article II, even within the Fourteenth

Amendment, some Sections are likewise selfexecuting, while others are not. For example, the Due

Process Clause is self-executing. See, e.g., Caperton v.

A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009)

(due process requirements for a fair trial). So too is the

Privileges or Immunities Clause. See, e.g., Saenz v.

Roe, 526 U.S. 489, 500-502 (1999) (right to interstate

travel). Likewise, the Equal Protection Clause. See,

e.g., Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 600 U.S. 181, 230-231 (2023)

(SFFA) (right against racial preferences in college

admissions). These oft-invoked rights—all situated in

Section 1—are self-executing against state actors.

But the Framers wrote Section 5 into the

Fourteenth Amendment for a reason. See City of

Boerne v. Flores, 521 U.S. 507, 519 (1997). And even

provisions of the Fourteenth Amendment that are selfexecuting, such as the Section 1 provisions discussed

above, can also be objects of congressional legislation.

Congress’ enacting Title VI to require private

universities to abide by equal protection guarantees as

a condition for eligibility to receive federal funding is

one ready example. See SFFA, 600 U.S. at 230-231.

Congress’ 1972 amendments to Title VII, making it

applicable to state employers by abrogating sovereign

immunity, is another. See Fitzpatrick v. Bitzer, 427

U.S. 445, 456 (1976).

One provision of the Fourteenth Amendment that

unquestionably

requires

enabling

legislation,

however, is Section 3. Even the text of Section 3 proves

that at least part of that Section requires

congressional action, as it concludes by stating that,

for anyone disqualified under it, “Congress may by a

vote of two-thirds of each House, remove such

disability.”

Section 3’s history reveals

requires enabling legislation.

that

The history of Section 3 further confirms that it is

not self-executing. Indeed, given the potential effects

of a disqualification under Section 3, proponents of

Section 3’s self-executing character must bear the

burden of showing that was the understanding of

those who wrote and ratified the Fourteenth

Amendment. But they cannot do so.

1. Representative John Bingham of Ohio was the

principal draftsman of Section 1 of the Fourteenth

Amendment, Akhil Reed Amar, The Bill of Rights and

the Fourteenth Amendment, 101 Yale L.J. 1193, 1233

(1992), and a prominent constitutional lawyer in

Congress at that time, see Kenneth A. Klukowski,

Citizen Gun Rights: Incorporating the Second

Amendment Through the Privileges or Immunities

Clause, 39 N.M. L. Rev. 195, 217 (2009). And Bingham

expressly raised a concern that Section 3 would be

unenforceable without additional action by Congress.

Lash, supra note 2, at 27. In response to Bingham’s

concern,

one

leading

House

Republican,

Representative Thaddeus Stevens of Pennsylvania,

agreed that there was a need for Congress to pass

implementing legislation because Section 3 “will not

execute itself.” Cong. Globe, 39th Cong., 1st Sess. 2544

(1866). On the Senate side, Judiciary Committee

Chairman Lyman Trumball concurred, publicly

explaining that it “provides no means for enforcing

itself.” Lash, supra note 2, at 7 & n.29 (quoting

remarks of Sen. Trumbull as reported in The Crisis at

2 (Columbus, Ohio), May 5, 1869)).

The congressional record, moreover, does not show

any Member of the House or Senate disagreeing with

Stevens’ acknowledgement that Section 3 is not selfexecuting. Lash, supra note 2, at 27. And, although

proponents of self-execution claim that this selfexecuting feature results from the words “No person

shall be” in the Amendment itself, the version Stevens

admitted was not self-executing contained similar

language, i.e., “all persons *** shall be excluded.” Id.

at 28 (quoting multiple versions). The former is the

functional equivalent of the latter, and thus neither

denotes a self-executing character.

Nor was this an isolated remark subject to

misinterpretation. Representative Stevens repeatedly

acknowledged that Congress “must legislate to carry

out many parts of” the Fourteenth Amendment, Cong.

Globe, 39th Cong., 1st Sess. 2544 (1866), which is

consistent with the idea that some provisions in the

Amendment are self-executing, while others are not.

Neither was this assessment some sort of

gamesmanship

during

the

hurly-burly

congressional debate: Subsequent to Congress’

proposing

the

Fourteenth

Amendment,

Representative Stevens reiterated the need for

legislation to implement Section 3. 2 Kurt Lash,

Reconstruction Amendments: Essential Documents

219 (2021).

2. This was also the assessment of the most

significant judicial examination of the issue. Chief

Justice Salmon Chase decided a case opining on the

Fourteenth Amendment only one year after its

ratification. In it, he brushed aside the idea of Section

3’s being self-executing, reasoning that disqualifying a

person from office by virtue of some random official

issuing “a simple declaration” to that effect was

“obviously impossible.” Griffin’s Case, 11 F. Cas. 22, 26

(C.C.D. Va. 1869). The Chief Justice did not consider

it a close call.

To the contrary, in Griffin’s Case, Chief Justice

Chase held it was “indispensable” to implement

Section 3 to have “proceedings, evidence, decisions,

and enforcements of decisions” that are “more or less

formal.” Ibid. However, the Chief Justice added that

“these can only be provided for by congress,” ibid.,

undeniably concluding that Section 3 required

enabling legislation pursuant to Section 5.

D. Congress enacted relevant legislation in

18 U.S.C. § 2383, but President Trump is

not accused of violating that statute.

Indeed, Congress exercised its Section 5 authority

when it passed enabling legislation for Section 3—in

the Enforcement Act of 1870, ch. 114, 16 Stat. 140,

140-146. Congress then repealed part of that

legislation twenty-four years later, as the concern of

Confederate sympathizers from the Civil War

injecting their agenda into congressional debates

receded. See Act of Feb. 8, 1894, ch. 25, § 1, 28 Stat.

36, 36.

However, a version of one provision of the

Enforcement Act of 1870 still exists today, codified in

Section 2383 of Title 18. It is the federal criminal

statute that defines and punishes insurrection. It

reads:

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, shall be

fined under this title or imprisoned not more

than ten years, or both; and shall be incapable

of holding any office under the United States.

18 U.S.C. § 2383.

This statute looks exactly like what one would

expect for legislation implementing Section 3. It

defines the elements of the pertinent crimes, sets forth

the range of punishments, and commands that any

person convicted under it be disqualified from holding

an office “under the United States.”

The big problem for those advocating for the

Colorado decision is that President Trump has not

been convicted of violating Section 2383. For that

matter, he has never even been charged with violating

Section 2383, although he has been indicted on a

number of charges. One would think, given how often

politicians and media pundits have bandied about the

word “insurrection” over the past three years, that if

the former President’s adversaries believed they had

sufficient evidence to convict him of that crime, they

would have brought a prosecution under it. But he has

not even been accused of insurrection under the only

statute on point, much less convicted under it.

If he had been indicted for violating Section 2383,

President Trump would also have had the benefit of

the presumption of innocence, see In re Winship, 397

U.S. 358, 363 (1970); where the government must

prove its case beyond a reasonable doubt, id. at 364;

the right against double jeopardy (as opposed to facing

repeated tribunals of various sorts), Benton v.

Maryland, 395 U.S. 784, 794 (1969); the right against

self-incrimination, Malloy v. Hogan, 378 U.S. 1, 6

(1964); the right to a jury trial (instead of trial by

media or by opposition-party politicians), Baldwin v.

New York, 399 U.S. 66, 69 (1970); by an impartial

tribunal (as opposed to partisan), Duncan v.

Louisiana, 391 U.S. 145, 149 (1968); the right to a

speedy trial (as opposed to occurring when an election

is imminent, or even underway), Klopfer v. North

Carolina, 386 U.S. 213, 221 (1967); the right to

confront his accusers (as opposed to facing one-sided

attacks with no meaningful opportunity to respond),

Coy v. Iowa, 487 U.S. 1012, 1019-1020 (1988); and the

right to challenge evidence (as opposed to having

opponents cherry-pick “evidence” against the accused),

id. at 1021. A defendant in a criminal proceeding

would enjoy all these constitutional protections

throughout the ordeal. And any person accused and

found guilty of such a disqualification from office

under 18 U.S.C. § 2383 would also then have the

opportunity to appeal.

It is also plausible for Congress to establish a

system for adjudicating Section 3 violations as a civil

matter, rather than criminal. Perhaps the burden of

proof would be a preponderance of the evidence, or

clear and convincing evidence, instead of evidence

beyond a reasonable doubt. And perhaps it would be

decided by a majority of a jury, instead of a unanimous

jury. There are other criminal procedural protections

that might apply to a lesser degree, or not at all, in

such a civil proceeding. But all those particulars would

have to be worked out by Congress, and signed into

law.

Either as a criminal prosecution or a civil matter,

any would-be public official—including President

Trump—would also be able to petition this Court to

determine whether they are truly disqualified under

Section 3 from holding a particular office. The voters

would then be able to rely upon that final

determination as they cast their votes.

That sort of orderly constitutional approach,

governed by due process, would fully comport with

Section 3 of the Fourteenth Amendment. But that is

obviously not what happened here. And that is yet

another reason why President Trump cannot be found

disqualified under Section 3.

III. It Would Be Highly Imprudent to Interpret

Section 3 in Any Way that Empowers

Partisan Officials to Unilaterally Disqualify

Political Opponents from Public Office.

Whatever one thinks of President Trump’s

behavior on January 6, 2021, the stakes in this case

are much larger than any one candidate or election.

The overriding question is whether the Court will

interpret Section 3 in a way that would henceforth

empower partisan officials to unilaterally disqualify

their political opponents from the ballot, especially the

presidential ballot. For at least three reasons, such an

interpretation would be ruinous for the Nation’s

tradition of free and fair elections.

First, without at least a definitive governing

statute, it is a game that can easily be played by both

sides, with virtually no substantive limits. Consider,

for example, if with respect to the current presidential

campaign the shoe were on the other foot—say, in

Georgia. Georgia proved to be a swing State both in

2016, when President Trump was certified as the

winner, and in 2020, when President Joe Biden was

certified as the winner. Imagine if the Georgia

Secretary of State were to unilaterally declare that

President Biden’s attempts to transfer countless

billions of dollars of student loan debt from borrowers

to other taxpayers, despite this Court’s rejection of

that policy, Biden v. Nebraska, 143 S. Ct. 2355 (2023),

was an “insurrection or rebellion” against the United

States. Or perhaps the Georgia Secretary might

conclude that President Biden’s refusal to commit

sufficient resources to the border with specific

instructions that would seal the border against aliens

entering without authorization, see United States v.

Texas, 599 U.S. 670 (2023), was facilitating a foreign

invasion, and is thus a form of insurrection, and on

that basis disqualified Biden from the ballot in

Georgia. Again, without a clear statutory definition,

the types of presidential actions that might be deemed

an “insurrection” are virtually limitless.

This is by no means hyperbole or scaremongering.

The Missouri Secretary of State has floated the same

idea. See Jane C. Timm & Amanda Terkel, Republican

Secretary of State Threatens to Kick Biden Off Ballot

as Trump Payback, NBC News (Jan. 5, 2024),

http://tinyurl.com/rfd6jcht. And he is not alone. See,

e.g., Elizabeth Zavala, Lt. Gov. Dan Patrick Threatens

to Remove President Biden from the Texas Ballot,

Houston

Chron.

(Dec.

26,

2023),

http://tinyurl.com/58j86yrc. One large swing State’s

taking such a move at the right moment might change

the outcome of a presidential election, if the path

followed in Colorado were implemented elsewhere.

Second, it’s a game that could easily be played

strategically, by both sides, in a manner that would

bring even more chaos to future presidential elections.

For example, suppose the Georgia Secretary, having

declared President Biden an insurrectionist, declares

him disqualified under Section 3 from being on the

ballot in Georgia, and makes this pronouncement one

day before the certification deadline for candidates to

be certified for the ballot just before ballot printing

begins. One of President Trump’s political opponents,

Maine’s Secretary of State, has taken just such

unilateral action—and could easily have done so on

the eve of the Maine primary. See Ruling of the

Secretary of State, In re: Challenges of Kimberley

Rosen, et al. to Primary Nomination Petition of Donald

J. Trump, Republican Candidate for President of the

United States, 2023 WL 9109758 (Dec. 28, 2023).

Such determined, strategic action could easily

make it impossible for this Court or any other federal

authority to effectively police the disqualification

process—leading to further chaos in presidential

elections.

Third, this is a game that could easily be played,

not just by 51 Secretaries of State, but potentially by

hundreds of state officials. Depending on state law, for

example, the Secretary of State might have one

interpretation, but the Attorney General might have

another. County election officials might have a third

interpretation, or even dozens more. Or a judge in any

given county court might develop his own

determination—as the Colorado trial judge did

below—which would then need to be appealed through

that State’s judiciary in a race against the clock to the

ballot certification deadline in that State.

In short, allowing individual state officials to

disqualify a presidential candidate based on the

official’s own view of what constitutes an

“insurrection,” and whether a particular candidate has

“engaged” in such an insurrection, is a recipe for chaos,

with national implications that could be nothing short

of ruinous. And that is a powerful practical reason to

take seriously the possibility, either that Section 3

does not apply to presidential elections at all, or that

it can be implemented only by a statute passed by

Congress.

CONCLUSION

At least without an implementing statute passed

by the people’s representatives in Congress, Section 3

of the Fourteenth Amendment does not disqualify any

American from running for the office of President of

the United States. The judgment of the Supreme

Court of Colorado must accordingly be reversed.

Respectfully submitted,