Sunday, Feb. 11, 2024 | 2 a.m.
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Last week’s historic arguments about former President Donald Trump before the Supreme Court were striking because although the questions and concerns raised by the justices are undoubtedly urgent, the issues that garnered the greatest attention fail to address the fundamental issues of the preservation of our democracy.
By focusing on the real issues before the court and clearly defining the language and purpose of the 14th Amendment, the justices can strengthen our democracy, resolve many of their concerns, create accountability for those who seek to undermine the rule of law and provide guidance for lawmakers and lower courts moving forward.
While much of the conversations surrounding the case have focused on whether Trump will appear on Colorado’s ballot, the legal question before the court rests on his eligibility to hold public office and the court’s interpretation of the insurrection clause found in Section 3 of the 14th Amendment to the U.S. Constitution.
Throughout the arguments, the justices and attorneys narrowly focused on the specifics of who might appear on a state’s ballot and fretted over the possibility that Trump or President Joe Biden could be removed from ballots by state officials for partisan political reasons.
Barring candidates from holding office simply for political reasons would effectively end democracy. These were valid concerns, but only if the context is entirely framed by the justices’ questions in oral arguments. All of their concerns can be resolved and the nation put on a constructive path forward if this Supreme Court would rise to the challenge and do the hard work of defining what constitutes an insurrection.
The insurrection clause prohibits people from holding public office who have sworn an oath to uphold the Constitution and then violated that oath by engaging in an insurrection or rebellion against the government.
As the leading candidate to receive the Republican Party’s nomination for the presidency, ascertaining Trump’s eligibility to hold public office is undoubtedly important. However, the court’s ruling has implications that go far beyond Trump or his appearance on Colorado’s ballot.
Trump was but one of numerous local, state and federal elected officials who attempted to coerce election officials into falsifying results by “finding votes” for Trump, engaged in baseless claims of fraud and conspiracy, encouraged state legislatures to override the will of voters, created false slates of electors and more in an attempt to overturn the results of a free and fair election. Their efforts culminated in the violent attack on the U.S. Capitol on Jan. 6, 2021, that was intended to both intimidate Vice President Mike Pence to shirk his constitutional duties and/or prevent Congress from tallying the electors to buy time for alternative schemes.
The tragic events of Jan. 6 were not a one-off attempt at an insurrection: They were part of a larger conspiracy to commit insurrection by subverting the election and the Constitution. Not all insurrections require guns. Threats and intimidation to force others to abandon their oaths can also be a form of insurrection.
The deadly violence unleashed by Trump and his supporters is one form of domestic unrest that the insurrection clause was designed to address, but it is certainly not the only possible example contemplated by the 14th Amendment. The clause’s central concern is preventing people who would plot to undermine our constitutional democracy from holding office and perverting America from within. As such, the Supreme Court should prioritize the broader task of defining what constitutes an “insurrection” moving forward.
By establishing clear and comprehensive legal standards, the court can provide guidance to those who are still working to create accountability for the plot to undermine the election or are concerned about future attempts to undermine democratic processes and overthrow the U.S. government. It can also help deter future acts of insurrectionist behavior by setting a clear standard of what actions will be met with swift and decisive legal action. Simultaneously, the court can address its own concerns of the potential for rampant accusations of insurrection by creating fully articulated standards and guidelines against which prosecutors and judges can measure the facts of a case. That by itself would safeguard against the concerns justices raised last week about political operators removing opponents from ballots willy-nilly.
The 14th Amendment was passed in the immediate aftermath of the U.S. Civil War and was focused on preserving the rights and liberties of the approximately 4 million newly minted citizens of the United States who were freed from the bonds of slavery.
Given this context, it is important that any definition of insurrection should not be limited exclusively to armed or violent actions but should encompass a broader range of deliberate behaviors aimed at undermining the rights and liberties guaranteed by the Constitution, the government created by it and the democratic institutions that uphold it. The authors of the insurrection clause clearly contemplated nonviolent action, as the text states that merely providing “aid or comfort” to those engaged in insurrection or rebellion is an offense worthy of disqualification from public office.
However, the Supreme Court must also consider the need to balance the intended purposes of Section 3 of the 14th Amendment against the First Amendment rights of Americans. While insurrectionist activities pose a threat to democracy, so too would a definition of insurrection that unduly infringes upon the rights of Americans to peacefully assemble, express dissenting opinions or advocate for political change.
A thoughtful definition can address all of these concerns and create a standard for the court to apply if partisan actors attempted to improperly remove candidates from ballots. It could also successfully encompass at least some of the activities used by the Trump plotters to prevent the seating of a duly elected president, such as the knowingly false objections levied by members of Congress to prevent the certification of the Electoral College results and the fake elector scandal perpetrated by leaders of the Nevada GOP.
As further safeguard against the possibility for abuse, the justices were concerned about this: If the court’s definition is overreaching or is being applied unfairly, the 14th Amendment provides that Congress may, by a two-thirds vote of both chambers, declare a person eligible for public office even after they have been found to have engaged in an insurrection. This safeguard addresses the concerns expressed by Associate Justice Ketanji Brown Jackson that public officials might be unfairly painted as insurrectionists simply for challenging the status quo or the actions of the government.
Brown Jackson’s concerns underscore the need to define the term and protect the public from unjust accusations and internal threats alike. We have seen what happened after the 2020 election, when, for the first time since the insurrection clause was written, a sitting president, members of his administration and members of his party conspired to overthrow constitutional order. Having seen this, the Supreme Court has a moral obligation to define insurrection fully and prevent future administrations from making similar attempts.
We call upon the Supreme Court to take advantage of the opportunity provided by the current case regarding Trump’s eligibility for public office and provide a clear and comprehensive definition of “insurrection.”
