Everything you need to know to understand the Supreme Court's decision in Anderson v. Trump

Explaining the legal complexities of Section 3

When determining what is actually meant by an uncertain law, there are always two key components to explore: intent and the words on the page. For the sake of understanding the intent of Section 3, we'll provide a little information about how it developed. Then, we'll look at the text as written.

Intent

Constitutional law professor Ilan Wurman describes originalism as the belief that the Constitution (and other legal texts) should be understood as it would have been in the time. He cites a quote from James Madison in his explanation of the concept, which will be particularly relevant to this case:

"How many important errors may be produced by mere innovations in the use of words and phrases, if not controlled by a recurrence to the original and authentic meaning attached to them!"

- James Madison, 1826

When the Fourteenth Amendment was first written, Section 3 was intended as a way to make sure former Confederates couldn't return to office. While the states themselves had a pathway to forgiveness, the individuals who founded the Confederacy had no place in the US government.

This section was originally proposed as its own bill, and it's helpful to look at the wording of those who pitched it. Charles Sumner suggested limiting federal and state officers to those "of constant and undoubted loyalty." This would have been excessively vague wording. In contrast, John Broomall grounded his wording much more concretely, focusing on "the active and willing participants in the late usurpation."

This was brought up by Trump's lawyers in their case, because they argue that the final wording was a compromise intended to sit in between completely banning all insurrectionists from all future offices and only banning very specific Confederates.

The justices also argued on intent, repeatedly asking Mitchell about the historical context surrounding Section 3. Justice Jackson, in particular, mentioned that the historical background seems to indicate that the Presidency was excluded from the language because it wasn't what the writers were worried about, regarding the Confederates.

However, Mitchell claimed that his team wanted to focus on the text, rather than the intent, because there was more opportunity for their opposition to undermine the arguments if they relied on historical context. After all, there clearly were those who wanted to keep Confederates from all offices in the Reconstruction period, but those views were not in the final product.

Murray, on the other hand, used historical context to help explain why there aren't more specific phrasings and precedents. The justices requested examples of Section 3 being used for federal offices, but there are no records of similar cases.

However, Murray argued that the ballot system is done differently now, so the original writers wouldn't have been able to phrase it more specifically. There wouldn't be contemporary cases about inclusion on ballots, because the system didn't exist. However, the advancement of election processes doesn't mean that the original writers and ratifiers of the amendment would have wanted potentially disqualified candidates on the ballots.

Given that five of the nine Justices have self-identified as "originalists," the historical context of what the drafters of the Fourteenth Amendment wrote is bound to be vital to how this case is determined. It will be most prominent in the discussion of who or what has the authority to enforce Section 3.

Textual Evidence

Given the complexity of understanding contemporary intent, the justices will also have to consider how the text, as written, should be interpreted. This is most significant in the determination of whether Donald Trump should be understood as an "officer of the United States" and/or the Presidency as an "office."

For the sake of clarity, the whole of Section 3 has been included here:

"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."

- 14th Amendment, Section 3

When examining this case, there are two very important sections of this text that are under debate.

According to Mitchell, Donald Trump is in the unique position of not actually being an officer of the United States. Per his reading, Section 3 lists multiple positions that a person might have held prior to engaging in insurrection, but the Presidency is not one of them. Although nearly every former President has previously held one of the listed positions, Donald Trump is a notable exception.

Murray argues that the President's oath, which includes the promise to "preserve, protect and defend the Constitution of the United States," should be understood as being effectively the same as an oath "to support the Constitution of the United States."

On a similar, but not precisely the same, point, Mitchell argues that the Office of the President is not a position that a person could be disqualified from using Section 3. After all, the text only mentions that an insurrectionist could not become "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."

However, Murray argues that the Presidency should be considered an "office" under the United States, as it is referred to as such in multiple other sections of the Constitution.

The primary textual question, then, is whether the writers of Section 3 intentionally didn't include the Presidency as an office/officer, or whether it is something that could be reasonably deduced from the words that are there.

Slide 4 provides information on the Constitution and precedents that are important to the case.