“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

Fourteenth Amendment, Section 3:

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.

January 2024



An Amicus Pleading

Holmes wrote: “Great cases like hard cases make bad law.” The 14th Amendment Trump qualifications case making its way to you is certainly one of those.

You should deny certiorari.

If the Court takes the case you will probably find a way to decide it narrowly and avoid the main question of whether the states can or should or did act properly in denying former president Trump a place on the forthcoming primary or possibly the 2024 general election ballots because he engaged in or gave comfort to an insurrection against the United States. This is as hot as a potato gets, way more politically charged than the Pentagon papers, the Japanese internment case, the Nixon tapes, or Sacco and Vanzetti.

In Colorado a five-day trial was held. Trump as well as the plaintiffs were afforded the opportunity to introduce evidence, draft and submit their preferred findings of fact, and argue the law. The voluminous report of the Congressional Select Committee on the January 6 Attack was also admitted and relied upon. A factual judgment rendered after all this cannot be challenged unless it is clearly against the weight of the evidence, which no one could seriously argue here. He did it.

The main point that has and will be argued is the legal meaning of “insurrection.” There might also be an attempt to follow the trial judge, Sarah Wallace, down the rabbit hole in deciding whether Trump had been an officer of the United States. That one is just silly.

The insurrection definition needs more history to grasp. It has never been dealt with at this level because no armed mob in any other case has ever sought to disrupt the Electoral College vote with the encouragement and possibly with the planning of the president (“it will be wild,” “fight like hell,” and so on). Those facts are by now known and understood. Blood was shed.

The 14th Amendment was ratified in 1868, three years after the Civil War, and was designed to keep men like Jefferson Davis, the president of the Confederate States of America, from federal office. Reconstruction began as an effort to rehabilitate the South, General Grant allowing the defeated soldiers to return home with their horses and sidearms, but the healing was not to go as far as restoring the rebels to political power. Section 3 of the Amendment does not require Congressional action to hold sway, indeed it mentions the Congress only in affording the ability to relieve the disqualification upon a vote of two thirds of both houses. The 13th Amendment, abolishing slavery, gave Congress the power to enforce it, but not sole or exclusive power.

Your unenviable job is to deal with this unfolding tragedy. Should you take the case and affirm the Colorado decision there will be howls from the right. Some are already saying that matters like the election of a president should be left to the voters. Well of course it should, but within the lines established by the Constitution. If the Constitution does not govern, of what use is it? It would be one thing if that wise old document was silent, but in this case it speaks plainly.

If you take the case and reverse either on the basis that the Colorado District Court was clearly wrong on the facts or that the 14th Amendment does not mean what it obviously says, respect for the Constitution and your role in interpreting it will decline. Those of us who believe in the American system worry about what would come next. Were Trump to be elected you could expect more litigation. Could a person “engaged in insurrection” who had subsequently been elected to federal office continue to hold that position? Would mass deportation of asylum seekers or even the dreamers be constitutional? Would politicization of the federal civil service be lawful? Would it be more than ironic for an insurrectionist to invoke the Insurrection Act against his enemies? There’s much, much more to come.

Should you decline certiorari there will be an odd election. Trump will be on some ballots but not all. He will scream “election interference.” For him the Constitution is no big deal. One cannot predict the electoral outcome, and Trump might be elected anyway. But the nation will have the opportunity to consider all this and act.

For many years the Court did not touch desegregation. Fifty-eight years passed between Plessy and Brown v. Board of Education, and during that time the country came to accept, albeit incompletely, racial equality. The abortion issue was similarly avoided many times before the Court took on the question of reproductive rights, and then took fifty years to reverse itself.

Let this matter be decided, at least for now, on the basis of state election laws which is how the Colorado case came down.

Sacco and Vanzetti were convicted of murdering security guards, but since they were vocal immigrant anarchists in a time of xenophobia, many thousands of people were in the streets protesting one side or another of their charges and treatment. They were convicted and exhausted legal remedies, supported by many famous lawyers including the then-dean of the Harvard Law School, Felix Frankfurter. As a last gasp, they petitioned Justice Holmes for a stay of execution. Holmes denied it, and wrote:

I have received many letters from people who seem to suppose that I have a general discretion to see that justice is done. They are written with the confidence that sometimes goes with ignorance of the law. Of course, as I have said, I have no such power. The relation of the United States and the Courts of the United States to the States and the Courts of the States is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years and can not be disposed of by a summary statement that justice requires me to cut red tape and to intervene. Far stronger cases than this have arisen with regard to the blacks when the Supreme Court has denied its power.

This case is inherently political but not necessarily partisan. You could, and should, hold your breath, deny jurisdiction, and let it percolate. By unanimous, unsigned Per Curiam order, please.