The Volokh Conspiracy
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The Objection That Enforcing Section Three Would Be Too "Dangerous"
[Note: This is the third in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first two essays can be found here and here.]
Of all the objections that have been offered to our interpretation of Section Three, one stands out as far and away the most craven and insidious. It is the argument that, regardless of what the Constitution says and how it is correctly understood, we should not enforce Section Three's exclusion of insurrectionists from future office because doing so might provoke substantial political resistance and even violence by their supporters. To comply with the Constitution in this respect, therefore (it is said), is simply too dangerous. In short, it might tend to produce further, greater acts of insurrectionary violence or rebellion directed against our constitutional order. We should decline to enforce the Constitution's exclusion of insurrectionists from office because that might only make matters worse. Or as Professor Daniel Epps put it in jest: "The Supreme Court shouldn't rule that Trump is ineligible for the presidency for engaging in insurrection, because if they do Trump will definitely stage an insurrection."
Accordingly, it is said, we should not enforce Section Three in accordance with the original meaning of its terms, fairly understood. If the faithful, straightforward interpretation and application of Section Three would risk these consequences, we should not interpret and apply the Constitution faithfully. We should seek ways to avoid carrying out the Constitution's rules on this matter. We should compromise constitutional principle to accommodate the believed practical imperatives of the current political situation. We should appease those who would threaten or engage in political violence, rather than enforce the language of the Constitution.
To state this position plainly, in unvarnished terms, is, we submit, to expose its utter lack of integrity and legal propriety. This is not a legal argument about Section Three, of course. It is not an argument about the meaning of the Constitution's text, structure, history, logic, design, or purposes; nor is it an argument from constitutional precedent or practice. It is, rather an argument from expediency, or cowardice, that a particular provision of the Constitution should be disregarded or dispensed with, out of fear of its consequences or in order to appease those who would hold the Constitution hostage to threats of resistance. It should go without saying that such an argument ought to play no role whatever in legal interpretation of the Constitution, by those who have sworn to uphold it.
We did not take this objection very seriously in our forthcoming article, The Sweep and Force of Section Three, for two reasons. First, we simply did not expect it to be a serious argument. We did not expect that many people would seriously deny that the Constitution should be enforced in accordance with the fair understanding of its terms, taken in their original sense and context, not because of disagreement with such an interpretive approach, but instead out of fear of the consequences of complying with the Constitution.
Second, our article was devoted to legal analysis -- an effort to ascertain the original, objective public meaning of a provision of the Constitution, as part of our must fundamental law. We were not concerned with frankly political evaluations of the hypothesized "danger" of applying the Constitution faithfully. We simply sought to arrive at a correct understanding of Section Three as a matter of constitutional interpretation. Had we anticipated the reaction, it still would have been beyond the scope of our project.
Nonetheless, the this-would-be-too-dangerous argument has been among the most persistent and prominent objections made to the thesis of our article. It has been propounded, in various forms, by a conservative writer for The New York Times, by the editorial board of a prominent, conservative-leaning national newspaper, by a celebrated and venerable nationally-syndicated conservative columnist, and by others. The common message is that we should not apply Section Three's original meaning, if doing so would disqualify Donald Trump from eligibility for the Presidency, because it would be "dangerous" to do so. It would (it has been said) "embitter" Trump supporters, who would react with "rage" to a "rigged" system and produce widespread "chaos."
And so, we think the objection needs to be confronted directly:
First, there is a real concern that such rhetoric could become a self-fulfilling prophecy. Some of the public formulations of this objection border on suggesting that extreme reactions might in some sense be justified, or at least understandable, responses to what the writer sees as a great legal provocation. Other writers merely raise a concern that taking Section Three seriously might produce an uncomfortable disruption of usual political processes. Instead of raising and possibly stoking fears of violence, it would be far better, we submit, for these opinion writers to champion the Constitution and the rule of law – to urge their readers to take the Constitution seriously in all of its operative provisions, including Section Three, and to encourage a civic ethos that embraces the controlling authority of the U.S. Constitution as "supreme Law of the Land."
Second, beyond the problem that the dangerousness objection, if repeatedly pressed, might tend to produce its own feared consequences, there is the more basic problem of principle: It is simply wrong to interpret and apply the Constitution incorrectly out of low-political or social-policy or concern-for-social-consequences-and-disruption motives. We've seen this movie before, several times. The Supreme Court's unanimous landmark decision in Brown v. Board of Education in 1954 embraced the Fourteenth Amendment's fundamental guarantee of equality to repudiate racial segregation in public education, and to disapprove of the pernicious doctrine of "separate but equal," notwithstanding that large segments of American society would – and did –resist its holding. In Brown II, the following year, the Court emphasized that, in fashioning judicial remedies to implement the Fourteenth Amendment's mandates, "it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Disagreement (and "massive resistance") there indeed was. But the Supreme Court refused to back down from constitutional principle and, in Cooper v. Aaron in 1958 unanimously reaffirmed the principles of Brown even in the face of public resistance and violence.
Should the Court in Brown have ruled differently – ruled more narrowly, compromised on constitutional principle, avoided deciding the case entirely, or even reaffirmed Plessy (and segregation) on the basis of longstanding precedent and practice – and done so because of concern about how a decision on constitutional principle would be received? Should the Court in Brown deliberately have interpreted the Constitution in a way it thought wrong, on proper interpretive principles, out of fear that committed, hard-core segregationists would be up in arms over a decision embracing the right constitutional answer? The very idea is, by now, almost unthinkable. Such a course would have been shockingly unprincipled – outrageous and reprehensible – then, and now.
And of course we have seen that movie before with a different ending. In the first decade or so after the Fourteenth Amendment was enacted, many republicans in political office were willing to enforce its terms, even when this required aggressive enforcement against massive, even violent, resistance. This was Reconstruction. But by 1876 or so, the political winds had shifted and the will to enforce the Constitution had weakened. People in positions of power and privilege now thought it "dangerous" to insist on enforcing the Constitution too much. And so they stopped insisting, and succumbed to the rise of Jim Crow. As John Harrison has summarized it, "what happened in the 1870s is that the white southerners and the national republicans stared each other in the eye and more or less . . . the national republicans blinked." Was that really the historically preferable policy?
As with Brown, Reconstruction, and interpretation of Section One of the Fourteenth Amendment, so too with Section Three of the Fourteenth Amendment: It should go without saying that the vitality of correct constitutional principles should not be allowed to yield simply because of disagreement, resistance, threats, or even violence.
Faithful constitutional interpretation is of course a special responsibility of judges. As constitutional scholar and political scientist Matthew Franck recently put it, "where the requirements of the Constitution and the rule of law are concerned . . . questions like 'what will voters do if we do X?' are the wrong ones to ask. Certainly such matters cannot matter to judges. … 'What bad things will other people do if I do the right thing?' is a question any judge should be ashamed even to ask himself."
Franck commended the justices for exercising great integrity in putting politics and popularity aside when they overruled Roe v. Wade two years ago in their headline decision in Dobbs v, Jackson Women's Health Organization. "To their credit," the majority focused on reaching what it thought was the constitutionally correct legal answer in the case, and not at all on public reaction. Indeed, the Court in its Dobbs opinion itself emphasized the entire irrelevance to its legal analysis of such things, stating that "we cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work." The courts are expected to exercise similar integrity in every hard case.
But faithful constitutional interpretation is not limited to judges alone. It is the duty and responsibility of all officials who swear an oath to support the Constitution. And while ordinary citizens do not typically swear an oath to support the Constitution, all Americans who subscribe to and admire the U.S. Constitution as "supreme Law of the Land" should put that fundamental law ahead of their policy preferences, ahead of their politics, and above their fears about real or imagined dangers. No one should acquiesce in the notion that the Constitution should be subordinated to political "reality" or held hostage to blackmail threats of political violence or unrest.
Indeed, it would be truly dangerous not to enforce this constitutional provision. Section Three protects our constitutional republic against a grave threat from within: men and women who, once having sworn an oath of office to support the Constitution, subsequently demonstrate their infidelity to our constitutional republic by engaging in acts of insurrection or rebellion should not be entrusted with power a second time (unless and until two thirds of Congress makes a political judgment to excuse or forgive). Not to enforce this provision of the Constitution is to place lawful constitutional government at grave risk. And not to enforce this provision of the Constitution because enforcing it will be difficult, disruptive or dangerous – because of the fear of future insurrection – is arguably the most dangerous course of all.
* * *
We end with a relatively small point about a rather different, more minor, type of dangerousness argument: the argument from misuse. That objection has it that Section Three, if interpreted too broadly, could be misused or abused by political partisans who apply it, as a tool to advance partisan political agendas. In some ways, we find this argument weak and generic. Many governmental powers, some of which may involve interpretation and application of the Constitution (or other law), are vested in many different types of elected officials. Many types of government powers could be abused, or misdirected for partisan ends. This does not in any way refute the existence of such authority. As we noted in our original article, the potential abuse of a constitutional power or right is not an argument against its existence. It is an argument against its abuse or misuse – an argument for checks and balances, judicial review among them. And indeed, in the case of Section Three specifically, we note that there have been extensive judicial proceedings about the application of that provision to former president Donald Trump. Indeed, in Trump v. Anderson, the Colorado Supreme Court case now pending on writ of certiorari before the U.S. Supreme Court, there was a full, five-day trial of the facts that formed the basis for application of Section Three.
The possibility of cases pushing Section Three too far is always present. But that is not an argument for not enforcing Section Three at all. It is an argument for careful and faithful interpretation of Section Three's terms, and for careful application of its rules to the actual facts of a given situation. As we wrote in our article and will return to a future post, the facts matter. If the facts, as found by a trier of fact in a court of law, warrant the legal conclusion that an individual is disqualified from office under the terms of Section Three, that conclusion should be given legal effect. The fact that other situations, involving different facts and different individual conduct, might not warrant the same ultimate conclusion, is unsurprising and untroubling.
The fact that different factual and legal situations may yield different legal conclusions in different cases is an ordinary feature of the rule of law. It is not a persuasive argument for failing to give Section Three its proper, original meaning and applying it as part of our nation's fundamental law. It is a reason to try to define Section Three's terms objectively as a matter of the original meaning of the Constitution, without being pushed or pulled by today's politics, so that they can be consistently understood and applied over time. That is what we have tried to do in The Sweep and Force of Section Three.
