More on the Insurrection Clause Case


More on the Insurrection Clause Case

If Congress really believed that the Insurrection Clause required implementing legislation when the 14th Amendment was passed, why didn't they pass such legislation at the time, in the period after the Civil War?
Richard P. Swanson, Esq.
Written by: By Richard Swanson, NYCLA President-Elect
Published On: Mar 09, 2024
Category: News & Insights


I’m a little obsessed with the Supreme Court’s decision earlier this week in Anderson v. Trump, the Supreme Court decision that rejected the Colorado Supreme Court’s ruling that disqualified former President Trump from the ballot based on his having been involved in an “insurrection.” This is my third, and probably final, blog post on the subject, and it will focus on one of my other obsessions, which is the Supreme Court’s focus on “textualism” and “originalism.”

In Section II.A of its opinion this week, the Supreme Court ruled that the Insurrection Clause, Section 3 of the 14th Amendment, required congressional legislation to be enforceable. In many other rulings, the Court has increasingly relied on so-called “textualism” and “originalism” to support its decisions and decisional logic. I’ve always regarded those twin theories as intellectually dishonest, designed to justify an outcome which is actually based on policy grounds without having to acknowledge that fact. Words can have varying meanings, over time and based on context, so text, while unquestionably important, is often an incomplete basis for a decision which can’t be cured by quoting a dictionary alone. And, Supreme Court justices are often poor historians, cherry-picking sources, subject to confirmation bias at a minimum, and overlooking that historians often go through revisionism as well, so that the same events and eras get viewed over time in different lights. New facts emerge, new theories are formed and different ways of viewing the past make it hard to determine a single determinative “original intent” which is also hard to attribute when multiple people were involved in the actual original underlying events.

The Supreme Court’s decision this week not to disqualify former President Trump reflects the failures of both theories. If you read the text of the Insurrection Clause, it seems pretty clear. An insurrectionist is ineligible to serve. There is nothing, nada, not one iota of text in there about Congress having to pass a law for the text to be given effect. I get the problems of how to make the necessary determination that someone has been an insurrectionist…who decides, after what due process, what the standards for determination should be…but there is nothing about any of that in the actual text. I also get that Congress could pass legislation dealing with these issues if it wanted to, but there is nothing in the text that makes that a requirement. The Supreme Court simply made it all up. The Court (in reality, the five male members) weren’t making a decision on text. They were making a policy or value judgment that the Court didn’t want to deal with any of that itself, so it sent the decisions to Congress, knowing full well that Congress won’t pass any such bill. Passing the baton, knowing the baton will never in fact be handed off but will rather be dropped. That is the result they wanted to achieve, to keep former President Trump on the ballot.

And the absence of implementing legislation that the men on the Supreme Court ruled was required is relevant to the originalism theory as well. If Congress really believed that the Insurrection Clause required implementing legislation when the 14th Amendment was passed, why didn’t they pass such legislation at the time, in the period after the Civil War? How could their original intent be what the Supreme Court said was required if they did not pass such a bill? There’s not a shred of evidence for that original intent either. Again, they made it up.

The Court’s conclusion this week was deeply inconsistent with their professions of respect for the textualist and originalist theories both. Remember that the next time you see one of the justices invoking either such theory. Both theories are covers for policy judgments, where the Court is choosing a result but attempting to blame it on someone else. “Don’t blame us if you disagree with the outcome. Blame the Founders, or the Reconstructionist Congress after the Civil War who used those words, or anyone else but us. It’s not our fault. We’re just neutral arbiters, umpires calling balls and strikes.” To quote Samuel Alito when he last attended a State of the Union address, “not true.” Just another reason why I disagree with the result that the Court reached this week.


                                                                                     Richard P. Swanson

                                                                                     President-Elect, NYCLA



The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.