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Can the Constitution be self-executing? If not, who decides?

For the first time in American history, the U.S. Supreme Court will hear a case determining if the Constitution disqualifies a presidential candidate from the ballot.

The case will be heard next month. The candidate in question is former President Donald Trump. The clause in question is Section 3 of the 14th Amendment, a post-Civil War enactment that bars anyone who “engaged in insurrection” from holding public office. In a 4-3 decision last month, the Colorado Supreme Court ruled that because of his actions on and around Jan. 6, 2021, Mr. Trump cannot appear on the state’s ballot.

Why We Wrote This

The U.S. Supreme Court will make a historic ruling this year on whether the Constitution disqualifies Donald Trump from running for president. The case contains highly complex and rarely litigated questions – some of which are appearing in other cases this term. This month, the Monitor will be analyzing important questions the justices will be considering.

The case, Trump v. Anderson, poses one simple question: Did the Colorado Supreme Court err with its ruling? But beneath that one question lies a thicket of complex and unprecedented questions. When the justices hear oral arguments Feb. 8, they will be asked to weigh in on these challenging questions. The decision they make will be among the most important they have ever made.

Among them is the question of whether Section 3 is “self-executing.” Essentially, who enforces this clause in the Constitution? The text simply says that no insurrectionist “shall” hold public office. The specifics of how that is enforced, and by whom, are unclear. If the provision is self-executing, the Constitution compels state officials to enforce it. If it isn’t self-executing, Congress must enact a law detailing how to enforce it.

For the first time in American history, the U.S. Supreme Court will hear a case next month determining if the Constitution disqualifies a presidential contender from the ballot.

The candidate in question is former President Donald Trump. The clause in question is Section 3 of the 14th Amendment, a post-Civil War enactment that bars anyone who “engaged in insurrection” from holding public office. In a 4-3 decision last month, the Colorado Supreme Court ruled that because of his actions on and around Jan. 6, 2021, Mr. Trump cannot appear on the state’s presidential primary ballot.

The case, Trump v. Anderson, poses one straightforward question: Did the Colorado Supreme Court err with its ruling? But beneath that question lies a thicket of complex and unprecedented questions. When the justices hear oral arguments Feb. 8, they will be asked to weigh in on these challenging questions. The decision they make will be among the most important they have ever made.

Why We Wrote This

The U.S. Supreme Court will make a historic ruling this year on whether the Constitution disqualifies Donald Trump from running for president. The case contains highly complex and rarely litigated questions – some of which are appearing in other cases this term. This month, the Monitor will be analyzing important questions the justices will be considering.

Among them is the question of whether Section 3 is “self-executing.” Essentially, who enforces this clause in the Constitution? The text simply says that no insurrectionist “shall” hold public office. The specifics of how that is enforced, and by whom, are unclear. If the provision is self-executing, the Constitution compels state officials to enforce it. If it isn’t self-executing, Congress must enact a law detailing how to enforce it.

Those who say it is self-executing point to its text and history, and to precedents holding that other Reconstruction amendments, such as the one granting Black Americans the right to vote, are self-executing. They also point to the legal uncertainty it could provoke if amendments such as those prohibiting slavery suddenly needed Congress to pass a law enforcing them.

Those who say Section 3 is not self-executing argue that the only federal case specifically concerning the clause – an 1869 decision known as “In re Griffin” – ruled that a law was needed to enforce it. The history of how the section was written is muddled, they argue, and the plain text offers no guidance on how it is to be enforced, or by whom.

Kevin Mohatt/Reuters

Republican Norma Anderson, the first female majority leader in the Colorado statehouse, is one of the plaintiffs in the Colorado Supreme Court ruling disqualifying former President Donald Trump from the state’s Republican primary ballot under the Constitution’s disqualification clause.

The Griffin case stemmed from the months immediately following Section 3’s ratification in 1868. A district court in Virginia ruled that a state judge was disqualified by the clause. Chief Justice Salmon Chase – hearing the appeal as the circuit justice – overruled the decision. “Legislation by Congress is necessary to give effect to [Section 3’s] prohibition,” he wrote.

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