Inclusion of Trump’s name on Colorado ballot is far from clear

In his Jan. 17 op-ed, U.C. Berkeley Law Dean Erwin Chemerinsky supports the Colorado Supreme Court's ruling that the U.S. Constitution's Fourteenth Amendment allows a State to disqualify Donald Trump from appearing on its presidential ballot. In doing so, he concludes that congressional action is not required for a candidate for president to be disqualified under section 3 of that amendment. ("Is Donald Trump disqualified from being president?" Daily Journal, Jan. 17.)

However, in Chief Justice Salmon P. Chase's opinion in Griffin's Case, 11 F. Cas. 7 (C.C. D. Va. 1869), the court ruled that section 3 of the Fourteenth Amendment is not self-executing; it can only be implemented and enforced pursuant to legislation enacted by Congress:

"The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the constitution or in an act of congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained that particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and assure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided for by congress." Id. at 20.

Dean Chemerinsky also quotes the Civil Rights Cases, 109 U.S. 3, 20 (1883) for the proposition that the Fourteenth Amendment "is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any state of circumstances." But the section of the Fourteenth Amendment at issue in the Civil Rights Cases was section 1, not 3, and after the portion of the opinion he quotes, the Court continued: "Still, legislation may be necessary and proper to meet all various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit." Ibid.

In that case, the Court held that the challenged provisions of the Civil Rights Act of 1875, which had been enacted under section 5 of the Fourteenth Amendment ("Congress shall have power to enforce, by appropriate legislation, the provisions of this article"), were unconstitutional.

He also relies on a statement made when the Fourteenth Amendment was being proposed in Congress, by Senator Lot Morrill apparently in answer to concerns of Senator Reverdy Johnson about whether disqualification would apply to candidates for President and Vice-President. He says that Senator Morrill's answer should "satisfy the Supreme Court today."

However, "floor statements by individual legislators rank among the least illuminating forms of legislative history." NLRB v. SW Gen., Inc., 580 U.S. 288, 307 (2016). And Congress' approval alone did not enact the Fourteenth Amendment; the States had to ratify it.

At that time, U.S. Senators were elected by the state legislatures, whose ratification of the Fourteenth Amendment did not so much represent the will of the People, as "the command of political leaders." Horace Edgar Flack, The Adoption of the Fourteenth Amendment 207-208 (1908). Thus, the "legislative history" of the Fourteenth Amendment is much more complex and nuanced than the comments of two legislatively elected U.S. Senators.

Dean Chemerinsky is right that the result of the U.S. Supreme Court's review of the Colorado Supreme Court's decision to prevent Donald Trump's name from appearing on that State's presidential ballot will be "momentous," but the Court's "correct" resolution of that matter is far from as clear as he suggests.

- Kris Whitten

Retired California deputy attorney general.