The Supreme Court got it right in Trump v. Anderson

U.C. Berkeley Law Dean Erwin Chemerinsky's article in the March 12 Daily Journal entitled "Unanimous, but wrong," uses questionable analysis about how to interpret the U.S. Constitution in reaching his conclusion that all nine U.S. Supreme Court Justices erred in Trump v. Anderson, 218 L. Ed. 2d 1 (2024), when they decided that Section 3 of the Fourteenth Amendment does not allow the State of Colorado to disqualify Donald Trump from appearing on its presidential ballot.

He says this is so because neither "the text of the Constitution or the original meaning of the provision," nor "basic constitutional principles," could have led the Court to its unanimous result.

Thus, he concludes: "There really should have been just two questions: Does Section 3 apply to the President of the United States? And if so, did Donald Trump engage in 'insurrection?' The answer to both is clear."

In my Jan. 26 Daily Journal letter to the editor responding to Dean Chemerinsky's earlier, Jan. 17, op-ed on this same subject, I pointed out that the scope and meaning of Section 3 was not determined, as he posits, by the statements of two U.S. Senators of that time, if for no other reason than: "'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."

He also criticizes the Supreme Court's conclusion that only Congress, through legislation authorized by Section 5 of the Fourteenth Amendment, can enforce Section 3 of that amendment. So, without mentioning the words of Section 5 ("Congress shall have the power to enforce this article by appropriate legislation"), he opines that "no legislation should be required to enforce Section 3, any more than for any other constitutional provision."

Then he quotes the Civil Rights Cases, 109 U.S. 3, 20 (1883)'s statement that the Fourteenth Amendment "is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any state of circumstances."

However, that case decided that portions of the Civil Rights Act of 1875, which was enacted by Congress under Section 5 of the Fourteenth Amendment to enforce Section 1, were unconstitutional.

Section 1 of the Fourteenth Amendment announces that: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside," and prohibits States from passing certain laws or depriving "any person" of certain rights. The creation of those rights was thus, "self-executing."

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

"'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.

Although in their concurring opinion in Trump v. Anderson Justices Sotomayor, Kagan and Jackson point out that Chief Justice Chase's opinion is "nonprecedential" (218 L. Ed. 2d at 14), they concurred in the Court's judgment reversing the ruling of the Colorado Supreme Court. And even the Colorado Supreme Court agreed "that there must be some kind of 'determination' that Section 3 applies to a particular person 'before the disqualification holds meaning.'" Id. at 6-7.

While it is true that the U.S. Supreme Court is not final because it is infallible, but is infallible only because it is final (Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in the judgment)), since Dean Chemerinsky starts off his March 12 article with a reference to Marbury v. Madison, 5 U.S. 137 (1803), it is only fitting to end this letter with perhaps the most quoted passage from that seminal case: "It is emphatically the province and duty of the judicial department to say what the law is." Id. at 177.