J. Michael Luttig and Laurence H. Tribe write:

The Supreme Court of the United States did a grave disservice to both the Constitution and the nation in Trump v. Anderson.

In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plain text and its original meaning. Despite disagreement within the Court that led to a 5–4 split among the justices over momentous but tangential issues that it had no need to reach in order to resolve the controversy before it, the Court was disappointingly unanimous in permitting oath-breaking insurrectionists, including former President Donald Trump, to return to power. In doing so, all nine justices denied “We the People” the very power that those who wrote and ratified the Fourteenth Amendment presciently secured to us to save the republic from future insurrectionists—reflecting a lesson hard-learned from the devastation wrought by the Civil War.

For a century and a half before the Court’s decision, Section 3 of the Fourteenth Amendment was the Constitution’s safety net for America’s democracy, promising to automatically disqualify from public office all oath-breaking insurrectionists against the Constitution, deeming them too dangerous to entrust with power unless supermajorities of both houses of Congress formally remove their disability. This provision has been mistakenly described by some as “undemocratic” because it limits who may be elected to particular positions of power. But disqualification is not what is antidemocratic; rather, it is the insurrection that is antidemocratic, as the Constitution emphatically tells us.

In any event, all qualifications for office set by the Constitution limit who may be elected to particular positions of power. And no other of these disqualifications requires congressional legislation to become operative, as the Court now insists this one does. To be sure, the other qualifications—age, residence, natural-born citizenship—appear outside the Fourteenth Amendment, whose fifth section specifically makes congressional action to enforce its provisions available. But no such action is needed to enforce the rights secured to individuals by Section 1 of the same amendment, so deeming congressional action necessary to enforce Section 3 creates a constitutional anomaly in this case that the majority could not and did not explain. For that matter, no other provision of the other two Reconstruction amendments requires congressional enforcement either. As the concurring justices explained, the majority “simply [created] a special rule for the insurrection disability in Section 3.”

That the disqualification clause has not previously been invoked to keep traitors against the Constitution from having a second opportunity to fracture the framework of our republic reflects not its declining relevance but its success at deterring the most dangerous assaults on our government until now. Put simply, far from what some irresponsibly dismiss as an “obscure, almost discarded provision” of our legal and political system, this section of our Constitution has long been among its mightiest pillars, one that the Supreme Court itself has now all but destroyed. [Continue reading…]