Why Are U.S. Courts Afraid of the 14th Amendment?

The recent Colorado ruling upholding former president Donald Trump’s appearance on Colorado’s 2024 presidential ballot found that Donald Trump engaged in insurrection but is nevertheless left qualified to run for office - a result in opposition to the clear language of Section 3 of the 14th Amendment to the U,S. Constitution.  What gives?  If Trump engaged in insurrection, ruling he is not eligible to run for federal office should be a no brainer, slam dunk, yet the Court refused to follow the clear language of Section 3.   The ruling is on appeal to the Colorado Supreme Court which will hopefully, reverse the lower court and bar Trump from the ballot.  Whatever happens, as a column in the Washington Post lays out, the lower court ruling is but one of a long line of judicial decisions weakening, if not outright gutting, the dictates of the 14th Amendment. Should the case ultimately make it to the U.S. Supreme Court, it will be telling if the so-called originalist ignore the plain, clear cut language of Section. If the Court allows Trump to remain on the ballot in Colorado - and by extension elsewhere  - it would be yet another shameful ruling by the Court which allowed the Jim Crow laws of the segregated South to stand for the better part of a century.  Here are column excerpts:

Why are U.S. courts so determined to dilute the 14th Amendment?

Consider the recent ruling upholding former president Donald Trump’s appearance on Colorado’s 2024 presidential ballot. Here we have the latest entry in a dismaying 155-year tradition of American judges stripping that radical amendment to the U.S. Constitution of its intended power.

Judge Sarah B. Wallace’s decision that Trump engaged in insurrection but is nevertheless qualified to run for office is emblematic of the often outright resistance courts have shown to the 14th Amendment’s guarantees and protections. This instance applies to Section 3, which bars any participant in a rebellion against the government of the United States from holding public office. But almost from its inception, all the amendment’s radical provisions have inspired fear and timidity in jurists of every stripe.

The 14th Amendment was conceived of and pushed by the “Radical Republicans” in Congress after the Civil War. They were so named because of their commitment to eradicating slavery and its vestiges from American political life. A number had been abolitionists, and all had seen the threat that white supremacist ideology and the spirit of insurrection posed to the survival of the United States as a republic. Although the South had been soundly defeated on the battlefield, the belief among most Southerners that insurrection was a worthy and noble cause, and that Black people — even if no longer enslaved — were meant to be subjugated to the demands of Whites, was still firmly held.

The 14th Amendment was meant to protect Black people against that belief, and the nation against insurrection, which was understood to constitute an ongoing threat to the future of our country. Frederick Douglass . . . had no illusions about the persistence of the “malignant spirit” of the “traitors.” He predicted that it would be passed “from sire to son.” It “will not die out in a year,” he foretold, “it will not die out in an age.”

It was of this understanding that Section 3 was born. . . . The language is clear: “No person shall … hold any office, civil or military, under the United States, or under any state, who having previously taken an oath as a member of Congress, or as an officer of the United States … shall have engaged in insurrection or rebellion against the same.” William Baude and Michael Stokes Paulsen, widely respected conservative constitutional legal scholars, have combed through the legislative history to answer the question of whether the president is to be considered an “officer of the United States.” . . . They note the “absurdity” of imagining that the Reconstruction Congress would include all other officers, yet exclude those two.

Wallace’s decision is of a piece with courts’ frequent unwillingness to contend honestly with all the radical demands of the 14th Amendment. During Reconstruction and the first half of the 20th century, it was the Supreme Court that left unprotected Southern Black people seeking to vote and engage in the political process in the face of deadly violence by White mobs seeking to disenfranchise them (United States v. Cruikshank, 1875). It was the Supreme Court that held that the 14th Amendment did not protect Black citizens from discriminatory conduct by private actors (Civil Rights Cases of 1883). And it was the Supreme Court that endorsed a system of Jim Crow segregation that essentially nullified the 14th Amendment for Black people in the South for nearly 100 years after its ratification (Plessy v. Ferguson, 1896).

In short, post-Reconstruction courts have rarely upheld or applied in full the ambitious demands of the 14th Amendment. Instead, its guarantees have been watered down to accommodate the political forces of the day or repurposed to serve powerful interests (such as the dubious determination that corporations are “persons” entitled to its protections), or treated like an a la carte menu, in which some items — such as the guarantee of privileges and immunities and all of Section 2 (which would reduce state representation as punishment for voter suppression) — are essentially ignored.

The 14th Amendment is treated as a suggestion, but rarely in full measure when the status quo will be upended. . . . The Colorado court’s approach to Section 3 continues this tradition. To find that a president incited a violent insurrection against the United States, but to hold that such a president can still run for public office — indeed to return to the presidency itself — could not stand in starker opposition to the words and spirit of Section 3.

The 14th Amendment has once again proven too bold for the judges empowered to interpret it. Political forces are at play again, this time fearful of a backlash if Trump is removed from the ballot. As this case makes its way through the appellate process and, most likely, to the Supreme Court, it should be understood in the context of how the timidity and unwillingness of judges to acquiesce to the judgment of the 14th Amendment’s framers effectively derailed our democracy’s promise after Reconstruction and until the mid-20th century. We must ensure that it does not do the same in the 21st.