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 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.

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.

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.

Because the Griffin case was not heard by the full Supreme Court, it is nonbinding. But those in the “not-self-executing” camp believe it settles the question.

“We can talk about it for a million years, but it was accepted, no one argued it, and I think it settled the issue,” says Josh Blackman, a professor at the South Texas College of Law Houston who has written extensively about Section 3.

Chief Justice Chase “knew more about the 14th Amendment than we ever will,” he adds.

But beyond the four corners of the Griffin decision lies some notable historical context, according to supporters of the self-executing theory. Chief Justice Chase had been a prominent abolitionist politician before joining the court. However, he steadfastly opposed harsh treatment of former Confederates and, according to reports at the time, was currying favor with southern Democrats in 1868 for a presidential run. 

Are parts of the Constitution more constitutional?

Even if the Griffin case did settle the self-executing question, critics ask, why has Section 3 been applied repeatedly since ratification without legislation from Congress? Since the 14th Amendment’s ratification in 1868, at least eight people have been barred from office. Most recently, in 2022, a New Mexico judge ordered a county commissioner who participated in the attack on the Capitol removed from office and banned for life from holding political positions.

Perhaps more importantly, what could it mean for other provisions of the Constitution – the highest law in the land – if the Supreme Court says Section 3 isn’t self-executing?

The Colorado Supreme Court majority wrote that if the Reconstruction amendments had not been self-executing, “Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal; Black citizens would be counted as less than full citizens for reapportionment; nonwhite male voters could be disenfranchised.”

If the Supreme Court says Section 3 isn’t self-executing, “it can’t be a general rule,” says Gerard Magliocca, a professor at the Indiana University School of Law who has written extensively on Section 3. “How they would [write] that, I don’t know.

“It would to some degree call into question other actions or decisions that were done without any authorization from Congress.”

Opponents of this view have a shorter-term concern. In the petition asking the high court to hear the case, Mr. Trump’s legal team said that even if Section 3 doesn’t “require” enforcement legislation from Congress, more clarity is needed on how Section 3 cases should proceed.

“Section 3 is silent on whether a jury, judge, or lone state election official makes factual determination and is likewise silent on the appropriate standard of review,” his lawyers wrote. “The result is that 51 different jurisdictions may (and have) adopted divergent rulings based on different standards on the same set of operative facts.”

A case that might offer clues

Which arguments will appeal most to which justices is unclear, but earlier this week, court watchers may have gotten a hint in a case out of Texas.

That case, Devillier v. Texas, bears little outward resemblance to Trump v. Anderson. Texas farmers are suing for payment after the state constructed a highway barrier that they say resulted in the flooding of their land. The farmers argue that they should be recompensed by Texas under the takings clause of the Fifth Amendment. But one similar issue is whether the takings clause is self-executing. During oral argument, Justice Samuel Alito posed potential inconsistencies.

“Does it make sense to view the Fifth Amendment as providing a right ... but your ability to vindicate that right is totally dependent on Congress’ discretionary choice?” he asked. “That sounds like a very weak right if it’s subject to limitation in that way.”

Whether he and his fellow justices will feel similarly about Section 3 remains to be seen.