Stormy Daniels

UGCR

For The Washington Post

RUSSIA-US-DIPLOMACY-BASKET-COURT

Contributor

The Washington Post

(Michelle Kondrich/The Washington Post)

**ONE TIME USE ONLY FOR OP-LAMOTT

Sonia Sotomayor,Clarence Thomas,John Roberts,Samuel Alito,Elena Kagan,Amy Coney Barrett,Neil Gorsuch,Brett Kavanaugh,Ketanji Brown Jackson,Michael Dreeben

Children holding hands

ONE TIME USE FOR OP-CARNEY KIDS 

FEDERALISTGALA

Four Dalmatian Puppy

other

People visit the site of the Nova festival, in Reim

Fake Electors Indictment Arizona

Israel Palestinians Campus Protests

US-PALESTINIAN-ISRAEL-EDUCATION-CONFLICT

**ONE TIME USE ONLY FOR OP-SMITH-HIGHER-ED

Former U.S. President Trump's criminal trial on charges of falsifying business records continues in New York

POOL

Respond to prefers-color-scheme dark in app web views

Follow section front redirects in Spectrum

Enable NLP source in PCS for load testing

Switch off the News Alerts Survey Widget when we have enough responses

Poll to determine if new LUF updates are available

Allows the winning A/B test variant to be turned on without Spectrum deployment

Show infinite scrolling sections in Assembler MultiView

Show option for NLP article summaries in Action Bar

Show NLP summaries collection recirc on article pages

A general feature flag for Recipe Features that aren't yet released

Feature flag for media team features that aren't yet released

Use new Orca video player for preroll plugin in Spectrum

Show the snow tracker (instead of the heat tracker) on Spectrum

Narrative of Trump snoozing in court takes hold — much to his annoyance

Of course Trump intertwined the Trump Organization into his presidency

Trump might not go to jail, but this trial is a close second

The urgent air defense lessons of April 16 

Are smartphones destroying childhood? It’s complicated.

In the campaign against Donald Trump, do the ends justify the means?

Nats win opener at Fenway behind Patrick Corbin and a lockdown bullpen

Jayden Daniels makes Commanders debut at rookie minicamp: ‘He’s a stud’

To get outs with his fastball, Trevor Williams put his ego aside

The case for eating at Italian gas stations

Cruise ship drags dead whale into New York, prompting investigation

5 big travel lessons from an accomplished conservationist

Kristi Noem’s dog killing is pure Southern gothic

Claire Messud turns her family’s history into a masterpiece

Joseph Epstein, conservative provocateur, tells his life story in full

Miss Manners: Journalist posts on social media about a typo at another outlet

Carolyn Hax: Why is he trying to sabotage his partner’s very public success?

Ask Amy: What do I say about my former walking buddy who yelled at me?

Bishop vanished. His species can still be saved.

In photos: Extreme solar storm brings spectacular northern lights

What actually happens within your lawn when you don’t mow it

Courtroom photo ban adds to hurdles for Trump trial journalists

Israel’s shameful ban on Al Jazeera

Checks, not sex, and other takeaways from Trump’s New York hush money trial

Malaysia’s appetite for oil and gas puts it on collision course with China

Horse’s rooftop rescue gives flood-hit Brazil ‘something we could root for’

Russia unleashes new attacks on Ukraine’s Kharkiv border region

I used to dismiss my mom’s advice. Then I found a note she wrote before she died.  

Photos of his mom at lunch are a balm people didn’t know they needed

Dog hit by car loses leg, is adopted by firefighter who helped her

Google’s new ‘Find My’ device network is useful but a stalking risk

Apple apologizes for iPad ad after blowback 

Hack targeting hospital chain Ascension is impacting patient care

US-POLITICS-BIDEN

Sherrilyn Ifill, a visiting professor at Harvard Law School, will launch the 14th Amendment Center for Law &amp; Democracy at Howard Law School in 2024.

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 <a href="https://www.washingtonpost.com/politics/2023/11/20/judge-says-trump-incited-insurrection-other-judges-have-come-close/" target=_blank>decision that Trump</a> 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.

I use the word “radical” deliberately. 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, the formerly enslaved abolitionist who rose to become one of the most prominent voices of the Reconstruction period, had no illusions about the persistence of the “malignant spirit” of the “traitors.” <a href="https://www.blackpast.org/african-american-history/1865-frederick-douglass-what-black-man-wants/" target=_blank>He predicted </a>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. Most lawyers never learn about Section 3 during law school or thereafter. The recent scholarly duels that have emerged over its meaning reflect its surprise introduction to many seasoned constitutional scholars. But there is little room for confusion in interpreting it.

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.” Their <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751" target=_blank>exhaustive research</a> points inexorably toward the conclusion that Section 3 is meant to cover both the president and vice president, as well as other federal and state officials. 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 (Plessy v. Ferguson, 1896) that essentially nullified the 14th Amendment for Black people in the South for nearly 100 years after its ratification. Later, the court created onerous burdens to prevailing in discrimination cases brought under the 14th Amendment.

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 imposed in full measure when the status quo will be upended. This was perhaps most famously on display in 1955, in the case of Brown II, when the Supreme Court undercut its majestic decision of a year earlier in Brown v. Board of Education, by hedging on the immediate end to segregated schools and counseling instead that local officials should move with “all deliberate speed.”

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 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 proved 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.

Sherrilyn Ifill

washpost

U.S. courts fear the radical 14th Amendment

the-washington-post

ONE TIME USE FOR OP-IFILL ON FOURTEENTH 14TH AMENDMENT TRUMP

Editorials

Columns

Guest opinions

Cartoons

Submit a guest opinion

Today's Opinions newsletter

Opinions

Sign up for the Prompt 2024 newsletter for opinions on the biggest questions in politics

Washington Post Opinions

The Washington Post Opinions section features opinion articles, op-eds, editorials by the Editorial Board, global opinions and letters to the editor on the issues of the day. Offerings include columns by Washington Post opinion writers, political cartoons by editorial cartoonists Ann Telnaes and Michael de Adder and podcasts by Jonathan Capehart.