For two centuries it has emphatically been the province and duty of the judicial department to say what the law is
Now is no time for the U.S. Supreme Court to go wobbly on interpreting section 3 of the Fourteenth Amendment
December 24, 2023
Letters to the Editor
The New York Times
Re: “Barring Trump From the Ballot Would Be a Mistake,” Opinion by Samuel Moyn, December 24, 2023, Sunday Opinion 4)
To the Editor:
Chief Justice John Marshall in Marbury v. Madison (1803) declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Section 3 of the Fourteenth Amendment is no exception to that judicial duty. The text, including “shall have engaged in insurrection” against the United States, is less vexing than many applications of free speech, the right to keep and bear arms, or the one-person, one-vote apportionment standard. Indeed, insurrection is defined in the federal criminal code, 18 U.S.C. 2383.
The extraconstitutional political reasons Professor Samuel Moyn advances for the U.S. Supreme Court to renounce its duty to interpret and apply section 3 to Donald Trump’s January 6, 2021, appalling malfeasance and nonfeasance would mean the end of judicial review when it is most needed, i.e., when hysteria and thugs threaten the rule of law. Mr. Moyn worries that many might not accept a Supreme Court decision which disqualified Mr. Trump for the 2024 presidential election. He should worry more about the Supreme Court’s surrender to intimidation which would only embolden more of the same.
After a five-day trial that more than amply satisfied due process, a Colorado court found that Mr. Trump had engaged in insurrection against the United States by orchestrating an attack on the Capitol to prevent Vice President Mike Pence from performing his constitutional duty to count state-certified electoral votes under the Twelfth Amendment. The Colorado Supreme Court affirmed that factual finding which animates section 3. The United States Supreme Court should apply the plain language of section3 and sustain the Colorado Supreme Court. If its decision is defied by Mr. Trump’s true believers like the Southern Manifesto’s truculent opposition to desegregation mandated by Brown v. Board of Education (1954), it will be up to the American people, President Joe Biden, and Congress to stand by the law and prosecute the offenders accordingly.
Sincerely,
Bruce Fein, associate deputy attorney general under President Regan and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy
300 New Jersey Avenue, N.W., Suite 900
Washington, D.C. 20001
Phone: 202-465-8728; 703-963-4968
Email: bruce@feinpoints.com