Rory K. Little, the Joseph W. Cotchett professor of law at the University of California College of the Law, San Francisco. Courtesy photo
There is a plain language, if unsatisfying, path for the U.S. Supreme Court to avoid the politically explosive constitutional issues surrounding Donald Trump’s current campaign for the presidency. Unfortunately, the path described below will not be satisfying to people who vehemently oppose Trump, and I count myself among that number. But “constitutional avoidance” is a wise doctrine based on not deciding constitutional cases unless a solid case or controversy demands it. Because the constitutional text of Section 3 of the Fourteenth Amendment only blocks people from “holding” a federal office, and not from running for it, and because something unexpected may happen between now and Nov. 5, the court should, briefly and unanimously, reverse and remand the Colorado Supreme Court decision currently set for argument on Feb. 8.
There seems to be a popular misunderstanding of what the Fourteenth Amendment actually says. The text of Section 3 says nothing about who may run for office. It says “No person shall … hold any office” if they have engaged in insurrection. “Hold,” not “run for.” Any common understanding of those words means that the amendment says nothing about excluding someone from a ballot. That issue is a matter of state, no constitutional, law. And yet four weeks ago, the Colorado Supreme Court ruled that Trump is constitutionally disqualified to be president and cannot be listed on that state’s primary ballots. To the extent that that constitutional ruling embodied a simple textual error lacking clear and complete constitutional analysis, the justices should unanimously say so.
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