This Thursday, the US Supreme Court will hear oral arguments in Trump v. Anderson, involving whether or not Section 3 of the 14th Amendment excludes former President Donald Trump from the ballot. In many ways, the case has proven that necessity really is the mother of invention. Up until now, Section 3’s history has received comparatively little originalist research. But with such an important issue now at stake, dozens of scholars have filed lengthy briefs at the court exploring the original meaning of the Insurrection Clause.
A key question in Anderson is whether Section 3 of the 14th Amendment can be enforced independently by state courts without legislation from Congress. In their written argument to the Court, the parties challenging Trump’s candidacy argue that the answer is yes. And to prove this, the brief cites three cases from 1869 where state courts excluded candidates from the ballot who had aided the Confederacy. One of these cases was from Louisiana, while the other two were from North Carolina.
As Professors Blackman and Tillman have pointed out, the Louisiana case is of minimal relevance because it was decided after a contrary federal court ruling called Griffin’s Case, and “yet…[the court] did not attempt to distinguish [that ruling], nor explain why it was wrong.” (Amicus Brief, p. 6.)
The North Carolina cases, on the other hand, were (as far as I am aware) the first cases to interpret Section 3 at the state level. As a result, it is highly likely that these two precedents from our state Supreme Court — In re Tate and Worthy v. Barrett — will play an outsized role in Anderson’s outcome, at least on this question. Given the comparative lack of research on these two cases, this article offers a brief summary of their holdings and starts to analyze them.
The enforcement legislation of 1868
Following the ratification of the 14th Amendment, Congress enacted legislation to enforce Section 3. (Id.) North Carolina also did the same at the state level in 1868, enacting a law that forbade any person who had violated the text of that section from “hold[ing] office in this state.” (Worthy v. Barrett, 63 NC 199, 200 (1869).) It is crucial to remember these acts when reading the opinions in Tate and Worthy, because the central question is whether or not the court felt it could apply Section 3, even in the absence of these enabling statutes.
In April 1868, a man named Worthy was elected sheriff of Moore County, North Carolina, but the county board of commissioners refused to seat him, arguing that he was disqualified by the 1868 state enforcement act because he had served in the Confederate government. Worthy sued the board, arguing both that Section 3 was inapplicable to county sheriffs and that he had never “engaged in” the rebellion, and the case made its way to the North Carolina Supreme Court.
The court held in favor of the board, and its reasoning must be examined carefully. In his opinion, Justice Reade framed the question before the court as whether Worthy is “disqualified from holding the office of the sheriff now, by reason of section 3 of Article 14.” At first glance, this (coupled with the fact that the opinion never mentions the federal enforcement legislation) might suggest that Reade thought Section 3 was self-executing. But the picture becomes more complicated when one reads further.
In paragraph 2, Reade goes out of his way to cite the 1868 North Carolina statute, and only includes the text of Section 3 afterwards. This implies that the court viewed its decision as applying state law against Worthy and that it simply used the text of Section 3 as a guide in interpreting that state statute. This is very different from saying that the court believed it possessed independent authority, outside of legislative enforcement schemes, to apply Section 3.
January 1869 was a busy four weeks in Section 3 case law. In addition to deciding Worthy v. Barrett, the North Carolina Supreme Court also heard the case of In re Tate, which involved very similar legal principles but applied to a prosecutor instead of a sheriff. This case involves similar language. On the one hand, it specifically invokes “the 14th Amendment.” (In re Tate, 63 N.C. 308, 309 (NC 1869)) But on the other, the laconic, one-paragraph opinion refers the reader to the court’s opinion in Worthy, stating that it had “establish[ed] the rule” in such cases. (Id.) This implies that the linguistic constraints in Worthy mentioned above were upheld in Tate.
The historical evidence surrounding Section 3 is quite broad, and I do not know enough about this subject to come to a conclusion. However, what is certain is that at least two cases from the North Carolina Supreme Court will play a major role in one of the most important landmark cases of this decade, if not this century. Once again, our state’s highest court will have a profound influence on the development of American law.