On a writ of certiorari to the Colorado Supreme Court, the U. S. Supreme Court will likely decide whether former President Donald Trump (Trump) is disqualified under the Fourteenth Amendment, Section 3 (Section Three) from running in the 2024 general election for engaging in insurrection on January 6, 2021. A key argument against disqualification attacks Section Three as a non-self-executing provision and, therefore, its enforceability. Note that a non-self-executing provision is every bit constitutional; it is not usable without implementing legislation.
On January 8, 2024, the Pakistan Supreme Court ruled in short order, to be followed by detailed reasoning, that Article 62(1)(f) of the Pakistan Constitution, which disqualifies a candidate from running for a parliamentary election if they are not sadiq (honest) and ameen (trustworthy), is not a “self-executory provision.” Consequently, no disqualification under this punitive clause is valid unless the Parliament has furnished implementing legislation.
In both cases, easily ascertainable qualifications, like age, residency, and citizenship, must be distinguished from controversial and complicated disqualifications like honesty or insurrection. The screening laws must be as clear for intricate disqualifications as readily determinable qualifications.
This comparative law commentary argues that the right to run for an elected office or legislature is fundamental to democracy, no less vital than the people’s right to vote. If controversial disqualifications prevent the people from electing their favorite candidates, the right to vote loses value. Ideally, there should be minimal barriers to running for office since, in a competitive democracy, candidates inform the voters about their opponent’s faults. The election itself is an excellent disqualifying phenomenon. Democracy distrusts an overreaching paternalism for screening candidates.
A punitive constitutional provision, like Section Three or Article 63(1)(f), may be applied after a court of proper jurisdiction has convicted the candidate in a fair trial with due process. By borrowing definitions of alleged crimes like dishonesty or insurrection from Noah Webster’s dictionary, an election officer or a court of questionable jurisdiction cannot summarily enforce a punitive constitutional clause to disqualify a parliamentary or presidential candidate from an election.
Self-Executing Provisions
The distinction between self-executing and non-self-executing provisions is well-established in common law jurisdictions. The distinction used primarily for international treaties spells out that self-executing international agreements are enforceable in domestic jurisdictions, but non-self-executing treaties require implementing legislation. Though a state that ratifies a non-self-executing treaty contracts international obligations, the treaty does not confer a private right of action in domestic disputes. For example, the U.S. consented to be bound by the International Covenant on Civil and Political Rights. Yet, the U.S. courts cannot enforce the Covenant rights because it is a non-self-executing treaty. Unless Congress passes implementing legislation, the Covenant has no binding legal force in domestic litigation.
Democratic constitutions as intergenerational normative commitments are qualitatively different from treaties. The notion that some constitutional provisions are non-self-executing is frightening as it turns the Constitution into a toothless paper tiger unless the legislature animates it with dentures. There is a solid jurisprudential presumption that every constitutional provision is self-executing. Subjecting constitutional provisions to the majoritarian will of the legislature for furnishing implementing legislation compromises the supremacy of the Constitution. Common law courts will be most reluctant to undermine constitutional provisions by declaring them non-self-executing.
Despite caution against recruiting the non-self-executing notion into constitutional jurisprudence, some overly broad or poorly drafted constitutional provisions, which raise more questions than answers, cannot be fairly enforced without clarifying legislation. Article 62(1(f) of the Pakistan Constitution and Section Three of the U.S. Constitution are uncertain provisions prone to abuse and political vendetta. Disqualifying candidates under murky provisions without due process undermines the core of democracy, impinging on the people’s right to vote and knocking out their preferred candidates. Requiring enforcement legislation for uncertain provisions strengthens the Constitution.
Article 62(1)(f)
Injected into the 1973 Constitution by a military dictator, Article 62(1)(f) requires a candidate running for the Parliament to be “sagacious, righteous, non-profligate, honest and ameen (trustworthy), there being no declaration to the contrary by a court of law.” Accordingly, a court can disqualify a candidate for not being sagacious, righteous, non-profligate, honest, or ameen — a set of character traits without a settled meaning. In a prior case, a three-judge bench of the Supreme Court ruled that Prime Minister Nawaz Sharif failed the 62(1)(f) honesty test by not disclosing “unwithdrawn receivables (from his son) in his nomination papers filed for the General Elections” and must step down. As Article 62(1)(f) prescribes no period for disqualification, a five-judge bench of the Supreme Court disqualified Sharif for life.
That the Supreme Court can disqualify a sitting Prime Minister for life demonstrates the unprecedented power of the judiciary and the concomitant resilience of democracy. However, nothing is written in stone in constitutional caselaw in Pakistan or the U.S.
On January 8, 2024, overruling its prior holding, a seven-judge bench of the Supreme Court declared that Article 62(1)(f) “is not a self-executory provision.” During spirited oral arguments spanning over days and televised to the public, the Supreme Court questioned the murky meaning of 62(1)(f) and pointed out that the Constitution does not specify which court can exercise Article 62(1)(f) jurisdiction. If the highest court disqualifies a candidate, would it not undermine the jurisdiction of lower courts and the appellate process? May a civil court disqualify a candidate for being untrustworthy in a family dispute, or does the court in Article 62(1)f) mean a criminal court convicting a candidate for crimes like fraud or corruption? Furthermore, 62(1)(f) outlines no procedure for disqualification. The Supreme Court observed that the legislature could remove Article 62(1)(f) uncertainties by furnishing jurisdictional and procedural guidance to the candidates and courts.
Fourteenth Amendment, Section Three
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or 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, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Unfortunately, Section Three is as murky as Article 62(1)(f). Section Three’s first sentence comprises over 90 words, with complicated punctuation of 14 commas and clauses within clauses, and ending with an inelegant “thereof,” a prose that obfuscates clarity for most readers. It is unclear, for example, whether a presidential primary candidate is included in its scope. The Colorado district court ruled that Section Three does not apply to presidential primary candidates, whereas the Colorado Supreme Court stated it did.
Three Justices of the Colorado Supreme Court dissented for various reasons from the per curium opinion upholding Trump’s disqualification. Justice Samour, in a feisty dissent, noted at length that Section Three does not self-execute. He states that Congress alone can furnish implementing legislation, and “it is improper for state legislatures, in the absence of federal legislation, to create pseudo causes of action pursuant to Section Three’s disqualification clause.”
Section Three is replete with uncertainties. It is unclear from the text of Section Three whether the insurrection is against the Constitution of the United States by defying its provisions, or against the United States as a nation-state by challenging its territorial integrity as happened in the Civil War. The primary raison d’etre for Section Three is to prevent secessionists and traitors from becoming members of Congress and state legislatures. Section Three does not contemplate the President as a traitor and secessionist. That Section Three disqualifies a presidential candidate for disputing the authenticity of polls is a fantasying reading of its text. (Trump’s conduct on January 6, 2021, was disgraceful, which voters will consider if he runs again.)
Furthermore, there is an uncertainty that the Colorado courts did not examine. Section Three disqualifies persons who have “given aid or comfort to the enemies thereof.” What does “the enemies thereof” refer to? Suppose “the enemies thereof” refers to the United States, a much narrower construction. This reading disqualifies a presidential candidate for comforting secessionists, the enemies of the nation’s territorial integrity. By contrast, if “the enemies thereof” refers to the Constitution of the United States, such a reading dramatically expands the scope of Section Three. Now, the clause of giving aid or comfort to the enemies of the Constitution becomes a broader fishnet. Does a candidate who believes the Constitution to be a white man’s charter provide comfort to the enemies of the Constitution? May such a presidential candidate be disqualified under Section Three?
Uncertainties multiply. Much like Article 62(1)(f), Section Three does not identify who can disqualify presidential candidates. It is unclear which court, federal or state, or which executive department, federal or state, has the authority to determine the facts of insurrection. The Maine secretary of state determined that Trump was disqualified under Section Three. Is that determination as good under Section Three as a court disqualifying a presidential candidate? Suppose state courts, state secretaries, or other election officials can each rule on the insurrection disqualification of a presidential candidate. In that case, the fifty states with variant laws may hold discordant trials and executive determinations under differing standards and reach conflicting decisions. Surely, Section Three does not endorse a chaos theory of democracy.
As pointed out in the Colorado dissent, it is unclear under Section Three what burden of proof is required to determine insurrection. Is the burden of proof beyond a reasonable doubt, or is it clear and convincing evidence or a preponderance of the evidence? The Colorado district court used clear and convincing proof deviating from the Colorado election laws that require only a preponderance of the evidence for screening presidential primary candidates. Is a presidential candidate charged with insurrection entitled to a jury trial?
There are other nagging questions. Does the insurrection charge require federal legislation, such as the Treason Act? Does the Treason Act implement Section Three’s “insurrection or rebellion” clause? If so, Trump must be convicted under this act before states disqualify him under Section Three. If another implementing legislation is required for procedural clarity, may the states enact statutes to implement Section Three, or must it be federal legislation to preempt chaos?
Uncertainties persist. Substantively, what are the elements that constitute insurrection? Is the person’s specific intent a critical element for engaging in insurrection? Is an attempt at a failed insurrection or conspiracy to engage in insurrection a disqualifying act? Where is the guidance for courts or state election officials to disqualify a presidential candidate accused of an attempt or conspiracy to engage in insurrection? Benefit-conferring laws can be a bit vague, but crimes or punitive provisions, taking away liberty, life, and office, must be precisely defined, and their elements cannot be left to dictionaries.
Suppose a presidential candidate is disqualified under Section Three. What is the duration of their disqualification? It is for life unless Congress removes the disability “by a vote of two-thirds in each House,” as Section Three requires? The high standard to undo disqualification versus a summary proceeding for disqualifying presidential candidates creates an intolerable asymmetry.
On one point, Section Three is crystal clear. It applies to candidates who engage in insurrection after taking an oath to support the U.S. Constitution. As such, the disqualification does not apply to insurgents who have not taken an oath to support the U.S. Constitution. This discrepancy is critical if no laws similarly disqualify the non-oather insurgents from running as presidential candidates. Perhaps the Treason Act resolves some, though not all, ambiguities of Section Three.
The Pakistan Supreme Court rightfully decided that Article 62(1)(f) demanding honesty and trustworthiness of candidates cannot be enforced as a disqualifying filter without implementing legislation. Requiring clarifying legislation for a highly uncertain constitutional provision fortifies the Constitution. The Colorado Supreme Court, though ruling that Section Three self-executes, foresaw the gravity of their holding and rightfully stayed the enforcement of their order, trusting that the United States Supreme Court would take up the matter. There is no way to predict whether the self-execution argument will influence the Supreme Court ruling. The Supreme Court will likely avoid the tasseography of a murky constitutional provision by not upholding the Colorado ruling.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at legal.scholar.academy@gmail.com.
