IRL RN: The 14th Amendment's Role in Trump v. Anderson and Beyond

In episode 70, we take a deep dive into the 14th amendment and how states like Colorado and Maine are using it to try to keep Donald Trump off the presidential ballots in their states this year.

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Resources:

• Fourteenth Amendment | Definition, Summary, Rights, Significance, & Facts | Britannica
• 14th Amendment Ratified (nationalgeographic.org)
• 13th Amendment - Simplified, Definition & Passed | HISTORY
• Reconstruction - Civil War End, Changes & Act of 1867 | HISTORY
• 14th Amendment: Simplified Summary, Text & Impact | HISTORY
• U.S. Constitution - Fourteenth Amendment | Congress.gov | Library of Congress
• Trump v. Anderson | Brennan Center for Justice

This episode was edited by Kevin Tanner. Learn more about him and his services here:

• Website: https://www.kevwyxin.com/
• Instagram: @kevwyxin

If you purchase from any links to resources or products, the show may make a small commission.

Transcript

Ashley: 0:00

The whole thing started back on September 6, 2023, when several Colorado voters brought a lawsuit seeking to bar former President Donald Trump from appearing on Colorado's presidential primary ballot. The voters argued that Trump is disqualified from serving as president under Section 3 of the 14th Amendment because he incited an insurrection on January 6, 2021. Welcome back to the United Cheesesteans Podcast, the show that brings kindness and women into politics.

Sara: 0:31

I'm Ashleigh and I'm Sarah, and we're two women from Ohio who are here to become more educated about American politics and build a community so we can all get involved and make an impact together, we hope will inspire and empower you along the way.

Ashley: 0:58

Hi everyone, and welcome back to the United Cheesesteans Podcast. If you've been paying attention to the news the past few months, you've probably heard mention of certain states keeping or attempting to keep Donald Trump off the ballot this November. These attempts are using the 14th Amendment from the United States Constitution to argue that he is not eligible to hold federal office any longer. We are recording this on January 31st and, with the election season heating up and the Supreme Court scheduled to hear oral arguments for this case on February 8, which will be two days from now, if you're listening to this right as it drops we want to get into the 14th Amendment today to help you understand what's going on here. So we're going to talk about what the 14th Amendment is and, of course, the rights it protects, and then we'll wrap with how it is being used or attempting to be used in some states to keep Trump off the ballot. But before we dive into all of that fun, sarah, what are we drinking?

Sara: 1:47

Wow, this is a really funny question because it's January 31st, and do you remember when we told our listeners that we were doing dry January? I think we remember that, in fact, and we most certainly did not do dry January. We did dry-ish.

Ashley: 2:04

It was damp, it was damp.

Sara: 2:05

Damp. You know, everyone keeps saying damp January, and like I just don't understand why that went viral or hit the internet over dry-ish, like I feel like dry-ish, aka what I came up with is so much better than damp.

Ashley: 2:22

Yeah, it is. I actually think it's better too.

Sara: 2:24

Thank you. And like every time I say dry-ish, people are like damp January. I'm like no, absolutely not dry January.

Ashley: 2:31

I feel like it's like the next step from dry-ish, because I feel like I was more damp than dry-ish.

Sara: 2:37

Mmm, I mean, let's just call it spade-a-spade. It was not dry January, or we could do that, okay. So what are you drinking, sarah? Okay, okay, I am drinking Melon Ball by Sugatuck Brewing. My friends got this for me for Christmas. They made their own little six-pack of beer for me, and my one friend is from Chicago, so this may be a Chicago brewery, because they went beer shopping when they were visiting family there.

Ashley: 3:07

Nice, I'm actually drinking a non-alcoholic beer, not because I succeeded at dry January, but because I am trying to be a little bit better, and I got these at the store this weekend and they're really good. It is by Go Brewing and it's like I said, it's non-alcoholic, it's a Sunshine State Tropical IPA and it won the Silver Medal 2023 Best of Craft Beer Awards. That's a very impressive, oh fun fact and it's honestly very good. It has like mango and peach and it tastes just like a real beer, which is kind of blowing my mind.

Sara: 3:38

But yeah, I'm shook. I'm definitely going to have to try that I'll save you one.

Ashley: 3:43

Okay, thank you, thank you. So what do we know about the 14th Amendment?

Sara: 3:47

Nada. If there's a word that could express zero clue even more than nada, I would use it.

Ashley: 3:53

Well then, I'm excited for you to learn today, Sarah. I knew definitely not as much as we're going to talk through today, but I knew enough, just knowing that I shouldn't say enough. I knew enough about it to know that it was like post-Civil War had to do with, you know, removing slavery, reintegrating the South with the rest of the United States. So I knew kind of those pieces. But we walked through like each section today and I definitely didn't know everything in there.

Sara: 4:19

So I'm impressed that you knew that much. I don't mean that as a dig, I mean that is very impressive.

Ashley: 4:25

I think the only reason I knew is because it came up in the news recently. I knew what it. You know what I mean. I knew the general just did it. Because of that, I don't think I would have known. If you just asked, like three years ago, what's the 14th Amendment, I would have been like I don't know what the 14th Amendment is.

Sara: 4:39

You know, one of those ones that like sticks out like Right, right, like yeah, like the first or the second. Um, yeah, no, I feel like when I've seen it in the news recently, I would just read, oh, because of the 14th Amendment, and then like that's where I would stop. I'm like okay, cool.

Ashley: 4:53

Which we're going to get into, but the section that they're using right now, like with the Donald Trump stuff, it's like not the section most people even knew existed either. So we'll get into it. It's going to be fun. Okay, Okay Well with that.

Sara: 5:05

let's get started and let's just talk about what is the 14th Amendment. So we're all on the same page here. The 14th Amendment to the United States Constitution was ratified in 1868 after the American Civil War. Most notably, it granted citizenship and equal civil and legal rights to African Americans and slaves who had been emancipated.

Ashley: 5:26

And before we dive into the 14th Amendment in detail, we need to walk through a quick history lesson, of course. So the 13th, 14th and 15th Amendments were the amendments passed during the Reconstruction Era, which is the era following the Civil War where the US worked to reintegrate southern states from the Confederacy and 4 million newly freed people into the United States. The 13th Amendment, which was the first one ratified in 1865 in the aftermath of the Civil War, abolished slavery here in the United States. The 13th Amendment states neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

Sara: 6:06

So if slavery was abolished with the 13th Amendment, then why the need for additional amendments during this era? Well, let's start with the reminder that President Lincoln was assassinated right at the end of the Civil War, which left President Andrew Johnson in charge of reuniting the country in 1865 and 1866. Andrew Johnson's plans for Reconstruction reflected his firm belief in states' rights. In Johnson's view, the southern states had never given up their right to govern themselves and the federal government had no right to determine voting requirements or other questions at the state level. Apart from being required to uphold the Abulsion of Slavery, which is in compliance with the 13th Amendment to the Constitution, also swear loyalty to the Union and pay off war debt, southern state governments were given free reign to rebuild themselves. And do you know what they?

Ashley: 6:53

did with that free reign? Sarah, tell me more, ash Tell me. Well, with that, leniency Johnson gave them. Many southern states in 1865 and 1866 successfully enacted a series of laws known as the Black Codes, which were designed to restrict freed black people's activity and ensure their availability as a labor force. These repressive codes enraged many in the north, rightfully so, including numerous members of Congress which refused to see congressmen and senators elected from those southern states.

Sara: 7:21

So in early 1866, congress passed a civil rights bill and sent it to Johnson for his signature. The bill defined all persons born in the United States as national citizens who were to enjoy equality before the law. So just to be clear on this the 13th Amendment abolished slavery, but this bill defined citizenship and the rights that came with US citizenship, in an attempt to more clearly integrate African-Americans and former slaves and affirm that all citizens are equally protected by the law. And do you know?

Ashley: 7:52

what Johnson did with that bill. What did Johnson do with the bill? He vetoed it, which then Congress overrode his presidential veto and this actually turned into the Civil Rights Act of 1866 and made it the first major bill to become law over presidential veto. Fun fact for the episode Wow yeah. So all of this leads us back to the 14th Amendment. Congress believed that another amendment to the Constitution was required to provide firm constitutional ground for the new legislation to stand on meaning, if this new legislation was challenged in the courts, these rights would be protected by the Constitution. Hence the 14th Amendment. Woo.

Sara: 8:31

History, you know History, history, history. So to ensure citizenship and the rights of citizens were defined in the Constitution, the 14th Amendment was ratified in 1866, like we said earlier and is made up of five sections. So let's now get into those details. The first section has four clauses. The first clause of section one of the 14th Amendment defined US citizenship as all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. This clearly rejected the Supreme Court's notorious 1857 Dred Scott decision, in which Chief Justice Roger Taney wrote that a black man, even if born free, could not claim rights of citizenship under the federal Constitution. So that's obviously a huge deal.

Ashley: 9:27

Yes for sure. Section 1, second clause was no state shall make or enforce any law which shall abridge the privileges or amenities of citizens of the United States. This greatly expanded the civil and legal rights of all American citizens by protecting them from infringement by the states as well as by the federal government. This did limit some state power.

Sara: 9:46

The third clause states nor shall any state deprive any person of life, liberty or property without due process of law, which ultimately expanded the due process clause of the Fifth Amendment to apply to the states as well as the federal government. Over time, the Supreme Court has interpreted this clause specifically to guarantee a wide array of rights against infringement by the states, including those in the bill of rights, so freedom of speech, free exercise of religion, right to bear arms, etc. As well as the right to privacy and other fundamental rights not mentioned elsewhere in the Constitution.

Ashley: 10:20

Finally, the last clause of Section 1, also known as the Equal Protection Clause, states nor deny to any person within its jurisdiction the equal protection of the laws. This was clearly intended to stop state governments from discriminating against black Americans and, over the years, would play a key role in many landmark civil rights cases.

Sara: 10:38

So that's Section 1. Moving on to Section 2, this repealed the 3-fifths clause, which is Article 1, section 2, clause 3, of the original Constitution, which counted enslaved people as 3-fifths of a person for the purpose of apportioning congressional representation, with slavery outlawed by the 13th Amendment. This clarified that all residents, regardless of race, should be counted as one whole person. Wow, incredible right, like that's just a crazy thought. You know, this section also guaranteed that all male citizens over age 21, no matter their race, had a right to vote. Of course, southern states continued to deny black men the right to vote, using a collection of state and local statutes during the Jim Crow era. As we know, it took additional amendments later in history to the Constitution to grant women the right to vote.

Ashley: 11:28

All right, moving on to Section 3.

Ashley: 11:30

Section 3 of the Amendment gave Congress the authority to bar public officials who took an oath of allegiance to the US Constitution from holding office if they engaged in insurrection or rebellion against the Constitution.

Ashley: 11:42

The intent was to prevent the President from allowing former leaders of the Confederacy to regain power within the US government after securing a presidential pardon.

Ashley: 11:51

It states that a two-thirds majority vote in Congress is required to allow public officials who had engaged in rebellion to regain the rights of American citizenship and hold government or military office. This section states 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 give an aid or comfort to the enemies thereof. And I know that was a mouthful. So, if it's not obvious, this is the clause that is now being used in states across the country to challenge Donald Trump's eligibility to be on the ballot for a federal position in this case, the presidency and we will talk more about this and how this is playing out here shortly.

Sara: 12:47

But before that we're going to move on to Section 4. Section 4 of the 14th Amendment states that the validity of the public debt of the United States authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. Historians believe the clause was intended to ensure the federal government would not deny its debts, as some former Confederate states had done. It also prohibited payment of any debt owed to defunct Confederates states of America and banned any payments to former enslavers as compensation for the loss of enslaved people.

Ashley: 13:24

And, lastly, the fifth section of the 14th Amendment. It states Congress shall have the power to enforce by appropriate legislation the provisions of this article, and this echoed a similar enforcement clause in the 13th Amendment. By giving Congress power to pass laws to safeguard, in particular, the right of Section 1 of the 14th Amendment, it really altered the balance of power between the federal and state governments in the US. So now let's look at how this amendment has been interpreted by our court systems throughout history, and something I found really interesting in researching for this episode is that the clauses of the 14th Amendment, especially the Equal Protection Clause, which is that Clause 4 in Section 1, I read that it's among the most litigated and controversial in US history. So I think you'll notice some names here as we walk through court cases. Wow Zah, we're about to hear the T. We are so in its early decisions the Supreme Court's decisions involving the 14th Amendment they often limited the application of its protections on state and local levels.

Sara: 14:20

In Plessy v Ferguson in 1896, the court ruled that racially segregated public facilities did not violate the Equal Protection Clause of the 14th Amendment, a decision that would help establish infamous Jim Crow laws throughout the South for decades to come. But beginning in the 1920s, the Supreme Court increasingly applied the protections of the 14th Amendment on the state and local level. Ruling on appeal in the 1925 case Gitlow v New York, the court stated that the due process clause of the 14th Amendment protected the First Amendment rights of freedom of speech from infringement by the state as well as the federal government.

Ashley: 14:58

And in its famous 1954 ruling in Brown v Board of Education, the Supreme Court overturned the separate but equal doctrine established by Plessy v Ferguson ruling that segregated public schools did in fact violate the Equal Protection Clause of the 14th Amendment. And the 14th Amendment has been cited by the Supreme Court in several other landmark rulings, including the use of contraception in 1965's Griswold v Connecticut, the protection of interracial marriage in 1967's Loving v Virginia, the right to an abortion in 1973's Roe v Wade, which we all know was eventually overturned in 2021, a highly contested presidential election, 2000's Bush v Gore, gun rights in 2010's McDonald v Chicago and the right to same-sex marriage in 2015's Beau Bergefeld v Hodges.

Sara: 15:45

Obviously, the 14th Amendment has had a very large impact throughout history, but one thing to note is that Section 3 has not really been cited or put up to the Supreme Court for interpretation before, but that's about to change. So real quick, because it was at the beginning of the episode when we talked about this. We'll remind you that Section 3 of the 14th Amendment gave Congress the authority to bar public officials who took an oath of allegiance to the US Constitution from holding office if they, in quotes, engaged in insurrection or rebellion. Unquote against the Constitution, and the intent here was to prevent the president from allowing former leaders of the Confederacy to regain power within the US government. After securing a presidential pardon, it states that a 2-thirds majority vote in Congress is required to allow public officials who had engaged in rebellion to regain the rights of American citizenship and hold government or military office.

Ashley: 16:37

And this is specifically the section of the 14th Amendment being used to keep or attempt to keep Donald Trump off the ballot in various states. The whole thing started back on September 6, 2023, when several Colorado voters brought a lawsuit seeking to bar former President Donald Trump from appearing on Colorado's presidential primary ballot. The voters argued that Trump is disqualified from serving as president under Section 3 of the 14th Amendment because he incited an insurrection on January 6, 2021.

Sara: 17:04

I'm just going to say that's pretty impressive that just this whole thing just started with a handful of Colorado voters. You know why didn't we do anything?

Ashley: 17:12

so bad.

Sara: 17:13

We're slacking.

Ashley: 17:14

I can't believe we didn't think it like this. We didn't even know it was. Section 3 of the 14th Amendment said so.

Sara: 17:18

it's like it's true we know now, this must have been some civics teachers. Ok. And then, on November 17, 2023, a Colorado trial court concluded that Trump engaged in insurrection under Section 3, but determined that Section 3 does not apply to the office of the president and therefore permitted Trump to appear on the presidential primary ballot. On December 19 of 2023, the Colorado Supreme Court reversed the lower court's decision and held that Trump is disqualified from holding the office of president and, as a result, cannot be listed as a candidate on the presidential primary ballot.

Ashley: 17:57

Ian Mayn got in on the action a bit here as well, and at the end of December 2023, mayn's Secretary of State disqualified Trump from the 2024 ballot based on his role in the January 6 insurrection. She paused her decision pending appeals. On appeal, a judge extended the pause until the US Supreme Court decides the Colorado case. It's also important to note that there are cases in many other states that just haven't really had rulings or have been dismissed for various reasons, but this is popping up in other places as well.

Sara: 18:26

Oh, I didn't know that. Ok, so the Colorado and Mayn are the ones that are making it.

Ashley: 18:30

Those are the ones that officially did something to take him off the ballot.

Sara: 18:33

yeah, I got you OK. So then, on January 3, trump asked the US Supreme Court to overturn the Colorado High Court's decision. The plaintiffs in the case also asked the US Supreme Court to take up the appeal. On January 5, the US Supreme Court agreed to hear the case. Like we said, by the time this episode airs, this case, which is Trump v Anderson, will be about to kick off in front of the Supreme Court, and whatever the result, it will ultimately be a landmark case.

Ashley: 19:02

So we hope you learned something about the 14th Amendment today and its impact throughout our history, and we hope you feel prepared to better understand the section of the 14th Amendment being used to determine if Donald Trump is eligible to be on state ballots for primary elections and, ultimately, the presidential election this November.

Sara: 19:18

So thank you all for listening today and we really encourage you to share this with all of your friends, because this is extremely important. I mean, we usually record things that are really important, but this is like in real life happening right now about the next president of the United States maybe or maybe not. It's just, it's very relevant and it's very national. So, yeah, please, please, share it and keep all of your friends and family informed on what's going on. Thanks guys, see you next week.

Ashley: 19:48

Thank, you See ya.

Sara: 19:55

Thanks for joining us for today's episode. We really appreciate the support.

Ashley: 19:59

We would also really appreciate it if you hit the follow button and share this episode with anyone you think would enjoy it.

Sara: 20:05

And we'd like to thank Kevin Tanner, who edited this episode. If you're interested in learning more about him and his services, his website and Instagram are in the show notes.

Ashley: 20:13

With that, we'll see you next week.

Sara: 20:25

Which left President Andrew Jackson in charge of reuniting the cut Johnson. Why do I just make up shit? Jackson was long dead, I think, by this point in history At least, it was a natural person that vibrated.

Ashley: 20:40

Yeah, it was, it was president at one point.

Sara: 20:43

I'm so glad you're going along with me. The first section has four classes. Damn it, I was like quick rebound, sarah, quick rebound, you got it. Nope, also four classes, what? Okay? Oh, my team's is telling me my microphone switched. Okay, now we're good Teams, or Zoom?

Ashley: 21:14

What'd you say? Teams or Zoom? Just my teacher.

Sara: 21:19

Dude, where am I? I don't know. I sit at this desk, in this seat, I know, in this little chair in the corner of my bedroom all freaking day.

Ashley: 21:26

I know, I know these are harder in the winter, when I feel like it's dark. I haven't seen the sun. Oh my gosh.

Sara: 21:32

Especially in Ohio, it's been gray for the last 31 days. Yes, okay, over time, the Supreme Court has interpreted this clause specifically to guarantee a wide a width.

Ashley: 21:52

We honestly both suck at words so bad, and I don't know how we host a podcast I know why are you doing this?

Sara: 21:58

We just started a blog.

Ashley: 22:01

I am better at writing. I think than speaking.

Sara: 22:04

Oh my God, that's just so hard. Why is that W there? Okay, you got it you got it.

Ashley: 22:14

Okay, I'm sorry.

Sara: 22:20

I just had to get it all out.

Ashley: 22:24

I'm just laughing at you, but I'm looking at the next paragraph that I don't have to read and it has a zillion court cases and I definitely don't know how to pronounce all of them, but we'll get through it. And this is just oh, my God, just sounded like a snake, it's literally a snake. So many S's Okay, my S's are already like C and then I really got into that one. Okay, no-transcript.