In our American constitutional tradition, there
are two distinct senses of self-execution:first, as a shield—or a defense—and
second, as a sword—or a theory
of liability or cause of action
supporting affirmative relief. The former is customarily asserted as a
defense in an action brought by others; the latter is asserted offensively by
an applicant seeking affirmative relief.
For example, when the government sues or
prosecutes a person, the defendant can argue that the Constitution prohibits
the government’s action. In other words, the Constitution is raised defensively. In this first sense, the
Constitution does not require any further legislation or action by Congress. In
these circumstances, the Constitution’s provisions, as [Professors] Baude and
Paulsen write, are “self-executing.”
In the second sense, the Constitution is used offensively—as a theory of liability or
a cause of action supporting
affirmative relief. For example, a person goes to court and sues the
government, or its officers, for damages in relation to a breach of contract or
in response to a constitutional tort committed by government actors. As a
general matter, to sue the federal government or its officers, a private
individual litigant must invoke a federal statutory cause of action. It is not
enough to merely allege some unconstitutional state action in the abstract.
Josh Blackman & Seth
Barrett Tillman, Sweeping
and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forth. 2024) (posted on SSRN: Sept. 19,
2023), <https://ssrn.com/abstract=4568771>. See generally Seth Barrett Tillman, Letter from Seth Barrett Tillman to the
Honorable Clarence Thomas on Suggested Sources for a Future Citation (May 31,
2024), <https://ssrn.com/abstract=4833465> (collecting other on-point 2023 & 2024 Blackman and Tillman publications and amicus briefs—all prior to the Supreme Court’s April 2024 decision in DeVillier v. Texas).
---
Similarly, notwithstanding resuscitating the
“self-execution” objection, Blackmail and Tillman recognize Section 3 has force
of law without enabling legislation. See Blackman & Tillman, supra
at 29 (“[T]he Fourteenth Amendment can be raised as a defense, even in the
absence of enforcement legislation”). The idea that Section 3 was enacted to
serve as a “shield” to protect insurrectionists and not a “sword” to
disqualify them absent further legislation runs headlong into history.
Brief of Amicus Curiae Citizens
for Responsibility and Ethics in Washington at 13 n.8, Growe v. Simon,
Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023
WL 6883478 (Minn. Oct.
6, 2023) (emphases added to shield and sword).
---
Professors Blackman and Tillman are thus wrong
to suggest that the Fourteenth Amendment somehow distinguished or was meant to
distinguish between ‘positive’ (using the Amendment as a ‘sword’) and
‘negative’ (using it as a ‘shield’) uses. Calling this an ‘American
constitutional tradition’ and claiming that the Fourteenth Amendment was meant
to ‘be wielded as a shield without legislation’ but ‘not self-executing in
court [for] … affirmative relief unless Congress provides for its enforcement’
is far-fetched to say the least. It is not a tradition and has no basis in the
many cases that were directly raised under the Fourteenth Amendment throughout
the late nineteenth and early twentieth centuries. The Fourteenth Amendment was
directly used as a sword and a shield for more than eighty years without need
of a congressional enforcement mechanism. The generation that framed the
Fourteenth Amendment must have known all this. It would not have expected the
Fourteenth Amendment’s terms to lie moribund until Congress took action.
Mark Brown, Trump and Section 3 of the Fourteenth Amendment: An
Exploration of Constitutional Eligibility, Jurist,
Oct. 12, 2023, 10:05:50 PM, <https://www.jurist.org/features/2023/10/12/trump-and-section-3-of-the-fourteenth-amendment-an-exploration-of-constitutional-eligibility/> (emphasis added); id. (citing, e.g., Ann Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 Yale L.J. 77 (1997)).
---
[T]here is
self-execution as a shield, allowing individuals to raise the
Constitution defensively, in response to an action brought by a third party.
Second, there is self-execution as a sword—such as when individuals
invoke the Constitution in advancing a theory of liability or cause of action
that supports affirmative relief. When acting as a shield, the
Fourteenth Amendment is self-executing. The Fourteenth Amendment, however,
cannot act as a self-executing sword; rather, an individual seeking
affirmative relief under the Amendment must rely on legislation from Congress.
Anderson
v. Griswold,
543 P.3d 283, 351 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citation
omitted) (bold added). See generally Trump v. Anderson, 601 U.S. 100 (Mar. 4, 2024) (per curiam),
rev’g Anderson v. Griswold (Colo. 2023) (per curiam).
---
Whether Section Three creates a federal cause
of action is irrelevant in this case because the electors are using Colorado
state election law as their procedural vehicle. The sword/shield metaphor may
be evocative, but here it simply confuses the issue. The Constitution is
neither weapon nor armor. It is law.
Brief
of Amicus Curiae Professor Kermit Roosevelt in Support of Respondents at 4, Trump
v. Anderson, 601 U.S. 100 (brief filed: Jan. 30, 2024) (No. 23-719), 2024 WL
399941 (emphases added), <http://tinyurl.com/2zrujc89>.
---
In DeVillier v. Texas, the Court stated:
Constitutional
rights do not typically come with a built in cause of action to allow for
private enforcement in courts. See Egbert v. Boule, 596 U. S. 482,
490–491 (2022). Instead, constitutional rights are generally invoked
defensively in cases arising under other sources of law, or asserted
offensively pursuant to an independent cause of action designed for that
purpose, see, e.g., 42 U. S. C. §1983.
DeVillier v. Texas, 601 U.S. 285, 291 (Apr. 16, 2024) (Thomas, J., for a unanimous Court) (emphases added),
<https://tinyurl.com/bdj8a9du>.
All this happened in a span of about seven months. I find it striking that the DeVillier Court put forward its position absent any prior Supreme Court authority, other judicial authority, or, even, any scholarly authority. Is it possible that the unanimous Court believed its position entirely obvious?
---------------------
Seth Barrett Tillman, A Year’s Changes to the Intellectual Landscape Governing Federal Litigation, New Reform Club (Aug. 15, 2024, 4:38 AM), <https://reformclub.blogspot.com/2024/08/a-years-changes-to-intellectual.html>.
See also Seth
Barrett Tillman, Letter from Seth Barrett Tillman to the Honorable Clarence
Thomas on Suggested Sources for a Future Citation (May 31, 2024),
<https://ssrn.com/abstract=4833465>.
Compare Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forth. circa Sept. 2024) (originally posted, on SSRN, on Sept. 19, 2023), <Sweeping and Forcing the President into Section 3>, with William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605 (2024).
