A law review article claiming that Donald Trump is automatically disqualified from holding elected office is getting attention in large part because it was written by two conservative, originalist law professors, William Baude and Michael Stokes Paulsen. Baude and Paulsen argue that Trump should be excluded from ballots for giving aid to an “insurrection or rebellion” in violation of Section 3 of the 14th Amendment.
There are two problems with the notion that Trump can and should be kept off the ballot by state election authorities.
First, although Baude and Paulsen’s originalism is honest and conscientious, originalists outside of academia typically won’t apply their originalism if it leads to a result at odds with their conservatism. Second, there is precedent that contradicts their argument — precedent the scholars dismiss because they say it contradicts the original meaning of Section 3.
To condense their main points, when the 14th Amendment was drafted after the Civil War, the original meaning of Section 3 was that anyone who previously held public office and then rebelled against the U.S. government should be automatically barred from office unless two-thirds of Congress made an exception. This constitutional provision is law and requires no further action by Congress to implement it, the article says. Courts can and should apply it, but we don’t need to wait for them to do so. Any government official, state or federal, whose duty it is to apply the Constitution must obey Section 3. It follows, the authors say, that the state officials who set the ballots for the primaries and general elections should exclude Trump. If he wants to fight that in court, he can. But there’s no need for the officials to wait for a judicial determination.
To state this argument is to see why it won’t be followed by state officials. Was the Jan. 6 attack on the Capitol an “insurrection”? Did Trump participate or give aid and comfort to the “enemies” of the Constitution under Section 3? These are contentious questions of constitutional interpretation.
True, all state and federal officials are sworn to uphold the Constitution. But today we are accustomed to having the judiciary, and ultimately the Supreme Court, resolve tough constitutional questions.
The Supreme Court as a whole has never directly interpreted Section 3. But in 1869, the chief justice of the United States, Salmon P. Chase, issued a circuit court opinion in Griffin’s Case interpreting Section 3. (At the time, it was normal for Supreme Court justices also to work as circuit court judges.) In it, Chase held that Section 3 was not automatically enforceable — what lawyers call “self-enforcing” — but rather could only go into effect if Congress passed a law directing its implementation. Such legislation is not today in existence.
A circuit court decision, even one written by a sitting chief justice, doesn’t formally bind the judiciary or even the other courts of appeal. Nevertheless, the opinion is overwhelmingly the most important precedent interpreting Section 3. It has not been seriously questioned by the Supreme Court or the other courts of appeal since it was set down more than 150 years ago. Because it is still on the books, ignoring it would be an act of legal irresponsibility.
To be sure, Chase’s logic in Griffin’s Case is a bit tortured, as Baude and Paulsen’s article shows over some 20 pages. Chase was clearly trying to achieve a near-term legal objective (upholding convictions by judges who had once been associated with the Confederacy and might have been disqualified by Section 3).
But nearly every important judicial opinion reflects legal and political judgments. The whole idea of precedent is that it stays in place until the courts reject it.
Originalists don’t like that. In fact, they don’t like precedent much at all, because they think a law’s original meaning has more validity than later judges’ interpretation. That’s one of the things that’s wrong with originalism. Although theoretically designed to constrain courts, originalism in fact invites judges — and others — to disrupt long-established law in favor of their preferred policy positions, dressed up as original meaning. Think of Dobbs v. Jackson, where originalists could say that the right to choose wasn’t in the original meaning of the due process clause, despite a half-century of precedent ruling otherwise.
The takeaway is that the scholars’ article helps show what’s wrong with originalism, in both theory and practice. Donald Trump is manifestly unfit to be president. But it’s up to voters to block him. Magic words from the past won’t save us.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.” ©2023 Bloomberg. Distributed by Tribune Content Agency.
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