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Michael Rappaport is one of the nation’s foremost originalist legal scholars, and the author of several seminal works. Originality and good constitution (Co-author with John McGinnis). For those who care, he is also politically quite in my favor. In a recent post on the Originalism Blog, he touched on a recent Supreme Court decision. Trump vs. AndersonSection 3 Disqualification Cases:
The Supreme Court has decided by a 9-0 vote that former President Donald Trump cannot be kept off the ballot. In my view, reasoning in opinion is a disaster…. While I agree with the court that Trump cannot be disqualified, it is not because of the non-originalist, majority-constructed reasoning and consensus. This is why Section 3 applies to those who engage in rebellion, not to those who support riots.
In my view, Section 3 is self-enforcing. This is very clear from the constitutional text. Section 3 prohibits sworn insurgents from serving in certain offices. State officials are required to take an oath to uphold this constitutional provision. That Congress is specifically empowered to require a two-thirds vote to repeal the bar makes this even clearer. The section cannot simply say that only Congress or the federal government can enforce it.
The opinion relies on loose, non-textual reasoning. It says that the 14th Amendment limits state sovereignty and therefore it is not possible to allow state enforcement against federal candidates. But the 14th Amendment limits the state’s sovereignty only to the rules that it prescribes. For example, it prohibits states from violating equal protection laws. But it does not prohibit the state from enforcing the equal protection clause. Conversely, a state may pass a law that enforces an equal protection clause….
The Supreme Court’s opinion said that nothing in the Constitution gives the states the power to disqualify federal candidates. But this is clearly wrong under the original meaning. The Constitution states that “Each State shall appoint, in such manner as the Legislature may direct, a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in Congress.” This provision gives the states discretion in how to conduct their presidential elections. State legislatures may decide not to hold elections but may assign their electoral votes to a candidate of their choice. States have broad powers to regulate their presidential elections. While this authority may be subject to other constitutional limitations, the Court here indicates no such limitation.
Some may question whether the Constitution can really allow individual states to disqualify people for rebellion, given how difficult the term can be to define. But the constitution did not leave the problem unsolved. Congress has the authority, under Section 5 of the 14th Amendment, to prevent state incompetence by creating federal procedures for such incompetence. Even without such federal legislation, the Supreme Court has jurisdiction to hear challenges to state decisions, as it did in this case (although it is possible that such challenges may not lead to full national uniformity of Section 3 questions…. ).
It is true that presidential elections are seen as national elections. This view has led many to view the Electoral College as inconsistent with such national elections and to argue for a national popular vote method instead. But it is not the system that establishes the constitution. Instead, the Constitution gives the states significant authority over presidential elections. That is the real meaning.
I think Mike is right here on all accounts. I presented some such criticisms of the court’s decision here.
As Mike suggests, even if the court had ruled against Trump on the issue of death itself, he could potentially avoid disqualification on a number of other grounds, one of which is that the January 6th attack was “rebellious.” “No. But just another type of violence.
In my opinion, the attack on the Capitol on January 6 was clearly a coup (see here and here). On the other hand, the argument is so weak that Trump’s attorney Jonathan Mitchell chose not to advance it in his briefing before the Supreme Court.
Mitchell argued much more strongly that Trump’s involvement in the attack was not large enough to qualify as “engaged” in the coup. I think that was the best argument on Trump’s side of the issue, although I also think that the Colorado Supreme Court offered compelling reasons to reject it.
Be that as it may, Michael Rapport is correct in relying on the Federal Supreme Court’s assertion that Section 3 is not an automatic process with respect to candidates for federal office. It is, as he puts it, an “unprincipled, practical solution” of the case, which cannot be justified on the grounds of the original.
I am less inclined to believe that he is correct in suggesting that this conclusion is because the court’s “selfishness was strongly influenced.” Perhaps the justices moved on to a genuine, though overblown, fear that letting states decide Section 3 issues regarding candidates for federal office would lead to a chaotic “patchwork” of conflicting rulings. But if so, it is still a victory for the “living constitution” argument over originality.