Prof. Michael McConnell: "'Narrow' or 'Sweeping'—What Does Originalist Evidence Have to Say?"

I'm delighted to pass along this item from Prof. McConnell (Stanford), one of the leading American originalist scholars:

I most often agree with my good friends and casebook co-authors Will Baude and Michael Paulsen on matters of constitutional interpretation. But not about the attempted disqualification of Donald Trump for running for President. My friends published the opening salvo in the current debate with their 120-plus page article arguing for a "sweeping" interpretation of Section Three of the Fourteenth Amendment. The word "sweep" is in the title of their article, and "sweeping" was repeated over a dozen times. At every point when they faced an interpretive ambiguity, they opted for the most expansive interpretation.

I responded with a brief post on this site arguing against such a sweeping interpretation, on the basis of both democratic theory and originalist evidence. I later elaborated on those themes in an essay in Public Discourse, citing evidence that the Amendment was interpreted narrowly in the several years it was actually enforced.

A few days ago, Baude and Paulsen published a new post in which they suggest that my advocacy of a "narrow" interpretation violates the originalist norm that constitutional provisions "should not be interpreted with a thumb on the scales in favor of either a 'narrow' reading or an 'expansive' reading," but simply given the reading most plausible in light of its terms and original understanding.

Well enough, but what did I actually say? "Section Three must be enforced to the full extent of its text and historical meaning. But [it] … must not be interpreted any more broadly than its text and history compel." I submit that is exactly what originalist norms call for. Moreover, my Public Discourse essay relied for its narrow interpretive approach on the actual interpretation of Section Three by those who enforced it at the time—evidence not discussed by my friends in their original article or their recent post. Persons elected to Congress who, having previously taken the relevant oath, took arms against the Union were excluded from taking office, but others who had taken acts in support of secession but had not literally "engaged in" the insurrection were allowed to take their seats. (I put the word "engaged in" in quotation marks because that is the operative constitutional term.)

For example, a Virginian, Lewis MacKenzie, was permitted to take his seat in the House despite voting in favor of secession as a pre-war member of Virginia's House of Delegates, and voting to appropriate funds to ready the State for armed hostilities with the Union. Similarly, John M. Rice of Kentucky was permitted to take his seat despite having voted for secession and even assisting in recruitment into the Southern armed forces. The distinction seems to have been that these men were not themselves combatants. While they certainly had supported the rebellion, they had not "engaged in" it—or so majorities of the House of Representatives concluded.

Commenting on enforcement proceedings at the time, one congressman noted in 1869 that the House of Representatives in its rulings on the meaning of Section Three, had "by a very decided expression of opinion, determined that it would strictly construe the rule that rendered any person ineligible for a seat in this House …. [N]obody should be disqualified unless he is clearly proven to have done some act" in violation of the Section. No one at the time described Section Three as "sweeping," and some supporters of disqualification complained it was too narrow and would not accomplish its purposes.

It turns out that the narrow reading is also the originalist reading.