The Use and Misuse of Section Three's "Legislative History:" Part I

[Note:  This is the fifth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first four essays can be found here, here, here, and here.]

The appropriate role of "legislative history" in constitutional interpretation is a subject of ongoing debate.  For originalists – those committed to interpreting and applying the Constitution according to the best evidence of the objective, original public meaning of the words, phrases, and structural logic of the Constitution, taken in context, and accounting for specialized usages or terms of art – the question should be put this way:  what light do the debates or drafting history of a provision, contained in (hopefully reliable) reports shed on the objective meaning of the language of the provision as embodied in the final, adopted constitutional text? (In the case of the original Constitution, some of the most crucial proceedings were "secret" – not publicly reported or available to the ratifying public at the time. This raises special problems which are not present in the case of constitutional amendments which were openly debated on the floor of Congress.) 

Our shared view is that such constitutional legislative history is potentially probative, second-best evidence of original, objective textual meaning. But it is important to always keep in mind that the search is for the objective meaning of the text – the actual language adopted as law – not for the "intent" or "purpose" or "understanding" of some particular person or any collectivity of persons. It is what the people involved wrote down in words, and voted to adopt, that counts – not what they might or might not have "had in mind." So while evidence of the intention or purpose of individuals involved in the drafting process might be relevant to ascertaining the meaning of the text, discovering their intent or purpose is not the ultimate goal.  Legislative history is a potential means to an end: the ultimate goal of getting the objective, original meaning of the words of the text right.

All of this results in several implications or admonitions. First, constitutional legislative history, or imputed "purposes" ostensibly found there, can never properly displace the actual textual meaning.  As we note in The Sweep and Force of Section Three (at 7-11), the language ultimately adopted sometimes overshoots or undershoots (whether deliberately or not) the drafters' supposed intentions or purposes. Second, one must be precise and careful about drawing textual inferences from legislative history – careful not to overweight individual pieces of evidence or idiosyncratic views, and precise in specifying what those views show about the actual text at issue. Third, ambiguity in the legislative history is not ambiguity in the text. The drafters of a position may well have different views, and enact a text to reflect the victory of one side or a compromise between them, or simply because something has to get done. Those involved in the drafting may well deliberately spin or unintentionally misunderstand the details of those choices. But again, it is the single, unified, text and its objective, original meaning that becomes law in our system, not the political machinations that produced it.

In The Sweep and Force of Section Three, we hew closely to these limitations on the use of constitutional legislative history.  On the occasions where we note relevant evidence from drafting history or specific debates, we carefully qualify our observations about the relevant legislative history. Legislative history does not establish textual meaning.  It serves as potentially probative, second-best evidence that can assist in understanding the meaning of the language contained in the text.  It must be handled with care.

* * *

With that preface, we turn to the constitutional legislative history of Section Three itself.  Over the past months since our article was posted, the ensuing debate has included some instructive – but also some rather dubious – uses of constitutional legislative history.  In particular, we must take issue with some serious flaws contained in Professor Kurt Lash's recent writings on this topic, which he has presented in a draft law-review article, titled "The Meaning and Ambiguity of Section Three of the Fourteenth Amendment," and, in a more telescoped form, as an online essay at the Law and Liberty website, titled "The Fourteenth Amendment's Ambiguous Section Three."  Kurt is a friend of ours and we do not wish to sound overly harsh.  But these writings contain serious problems both of history – concerning what the "legislative history" does and does not say – and of law – concerning the way constitutional legislative history is used in legal analysis of the constitutional text. 

We will start by focusing on the former problem here, and take up the latter problem more fully in a subsequent essay. There is a serious problem with Lash's presentation of the legislative history of Section Three itself.  With respect, some of what Lash says the legislative history shows is simply wrong. At best, Lash's presentation is misleading; at worst, it is a serious misrepresentation of what was said.

Lash presents a statement by Thaddeus Stevens, a prominent radical Republican member of the U.S. House Representatives, as appearing to argue that that Section Three of the proposed Fourteenth Amendment was not legally self-executing – that is, that Section Three would not have direct and immediate legal effect as a constitutional rule unless and until Congress adopted further implementing legislation.  If true, this would be relevant to an important legal point of interpretation of Section Three.  One of the propositions of our article, The Sweep and Force of Section Three, is that Section Three is self-executing in the sense that its legal rule does not require congressional legislation in order to have legal effect. (This, we think, is evident from the text, history and structure of Section Three as detailed at length in our original article, including a footnote (59) that cited five typical statements of senators – both proponents and opponents of the substance of Section Three – who all agreed or assumed that Section Three would have immediate consequences, for better or worse.)

But Professor Lash quotes Stevens as saying that Section Three "will not execute itself." That seems like relevant evidence against our conclusion. But with all due respect, Lash's use of this quotation from Thaddeus Stevens is extremely misleading at best. In a nutshell, Lash "mixes and matches" quotations from the legislative history to make it appear that statements by Stevens concerning a different proposal actually referred to the version of Section Three ultimately adopted.

In fact, Stevens was talking about an earlier and much different proposal for a section three of the Fourteenth Amendment that would have denied all persons who had aided or supported the Confederacy of the right to vote, in all federal elections, until 1870. (That is, unlike the real Section Three, it applied to all confederates and not just former office-holders, it applied to voting in federal elections instead of office-holding, and it had a sunset clause.) But as we will explain in a moment, Stevens's comment about effectively enforcing that sweeping requirement throughout the South does not translate to the real Section Three that became law.

First let us present Stevens's comment in broader context (italicizing in bold the words that Professor Lash pulls out of context). Recall that Stevens is arguing in defense of the total voting exclusion he wished to keep in the proposed amendment as section three, even though enforcing the voting ban would require implementing legislation concerning legislative apportionment, voter registration, and other such matters:

The gentleman from Ohio [Mr. BINGHAM] who has just taken his seat thinks it difficult to carry it into execution and he proposes to put it into a bill which the President can veto.  Will my friend tell me how much easier it is to execute it as a law than as a provision of the Constitution?  I say if this amendment prevails you must legislate to carry out many parts of it.  You must legislate for the purpose of ascertaining the basis of representation.  You must legislate for registry such as they have in Maryland.  It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have the right to do.  So that objection falls to the ground.

Gentlemen tell me it is too strong – too strong for what?  Too strong for their stomachs, but not for the people.  Some say it is too lenient.  It is too lenient for my hard heart.  Not only to 1870, but to 18070, every rebel who shed the blood of loyal men should be prevented from exercising any power in this Government.  That, even, would be too mild a punishment for them.

Gentlemen here have said you must not humble these people.  Why not?  Do not they deserve humiliation?  Do not they deserve degradation?  If they do not, who does?  What criminal, what felon deserves it more, sir?  They have not confessed their sins; and He who administers mercy and justice never forgives until the sinner confesses his sins and humbles himself at His footstool.  Why should we forgive any more than He?  (Congressional Globe, 39th Congress, 1st Sess. 2544 (May 10, 1866).)

Again, Stevens was not talking about the version of Section Three we have – the officeholding ban—that was substituted for the original comprehensive ban of voting, several weeks after Stevens made this speech. This is especially important because Stevens's reasons for mentioning enforcement legislation are specific to the version of the proposed amendment he is discussing. A ban on voting might involve a voter "registry." It would be directly connected to "apportionment," which Congress deals with by legislation, and which was also altered in profound ways by Section Two of the Fourteenth Amendment, which required the South to enfranchise its newly-freed black population or else lose the ability to count that population for apportionment purposes. (Indeed, in a recent podcast episode Professor Akhil Amar, who has extremely harsh words for Professor Lash, emphasizes the role of Section Two in this passage even more than we do here.) But the fact that Stevens anticipated Congress's passing legislation dealing with federal voting rights does not tell us about the legal operation of a different proposal that did not directly act upon voters.

To be sure, Lash does accurately state that Stevens's remarks came in a "speech introducing the Joint Committee's draft of the Fourteenth Amendment" – the much different earlier draft.  But he portrays the statement as evidence that Stevens believed that Section Three as finally proposed was not self-executing.  In "The Fourteenth Amendment's Ambiguous Section Three," Lash sets up the statement this way:

Similarly unclear was whether the text automatically disqualified certain persons, or whether Congress would first have to pass enforcement legislation establishing procedures that would preserve every person's right to judgment by an impartial tribunal.  (Emphasis added).

Lash then immediately invokes Thaddeus Stevens as if supporting the latter position:

In his speech introducing the Joint Committee's draft of the Fourteenth Amendment, Pennsylvania Representative Thaddeus Stevens declared that the third section "will not execute itself."  Stevens later insisted that the text would not prevent rebels from becoming President "unless in the prescription of proper enabling acts."

Lash does much the same thing in his draft law-review article manuscript (at 7):

Finally, none of the multiple drafts of Section Three addressed whether the text could be enforced in the absence of congressional enabling legislation.  Instead, key framers insisted that the text was not self-executing. For example, Joint Committee member Thaddeus Stevens explained that Congress would have to pass enabling legislation since the Joint Committee's draft of Section Three "will not execute itself." (emphasis in original)

By giving Stevens as an "example" of a "key framer[]" who "insisted that the text was not self-executing" Lash is mixing-and-matching. Stevens's statement about a different text has been misleadingly transformed into a statement about the Constitution we have. And again, later in the manuscript (at 27):

Stevens reminded his colleagues that Section Three required the passage of enabling legislation.  "[I]f this amendment prevails," Stevens explained, "you must legislate to carry out many parts of it," including legislation "for the purpose of ascertaining the basis of legislation." So to in regarding to Section Three.  "It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have a right to do.  So that objection falls to the ground."  No one at that time, or any time prior to final passage, disagreed with Stevens' declaration that the provision would not execute itself, or suggested it be redrafted so that it could be enforced even in the absence of congressional legislation.

Again, this is severely misleading. Lash's treatment conveys the impression that Stevens was speaking about Section Three of the Fourteenth Amendment, when in fact he was talking about the far more draconian disenfranchisement provision that was ultimately rejected. Stevens at no point said that the final proposal – the version of Section Three on which Congress settled, weeks later, and that became adopted as part of the Fourteenth Amendment – would require implementing legislation by Congress in order to have self-executing legal effect. Indeed, as we will see, Stevens himself would later characterize Section Three as it was eventually adopted as "wholly changed" from the May proposal, "by substituting the ineligibility of certain high offenders" for the original proposal of "disfranchisement of all rebels until 1870." (Congressional Globe, 39th Cong., 1st Sess. at 3148 (June 13, 1866)).

Stevens did not like the final, changed proposal very much.  But his objection to the final version was not that it required legislation in order to be legally operative.  Rather, his objection was that a simple officeholding ban accomplished less than Stevens thought necessary to rein in the political power of what he viewed as a still-disloyal South.  Everything of importance to Reconstruction, in Stevens's view, depended on breaking the political vise grip of the disloyal white South.

In addition to advocating for disenfranchisement of the disloyal, this also led Stevens to strongly champion further, more radical, measures to mandate and guarantee that recently freed former slaves be given the right to vote.  (That was ultimately accomplished by the Fifteenth Amendment, proposed by Congress in 1869 and ratified in 1870, but Stevens would not live to see it come to pass.  He died in 1868.)  This leads us to another confusion from Lash.

Here is Stevens, on June 13, 1866, commenting on the final version of the proposed Fourteenth Amendment, including its "wholly changed" Section Three, and on the need to enfranchise black citizens in order to remedy the amendment's shortcomings:

The Third section has been wholly changed by substituting the ineligibility of certain high offenders for the disfranchisement of all rebels until 1870.

This I cannot look upon as an improvement.  It opens the elective franchise to such as the States choose to admit.  In my judgment it endangers the Government of the country, both State and national; and may give the next Congress and President to the reconstructed rebels.  With their enlarged basis of representation, and exclusion of the loyal men of color from the ballot-box, I see no hope of safety unless in the prescription of proper enabling acts, which shall do justice to the freedmen and enjoin enfranchisement as a condition-precedent.  (Congressional Globe, 39th Cong. 1st Sess. at 3148 (June 13, 1866)).

Professor Lash spins Stevens's statement this way (at 7): "Once Congress had finalized the language of Section Three, Stevens again noted the need for Congress to pass enabling legislation."  Partially true: Stevens thought that further measures were needed to "do justice to the freedman and enjoin enfranchisement as a condition-precedent."  But he was not talking about enforcement acts to effectuate Section Three's officeholding ban, nor was he suggesting that Section Three was legally inoperative until such acts were passed. Rather, his point was that there was much more work to be done, in general, to make Reconstruction effective and to protect blacks' civil and political rights.  (Indeed, Lash's manuscript acknowledges as much at a later point, recounting Stevens's 1867 proposal of legislation to enfranchise black Americans in the South as part of the 1867 Reconstruction Acts).

Lash tries the same trick with statements made by Senate Judiciary Chairman Lyman Trumbull.  Lash invokes a newspaper report of a statement made by Senator Trumbull, again as if to suggest that Trumbull was saying that Section Three was not legally self-executing – that is, that it did not have automatic legal effect as a constitutional rule simply by virtue of its inclusion as part of the Fourteenth Amendment.  Trumbull, on Professor Lash's account (at 7), explained that legislation was necessary because the constitutional provision "provides no means for enforcing itself."  (Lash quotes a May 5, 1869 Columbus, Ohio newspaper report of a congressional debate of April 8, 1869; but the account is also set forth at Congressional Globe, 41st Congress, 1st Session 626 (April 8, 1869)).

The misuse of the Trumbull quotation is perhaps not quite as troubling as the misuse of Stevens's quotation, but Lash definitely presents Trumbull's views in a false light:  Trumbull's statement actually is directly contrary to Lash's thesis.  Quoted in full context, Trumbull was making clear that Section Three was already a self-executing requirement of constitutional law.   Legislation was not necessary in order to trigger a person's disqualification from office. That was accomplished directly by Section Three.

Thus, Trumbull said, the provision of the bill being debated

disqualifies nobody.  It is the fourteenth amendment that prevents a person from holding office.  It declares certain classes of persons ineligible to office, being those who having once taken an oath to support the Constitution of the United States, afterward went into rebellion against the Government of the United States.  (Congressional Globe, 41st Congress, 1st Sess. 626 (April 8, 1869 (emphasis added)).

Nonetheless, it was appropriate for Congress to add enforcement legislation, Trumbull said, because the Constitution's prohibition wasn't being obeyed everywhere:

But notwithstanding that constitutional provision we know that hundreds of men are holding office who are disqualified by the Constitution.  The Constitution provides no means for enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in the Constitution.  The Senator from Ohio says it provides for ever afterward disqualifying these persons from holding office.  That is nothing more than the Constitution of the United States has done.  That Constitution says that no person embraced within the classes specified shall hold any office.  This bill does no more.

Once again, this piece of legislative history does not remotely suggest that Section Three as a constitutional provision is not a self-executing legal command with the immediate force of law.  Quite the reverse. Trumbull was saying exactly what we argue in our article: Section Three's rule is legally automatic; and it is appropriate for Congress to add its enforcement power on its behalf. As we put it (at 22), "The Constitution is generally self-executing law, but still, somebody has to enforce it." Trumbull's point is no different.

In short, neither Stevens and Trumbull say what Lash portrays them as saying.   The positions Lash attributes to them are not the positions they took.  The statements Lash cites concerned other drafts, other provisions of law, or proposals for enforcement legislation that assumed that Section Three as adopted had already legally imposed constitutional disqualification from office.  This is poor, inaccurate, misleading "legislative history."  It is an illustration of precisely what should not be done when looking at legislative debates.

These misrepresentations matter: they can fool people who ought not be fooled.  Indeed, strikingly, some prominent scholars and advocates have carelessly picked up Lash's treatment of Stevens's and Trumbull's statement and adopted them in the service of the mistaken argument that Section three is not self-executing.

Disturbingly, Professor Michael McConnell, in a recent essay we have discussed before, seems to have adopted Lash's treatment of the legislative history (perhaps without checking it?) repeating and building on Lash's inaccurate portrayal.  McConnell writes that "the leading figures in the drafting and enforcement of the Fourteenth Amendment agreed with [Chief Justice Salmon P. Chase's opinion in Griffin's Case] that Section Three would require implementing legislation."  McConnell then offers Lash's out-of-context quotation of Stevens, concerning a different proposal, as if it were legislative history establishing that Section Three was not understood to be legally self-executing.  McConnell quotes Stevens this way: "'[Section Three] will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out.'"  McConnell then states that "Lyman Trumbull, Chairman of the Senate Judiciary Committee, likewise said that 'Some statute is plainly necessary to enforce the constitutional provision.'"

McConnell is obviously relying on Lash's account, and concludes without qualification or clarification that Section Three was understood to require implementing legislation.  But it is simply a factually wrong description of the legislative history to say that Stevens's view, or Trumbull's, was the same as the one Chief Justice Chase would later adopt in Griffin's Case.  McConnell appears to have swallowed Lash's account whole, being misled by it perhaps without carefully verifying it himself.

Equally disturbing is the repetition of the Lash account in an amicus brief filed on behalf of former attorneys general Meese, Mukasey, and Barr, professors Calabresi and Lawson, and two organizations.   Citing Lash, the brief begins (at 22) by noting that Representative John Bingham

expressly raised a concern that Section 3 would be unenforceable without additional action by Congress.  Lash, supra note 2, at 27. In response to Bingham's concern, one leading House Republican, Representative Thaddeus Stevens of Pennsylvania, agreed that there was a need for Congress to pass implementing legislation because Section 3 "will not execute itself." Cong. Globe, 39th Cong., 1st Sess. 2544 (1866). On the Senate side, Judiciary Committee Chairman Lyman Trumbull concurred, publicly explaining that it "provides no means for enforcing itself." Lash, supra note 2, at 7 & n.29 (quoting remarks of Sen. Trumbull as reported in The Crisis at 2 (Columbus, Ohio), May 5, 1869)).

The congressional record, moreover, does not show any Member of the House or Senate disagreeing with Stevens' acknowledgement that Section 3 is not self-executing.

The amicus brief thus advances the false view that Thaddeus Stevens thought the version of Section Three ultimately proposed was not self-executing, that Senator Trumbull believed this as well, and that there was apparently no disagreement about this in Congress.  (The brief's characterization of John Bingham's position is inaccurate for the same reason.)

* * *

All of this highlights the susceptibility of constitutional legislative history to manipulation, misrepresentation, and abuse.  While evidence from such history can indeed be probative, it must be researched with care and reported accurately and with candor.  Professor Lash's work fails on this score.

In our next essay / post, we take up several other problems with Professor Lash's use of legislative history.

Comments

[ObviouslyNotSpam]

GIGO, as they say.

[MyWag13]

Mental masturbation.

[Krayt]

We need reams of paper to discern whether one or two politically motivated states can knock a presidential candidate out of contention for the nation as a whole. How obvious and confidence-inspiring for The People!

The worst is it doesn’t really matter. You have no concensus as to insurrection, therefore you’ve failed.

If building confidence for The People that they aren’t being jerked around by partisans is your goal, which it is, because...

Which leads us back to reams of paperwork so you can do exactly that!

Third base!

[Drewski]

Yes, we should all listen to the guy who spells "consensus" wrong on purpose because a liberal told him he was regularly misspelling it. That's a person whose opinion is well-considered.

[David Nieporent]

We need reams of paper to discern whether one or two politically motivated states can knock a presidential candidate out of contention for the nation as a whole.

Unless your claim is that the decision by Colorado is binding on all 50 states, your framing makes no sense. "One or two politically motivated states" can only knock a presidential candidate out of contention for one or two states, not "for the nation as a whole." Since we don't have a popular vote, but an EC, Colorado's decision only affects Colorado's electoral votes, and Trump wasn't winning those anyway.

[Kazinski]

Trump is behind Biden in Colorado by 6 points according to 538, and Biden is only at 41%, so its not out of the question Trump could take Colorado.

Contrast that with Michigan, where Trump is up by 5 with far fewer undecided, with Trump at 47. I certainly wouldn’t count Biden out there.

In Michigan Biden would need the undecideds to break almost 3-1, in Colorado Trump would need the undecideds to go 2-1 in his favor.

[Absaroka]

"Colorado’s decision only affects Colorado’s electoral votes, and Trump wasn’t winning those anyway."

That seems true, for the state in question, today.

But it seems like the rules ought to be the same across the board, whether they help, hurt, or are neutral for any particular candidate/state/election.

[ObviouslyNotSpam]

So, no "caucuses", only (closed) primaries?

Interesting idea, but it's not in the Constitution.

[Stephen Lathrop]

With no intention of criticism for Professors Baude and Paulsen, who distinguish themselves among colleagues for their careful handling of history, the critique they offer is not sufficient. Their Kurt Lash problem is not merely that Lash has been an incompetent historian. Their problem is that Lash is not a professional historian, and as a lawyer has little to lose professionally by getting the history wrong on his way to an advocacy result he prefers.

Indeed, many among his like-minded—and similarly historically challenged—legal colleagues might applaud him for that advocacy if it works in a courtroom. That is why Lash’s careless historical takes snowballed so readily, and substantially poisoned the well of historical regard associated with this unusually important legal case.

By contrast, professional historians have everything at stake if they opine carelessly about a historical record so unambiguous as the one Baude describes. If originalism is ever to earn respect as a tool of legal analysis, it will have to get over its aversion to relying on professional historians for advice about topics so many lawyers are simply not qualified to research on their own.

[Noscitur a sociis]

Their Kurt Lash problem is not merely that Lash has been an incompetent historian. Their problem is that Lash is not a professional historian, and as a lawyer has little to lose professionally by getting the history wrong on his way to an advocacy result he prefers.

Well, no. The problem isn’t that he lacks the historical expertise to understand that his quotations don’t mean what he claims they mean: the problem is that the fuller context should make it blatantly obvious even to someone with no background in history whatsoever that they don’t mean what they say they mean. And there’s not really any meaningful difference between history and legal academia in terms of the consequences for this kind of disingenuousness. (Prof. Lash is a law professor but not, it appears, a practicing lawyer.)

[Stephen Lathrop]

Noscitur, you expect Lash to be dismissed from his faculty position, disgraced professionally, and forced into bartending?

[Absaroka]

Perhaps he will just get another job as a professor like Bellesiles?

[Purple Martin]

...or perhaps at the quite accommodating Hoover Institute? Though the once respected Heritage Foundation seems perhaps more likely.

[Kazinski]

Well I'd almost be willing to institute a bargain: law professors aren't allowed to do history, and history professors aren't allowed to do law.

But such a rule isn't workable, and its often hard to draw a line, its probably much better to have the two keeping an eye on each other.

[Stephen Lathrop]

Kazinski, it is nearly impossible to get the best history professors to even look at a legal question. It is similarly difficult to get the best lawyers to stop meddling with history.

[Krenn]

You have far more faith in professional historians than I do. By strict technical definition, I'm not even certain if "History" actually IS a profession.

The few "History" classes I took in college sounded a lot more like "idle musings by people who couldn't get accepted into lecturing programs covering literary criticism or math-free economics" than anything I would call "A rigorous licensed profession conforming to stated standards and with a board of review empowered to disqualify ne'er-do-wells after the fact".

[Stephen Lathrop]

Krenn, I am sorry your college served you so poorly. With regard to history, it left you not knowing what you are talking about.

But I can help. Go to Amazon and order Edmund Morgan's book: Inventing the People: The Rise of Popular Sovereignty in England and America. Read it, and afterward ask yourself if you have ever met anyone who learned enough in a lifetime to accomplish anything similar.

Then do a simple query to find out what else Morgan wrote. Try next Morgan's, American Slavery, American Freedom: The Ordeal of Colonial Virginia, which is similarly ambitious, encompassing, erudite, and accessible.

In fact, either of those books would have been the capstone of a lifetime for a brilliant scholar. Authorship of either would have justified an endowed chair at any of the nation's top tier universities.

Then take note of something neither of those works much suggests—that before Morgan did the research necessary to write those, he had already enjoyed a multi-decade career that left him the nation's leading scholar of Puritan history ever—with a flourishing sideline of important works touching on the founding era. He was also a brilliant and beloved teacher, by the way. And a professional leader among historical scholars' organizations.

That is enough. I do not wish to summarize what you should make of any of that. Nor tell you what you should think of your own remark about licensing the historical profession. If it is any comfort to you, you are in plentiful company on this blog. Probably more folks who read these comments would agree with you than agree with me.

[wolfefan]

Drink!

[mydisplayname]

Trumbull's quote (and related discussions, both in Congress and in the press) mentions "being those who having once taken an oath to support the Constitution of the United States, afterward went into rebellion against the Government of the United States." The words "rebellion" (not "insurrection") and "Government" (not merely "Congress") do have significance.

One element in favor of the argument made by Blackmun et al is that it acknowledges the disclarity which exists: it is unfortunate that many other arguments do not do so and therefore become nothing more than shamelessly self-promoting ramblings.

[ObviouslyNotSpam]

Is it your position that Trumbull was referring to a different Section 3?

[Social Justice is neither]

Will baud making perfectly clear why "every normal man must be tempted, at times, to spit on his hands, hoist the black flag, and begin slitting throats" continues to remain relevant today as it was when originally articulated. If you think you're convincing anyone beyond others as deluded as you are you are sorely mistaken and no amount of rhetorical stolen bases in your arguments are going to change that in your favor.

[ObviouslyNotSpam]

To a member of a cult, everyone else is just in a different cult. It is an understandable mistake.

[Mr. Bumble]

Wondering what the carbon footprint of all this BS about the 14th Amendment equals?

[Stephen Lathrop]

Our shared view is that such constitutional legislative history is potentially probative, second-best evidence of original, objective textual meaning.

Unless Baude/Paulsen entertain a notion that context is no part of textual objectivity, they have a problem there. Because with historical texts, gaining insight into original context is almost the entire textual meaning problem. And even period-relevant dictionaries cannot much help with that challenge.

With changing contexts, textual meanings become astoundingly protean. So the problem gets worse over time. Because no text created in a genuinely antique context arrives in the present with its original context intact. And that does not just apply to the present present. It applies alike during every intermediate present along the historical way.

Nor does that typically happen carefully, with renewed attention to original context in each respective present. It happens carelessly, on the basis of whatever present-minded context prevails at each stop. Then, after arriving in today's present with whatever adhering baggage a careless semi-historical review discloses, the typical originalism-destined text gets a final once-over. It gets reinterpreted in today's present-minded context, but likely with less attention to original context than ever before.

Among results-seeking lawyers uneducated in historical research, whatever present-minded context commands consensus then enters the court records—later to be published as originalist insight into textual meaning.

If that process is not amenable to root-and-branch revision, then the only intellectually respectable thing to do with it is to treat legalistic interpretations in present minded context as objective, gold-standard textual meaning. And to hell with original meaning.

I suppose only lawyers are qualified to say whether that outcome delivers sound basis for a legal-analytical method touted as, "originalism." If they say it is, then they ought to expect skepticism from a lot of folks better educated about methods to analyze the past than they are.

[Magister]

The fifth to last paragraph escaped from the preceding blockquote; the opposite problem from comments lately.

[Mike Hansberry]

Has the Constitution whispered to Baud that Trump engaged in insurrection?

Baud insists that in the quote below Trumbull is merely recognizing that the Constitution wasn't being obeyed everywhere and so he was seeking to address that problem.

"But notwithstanding that constitutional provision we know that hundreds of men are holding office who are disqualified by the Constitution. The Constitution provides no means for enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in the Constitution. "

However Baud's claim makes sense only when the disqualification is self-evident, as in those known to have fought for the confederacy in the civil war.

The Constitution does not know anything, it grants powers but does not say who shall determine which persons have engaged in insurrection. Nor does it tell us what constitutes an insurrection.

While we can be certain that a person fighting in an armed rebellion such as the civil war would fall under 14/3, it is not at all clear who would be disqualified under far less serious circumstances.

Does asking the VP to accept an alternate slate of electors meet the criteria for engaging in an insurrection? Maybe Baud knows, or thinks he does, but the Constitution did not tell him.

[Magister]

Does asking the VP to accept an alternate slate of electors meet the criteria for engaging in an insurrection?

No. It can be part of a seditious conspiracy, since it was aimed at preventing the legitimate president from taking office, but it lacks violence which is generally agreed is needed for insurrection.

Injuring over a hundred police, breaking into the Capitol and forcing the Vice President and members of Congress to evacuate, in an attempt to substitute fake electors, is an insurrection.

[Mike Hansberry]

"Injuring over a hundred police, breaking into the Capitol and forcing the Vice President and members of Congress to evacuate, in an attempt to substitute fake electors, is an insurrection."

Trump had no part in the riot or on breaking into the Capitol on Jan6. Also he did not force the VP to do anything.

[David Nieporent]

Trump had no part in the riot or on breaking into the Capitol on Jan6.

Sure. Just happened. His supporters coincidentally did what he wanted them to do and told them to do but not because he told them to.

[Mike Hansberry]

Trump told the crowd to knock down barriers and break into the capitol? You are confusing Trump with Ray Epps.

Some one once said: "The trouble with our Liberal friends is not that they're ignorant; it's just that they know so much that isn't so."

[Purple Martin]

Argue as you will about whether Jan 6th was an Insurrection, but it is inarguable that Trump is the single but-for cause of the events of Jan 6th.

On January 6th, 2021, President Donald Trump triggered a purposeful assault on the Capitol that threatened our representative democracy’s free and fair elections and thus, our constitutional republic. But the effort had begun months earlier, with Trump incessantly repeating his Big Lie — that only an unimaginably complex conspiracy of thousands of people coordinating massive fraud could block his “win in landslide.”

Trump tried but failed to convince the courts of the alternate facts necessary to his big lie. He tried but failed to intimidate officials of several states into reversing their states’ election results. He tried but failed to undermine the Justice Department, to enlist the help of the military, to persuade enough members of Congress to vote to overturn the election.

Failing in all other areas and facing the January 6th Congressional validation of his defeat, Donald Trump decided to use his final rally as the focus point and culmination of his years-long campaign of ruthless, relentless, denialist propaganda. Jan 6th began on Dec 19th when he tweeted at 1:42am, “Statistically impossible to have lost the 2020 Election... Big protest in D.C. on January 6th. Be there, will be wild!"...followed later that morning by "Now Republican politicians have to fight so that their great victory is not stolen. Don't be weak fools!"

December 19, 2020. 01:42:42
Peter Navarro releases 36-page report alleging election fraud 'more than sufficient' to swing victory to Trump [link removed]. A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!
_________
December 19, 2020. 09:41:03.
He didn't win the Election. He lost all 6 Swing States, by a lot. They then dumped hundreds of thousands of votes in each one, and got caught. Now Republican politicians have to fight so that their great victory is not stolen. Don't be weak fools! [link removed]

As a sitting president failing to gain the constitution’s mandated periodic reapproval of the people, Donald Trump tried to block a peaceful transfer of power, provoking a domestic insurrection among his followers to nullify an election he unambiguously lost. But-For Trump's purposeful actions, what we will forever remember as January 6th, would not have happened.

Our Constitution is meaningless if, without evidence and despite losing in every court, the loser of an election succeeds in simply refusing to accept the outcome. Yes, America proved resilient enough to survive such persistent Presidential perfidy — this time. But Trump tried, to the best of his abilities. That he failed gives him no credit.

[M L]

"legislative history is potentially probative, second-best evidence of original, objective textual meaning. "

I would say it is the first-best evidence.

The implication here is that the first-best evidence of textual meaning is ... the text itself. Sure, but that's a bit tautological. If you looking for "evidence" of what a text means, that seems to assume you can't tell based on the text itself and the inquiry is into evidence beyond that.

Generally agree with all there theory here though. (In the intro paragraphs, no opinion on the Section 3 stuff).

[Nige]

The Aristocrats!

[Krenn]

"
First, constitutional legislative history, or imputed "purposes" ostensibly found there, can never properly displace the actual textual meaning.
"

What, NEVER? what about Scrivener's errors, or clear evidence that the founders were drunk when they wrote a given clause?

For example, I'm pretty sure that the enabling legislation for the creation of West Virginia has pretty decisively won the day over the strict technical meaning of Article IV, Section III, which CLEARLY states that you are absolutely forbidden to create a new state if it's borders were previously located entirely inside the recgonized boundaries of an old state, not even if the old state agrees with doing so.

Likewise, If a Vice President is ever impeached, I'm ok with the US Senate issuing a rule stating that he does NOT get to preside over his own impeachment trial, no matter what the Constitution clearly says.

[Noscitur a sociis]

Whatever the merits of either of your interpretations, they have nothing to do with giving effect to discussions of purpose in legislative history over the plain meaning of the text.

[Krenn]

Wait, are we defining "Constitutional Legislative History" as "The history of legislatures debating modifications to the Constitution directly", or as "The history of legislatures debating and passing actual laws, which include implicit modifications or re-interpretations of what they THINK the Constitution already says?"

[Krayt]

Oh look, the House is about to vote on impeachment of the head of Homeland Security. The arguments sound like failure to do the job, or incompetency. But not treason, bribery, or high crimes and misdemeanors.

This is the world you built! When there were “investigations” for impeachment for Trump, some then started calling for impeachments of Democrats the first chance they got. Why?

It’s all shams.

Indeed, unlike other investigations, where you were roped into a fascade of disinterested support of rule of law by warrants and so on, some right here, with glee in their hearts said impeachment was purely political, so they had the honor of going after a political opponent.

This is your world you built. Don’t yell at me!

Look in the mirror and ask, “Why did I build it?”

And Republicans, you started this with Clinton, special prosecutor churning away wherever it lead, a fishing expidition, process crimes for “leverage”, as John Travolta in Battlefield Earth might say.

You know, all the shit you screamed about when you defended Trump.

[Krayt]

And if it gets to the Senate, it will fail as the Republicans don’t have a supermajority, or even majority.

Many of you can rattle off the talking points about the Senate that the power covetous have thought up for you to think, the Senate is undemocratic, the name literally means old men, formed on upper houses, designed to make changes most slowly of the political bodies and branches, insulated from the blowing winds of political passions, such passions the forte of the demagogue, putting the kibosh on such advances.

They get in your way.

“They get in my way.”

Oooooooh, I hate the Senate. Oooooooh! Grrrrrrr!

And now you see its wisdom on display, slowing stupidities of the winds of political passion. Now you understand.

[Sarcastr0]

This was something the 2024 GOP would have tried regardless. I get you want consequence; the GOP pegged their populist stunt-ometer a while ago.

Similarly, Trump's legal issues are based on stuff he did, not revenge for Hillary.

Your speculative telepathy in service of burnishing your outrage is not healthy, IMO.

Battlefield Earth is a good ref, though.

[Krayt]

Thanks. I don't want discussion to get in the way of a beer. God knows all these politicians go out for drinks right after they issue their orders for "the times of greatest political strife evah!"

[Krayt]

[PaulRandall]

It would be a striking paradox if
the President,
who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the
sole officer
capable of defying those laws with impunity."

Today's DC Court Immunity opinion