The Volokh Conspiracy
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Michael Rappaport on "the Originalist Disaster" of the Supreme Court's Ruling in Trump v. Colorado
A leading originalist legal scholar explains what the Court got wrong.
Michael Rappaport is one of the nation's most prominent originalist legal scholars, and author of such important works as Originalism and the Good Constitution (coauthored with John McGinnis). For those who care, he's also considerably to the right of me politically. In a recent post at the Originalism Blog, he skewers the Supreme Court's recent ruling in Trump v. Anderson, the Section 3 disqualification case:
The Supreme Court has decided by a 9-0 vote that former President Donald Trump cannot be kept off the ballot. In my view, the reasoning in the opinion is a disaster…. While I agree with the Court that Trump cannot be disqualified, it is not because of the nonoriginalist, made-up argument in the majority and concurring opinions. It is because section 3 applies to those who engage in an insurrection, not those who aid and assist a riot.
In my view, section 3 is self-enforcing. This follows pretty clearly from the constitutional text. Section 3 prohibits an oath-breaking insurrectionist from serving in certain offices. State officials are required by oath to respect this constitutional provision. That Congress is specifically given the authority to eliminate the bar by a two-thirds vote makes this even clearer. The section simply cannot be read as saying that only Congress or the federal government can enforce it.
The opinion relies upon spurious, non-textual reasoning. It says that the 14th Amendment restricts state autonomy and therefore it is unlikely that the state was allowed to enforce it against federal candidates. But the 14th Amendment restricts state autonomy only as to the rules it sets. For example, it prohibits states from violating the equal protection of the laws. But it does not prohibit the state from enforcing the equal protection clause. On the contrary, the state can pass a law that enforces the equal protection clause…..
The Supreme Court opinion says that nothing in the Constitution delegates to the states the power to disqualify federal candidates. But this is obviously mistaken under the original meaning. The Constitution says that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." This provision allocates to the states the power how to run their presidential elections. State legislatures could decide not to hold elections at all but could assign their electoral votes to the candidate of their choosing. States have broad authority to structure their presidential elections. While this authority might be subject to other constitutional limitations, the Court does not point to any such limitation here.
Some might question whether the Constitution could really have allowed individual states to disqualify people for insurrections, given how difficult it might be to define this term. But the Constitution did not leave this issue unaddressed. Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications. Even without such federal legislation, the Supreme Court has the authority to hear challenges to the state determinations, as it did in this case (although it is possible that such challenges might not lead to complete national uniformity as to section 3 questions….).
It is true that presidential elections have come to be viewed as national elections. This view has led many people to view the electoral college as inconsistent with such national elections and to argue for a national popular vote method instead. But that is not the system that the Constitution establishes. Instead, the Constitution grants significant authority to states over presidential elections. That is the original meaning.
I think Mike is right here on virtually all counts. I offered some similar criticisms of the Court's ruling here.
As Mike suggests, even if the Court had ruled against Trump on the self-execution issue, he could have potentially avoided disqualification on one of several other grounds, one of which is the argument that the January 6 attack was not an "insurrection," but merely some other kind of violence.
In my view, the the January 6 attack on the Capitol was pretty obviously an insurrection (see also here and here). The argument on the other side is so weak that Trump's lawyer Jonathan Mitchell chose not to advance it in his brief before the Supreme Court.
Mitchell did make the much stronger argument that Trump's involvement in the attack wasn't great enough to qualify as "engaging" in insurrection. I think that was the best argument on Trump's side of the case, though I also think the Colorado Supreme Court offered compelling reasons to reject it.
Be that as it may, Michael Rappaport is right about the federal Supreme Court's reliance on the claim that Section 3 isn't self-executing with respect to candidates for federal office. It is, as he puts it, "an unprincipled, pragmatic resolution" of the case, one that cannot be justified on originalist grounds.
I am less convinced he is right to suggest this outcome occurred because the Court's "self-interest was severely implicated." Perhaps the justices were driven by genuine, even if overblown, fears that letting states adjudicate Section 3 issues with respect to candidates for federal offices would lead to a chaotic "patchwork" of conflicting rulings. But if so, that's still a triumph of consequentialist "living constitution" reasoning over originalism.
