The Volokh Conspiracy

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

Another quasi-jurisdictional objection that has been made to the state ballot access litigation in particular is the argument that it is too soon to decide whether Donald Trump is eligible to the Presidency. Though it is not always labeled this way, this amounts to a sort of "ripeness" argument – that the Section Three question is simply not ripe for decision at this stage and in this posture. The timing argument was made at length in an early amicus brief by Senator Steve Daines and the National Republican Senatorial Committee, and has since been picked up in part by Trump's merits brief.

The core of the argument is that Trump cannot be excluded from a state ballot (whether in the primary or general election): (A) because Section Three only prohibits "hold[ing] . . . office," not running for office, and (B) because Congress has the power, by a two-thirds vote of both houses, to remove the Section Three disability, it is possible that by the time of office-holding (or even later), Donald Trump might become eligible to hold office, even if he is currently ineligible to hold office because of having engaged in insurrection. (Indeed, Trump's reply brief argues (at 22-23) that the clock should be held open "between now and January 20, 2029"!)

But this objection misunderstands the nature of ballot access as well as the nature of Section Three.

To start off, it is true that Section Three does not of its own force regulate ballot access. It applies to "hold[ing] . . .  office," not running for office. But so what? As we discuss at length in our original manuscript, The Sweep and Force of Section Three, Section Three simply provides a rule of decision that governs anybody whose official duties call upon them to make decisions about eligibility. That can include election officials responsible for creating, distributing, and counting ballots, if state law so provides. And according to the Colorado Supreme Court, the authoritative expositor of Colorado law, Colorado's legislature has provided for the exclusion from the presidential primary ballot of those who are not eligible to serve as President. In other words, Section Three makes clear that Trump cannot hold the office of President. And state law provides that those who cannot hold the office of President should not be on the ballot as presidential candidates.

This state authority is well-established. Article II of the Constitution says that presidential electors shall be appointed "in such Manner as the Legislature thereof may direct." And cases have uncontroversially held, for example, that a state may lawfully a exclude a 27-year-old from the presidential primary ballot, and may lawfully exclude a non-natural-born citizen from the general presidential election ballot. Insurrectionists disqualified by Section Three are no different.

Proponents of this argument claim that Section Three is different because of the amnesty clause: "But Congress may by a vote of two-thirds of each House, remove such disability." This is alleged to make it uncertain whether Trump or anybody else covered by Section Three will still be disqualified in November or January. But what difference does it make? Trump, and others covered by Section Three are disqualified now. (Congress can chose to "remove such disability" only because that disability already exists – here and now.)

Similarly, in theory the 27-year-old and the non-natural-born citizen candidates might also become eligible, if Congress were to propose and the states were to ratify a constitutional amendment. But it has never been seriously suggested that we should not enforce these legal requirements now because they might change in the future. Indeed, in Trump's reply brief he concedes (in n.36) that these questions "obviously must be assessed under the Constitution as it currently exists." Under the Constitution as it currently exists, Trump is not eligible to "hold any office, civil or military, under the United States, or under any State." Now is as good a time as any to say so.

With respect, what seems to have given this argument "legs," in our view, is not so much its dubious legal merits as its supposed political expediency. The argument is seen to offer the Court an "off ramp" that would allow it to reverse the Colorado Supreme Court, ruling in favor of Trump, but without accepting any of his various (unacceptable) arguments about Section Three. Somehow, this is thought to be a politically preferable alternative to a straightforward affirmance or reversal on the merits.

Our specialty is law, not politics, but the political merits of this approach are hard for us to understand. If the Court rules that it is too soon to adjudicate Trump's qualifications for the office he seeks, when will it be time? In November, when most presidential election votes are cast? In December, when the electors meet? In January when the electoral votes are counted in joint session? On Inauguration Day?  Each of these options seems riskier and riskier.  Far from a convenient "off ramp" (or leisurely rest stop), it looks to us like a formula for a chain-reaction massive multi-car pileup. It would seem safer to us to keep one's eyes on the road.

Law students quickly learn that procrastinating their seminar papers until the day before the due date does not make them any easier to write. And it does nobody any favors for a major contested election to proceed under a cloud of uncertainty. Donald Trump wants to be the President of the United States in 2025. Others believe that Section Three of the Constitution forbids him from holding that office. There is no logical or legal reason not to determine and decide who is right – before the heat of the general election campaign, if possible – rather than waiting for some imagined future day when the questions will somehow become easier or go away.

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

Are questions of the proper legal interpretation and application of Section Three of the Fourteenth Amendment nonjusticiable "political questions" – that is, questions that federal courts lack legal power to decide?

The simple answer is no.

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

Earlier today we began discussing the use and misuse of constitutional legislative history in interpreting Section Three of the Fourteenth Amendment.  We first set out some important general principles about the proper role, and limitations, of the use of legislative history as potentially probative, second-best evidence of constitutional textual meaning.  Next, we discussed at length some serious mischaracterizations of portions of the legislative history of Section Three set forth in recent draft scholarship and essays by Professor Kurt Lash.  In particular, Lash misportrays statements by Representative Thaddeus Stevens and by Senator Lyman Trumbull as if they denied that Section Three of the Fourteenth Amendment is a self-executing constitutional command, when they did not. We also despaired that this mistaken account has been adopted by others. This highlights one major concern about the use of constitutional legislative history:  its capacity, if not done faithfully and carefully, to mislead and distort.  This should be a general caution about its use, and one that we think has proven unfortunately true in Lash's discussion of the self-execution issue.

Today we take up some problems with Lash's use of constitutional legislative history, even where accurately recounted, in the course of legal analysis of the Constitution's text. Here, our point is not that the excavation and presentation of the legislative history itself is flawed. Rather, the legal analysis and conclusions thought to flow from that legislative history are unsound.  Lash in our view makes several types of missteps in this regard, and the errors tend to compound one another.

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[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.

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