From State v. Price, decided Sept. 6 by the South Carolina Supreme Court but posted on Westlaw in just the last two weeks:
Price was convicted of murder in 2003 and sentenced to thirty-five years in prison…. The parties inform us Price began serving his sentence on December 23, 2003, and remained in prison until March 15, 2023. On that date, the Department of Corrections released Price pursuant to an order signed by now-retired circuit court judge L. Casey Manning on December 30, 2022.
There is no official record of the events that led to Judge Manning signing the order releasing Price from prison. It appears, however, that in February 2022, attorney J. Todd Rutherford—counsel for Price—contacted Solicitor Byron E. Gipson of the Fifth Judicial Circuit about reducing Price's sentence pursuant to section 17-25-65 of the South Carolina Code (2014). In mid-December 2022, Rutherford and Solicitor Gipson began exchanging emails with drafts of an order. According to Rutherford, he and Solicitor Gipson met privately with Judge Manning in late December in the judge's chambers. The Richland County "Case Management System Public Index" does not reflect that this meeting occurred, and there is no indication the meeting was recorded or transcribed. The victim's family was not notified of any of these events.
On December 30, Judge Manning signed two documents. The first document, entitled "ORDER REDUCING SENTENCE," provides,
This Matter comes before this Court by Defendant, through his undersigned attorney, J. Todd Rutherford, who petitions this Court to Reduce the Defendant's Sentence: The Court finds the following facts to exist in this case:
That the Defendant was convicted of Murder … on December 19, 2003 and came to the South Carolina Department of Corrections on December 23, 2003.
That the Defendant was sentenced to a sentence of thirty-five years in prison by The Honorable Reginald I. Lloyd and has served approximately nineteen years to date.
Upon motion of the Solicitor in accordance with S.C. Code Ann. § 17-25-65.
An account of Defendant's cooperation is contained in an addendum attached to this Order.
THEREFORE, IT IS ORDERED that the sentence be reduced from thirty-five years to nineteen years.
The second document states only, "Order sealed this 30th day of December of 2022," without identifying the "Order" being sealed.
It appears Judge Manning placed both documents in a sealed envelope, signed his name across the seal, and wrote the date "12-30-22" on the exterior of the envelope. At an unknown point in time, the envelope was delivered to the clerk. The envelope bears no indication it contained an order or that the contents of the envelope related to any particular case. Neither the envelope nor the documents inside it have ever been file-stamped nor bear any other indication either of them were filed with the clerk of court. As of April 19, 2023, the public index contained no entry for any order subsequent to the clerk of court receiving this Court's remittitur from our decision in Price's direct appeal on May 9, 2006.
The article claims that a prohibition on viewpoint-based removals of school library books is "settled law" announced by a "majority opinion." But that's not so.
The Dec. 7 article asks, "How Would This Supreme Court Rule on Book Banning?," and says this in paragraphs 4, 5, and 7 (out of 7) (emphasis added):
All this raises the question of what the current Supreme Court would do if it were to decide to take up one of the simmering book-ban cases. The key precedent on the issue is Island Trees School District v. Pico, from 1982. That case arose out of the removal of ten books from public middle-school and high-school libraries in a school district on Long Island, New York, by the local board of education. Though Island Trees is forty years old, the case concerns books addressing the same themes included in today's bans: Richard Wright's "Black Boy," Kurt Vonnegut's "Slaughterhouse-Five," Eldridge Cleaver's "Soul on Ice," and titles by Bernard Malamud and Alice Childress. The vice-president of the local board, a retired New York City police sergeant, had deemed the books obscene, "anti-American," and "just plain filthy," though he admitted that he hadn't read them. In fact, he heard about them at a meeting of an organization called Parents of New York United (P.O.N.Y.U.), a conservative group from Watkins Glen, in far-western New York, which had compiled a list of objectionable books and given it to the Long Island school-board members. P.O.N.Y.U. is a precursor of sorts for Moms for Liberty, the modern conservative book-banning group from Florida. (Indeed, Governor Reynolds spoke alongside other state Republican lawmakers at an event hosted by Moms for Liberty at a middle school in Des Moines just months before passing the Iowa law.)
The Island Trees case made its way to the Supreme Court after a district-court judge in Brooklyn, appointed by Ronald Reagan, ruled in favor of the school board, finding that students had no right to access the books in question. The Second Circuit Court of Appeals reversed that ruling, and the Supreme Court took up the subsequent appeal. There, in a majority decision written by Justice William Brennan, the Court invalidated the ban, echoing a prior ruling that students do not surrender their First Amendment rights "at the schoolhouse gate." But the over-all ruling is hardly a model of judicial clarity. The decision was 5–4, with seven separate written opinions, including four dissents. The majority noted that citizens, including minors, have a right to receive information and ideas. Nevertheless, the opinion is limited to the removal of books that are already in a library, and the Court makes explicit that it is not ruling that school libraries must acquire any particular books. Moreover, Chief Justice Warren Burger wrote a dissent in which he made the evergreen argument that parents should have "influence, if not control" over their children's education, equating parental control to "democracy in a microcosm." He also suggested that children who are denied books in school libraries are not prevented from obtaining them: they can simply go to a bookstore and buy them. Finally and, perhaps, ominously, Burger asserts that there is no constitutional requirement that schools maintain libraries at all. "The board," he wrote, "could wholly dispense with the school library, so far as the First Amendment is concerned." …
This Supreme Court has been protective of some speech, particularly religious speech. (See Justice Neil Gorsuch's opinions upholding a public-high-school football coach's right to hold group prayer on the fifty-yard line, and in favor of a wedding-Web-site designer who feared being forced to work for same-sex couples.) But it's not clear what the current Court would do when the desire to ban speech—or, in the question of book banning, to restrict access to certain ideas—is articulated as a parental right. We know, from the Dobbs decision, that the conservative Justices are not averse to overruling settled precedent, even with regard to a constitutional right. And what about the voices of fundamentalist religious groups who are certain to weigh in on behalf of bans? Will the Court grant deference to a religion-based desire to restrict the information that all public-school students can have access to? It may be that those who favor bans will find a more receptive bench now than they did four decades ago.
But I think this is mistaken, because there was no majority decision in Pico, no settled precedent on the subject, and no majority judgment that children have a right to receive information from a school library.
Justice Clarence Thomas has served for 32 years on the U.S. Supreme Court where he has been a consistent originalist who has led the Court to move in his direction on issues as varied as the Confrontation Clause; federalism; executive power; and the reining in of the administrative state. He has written hundreds, if not thousands, of opinions, and one thing is apparent from all of them that I have read. They all reflect Justice Thomas's authorial voice, and they do not reflect the authorial voice of his law clerks. Justice Thomas's brilliance, and commitment to originalism shine through in all of his opinions. He is more consistent, steady, and reliable than any other justice on the Supreme Court. He almost never follows precedent, but he always follows the original public meaning of the text of the Constitution. He is the very best justice out of 116 to have ever served on the U.S. Supreme Court better even than my old boss Justice Antonin Scalia. Justice Thomas not only talks about the importance of being an originalist; he practices originalism in every majority opinion, concurrence, or dissent that he writes. I do not always agree with Justice Thomas, but I always know where he stands and why.
I say this because neither legal academia nor the news industry seem to be aware that the very best justice, which the Supreme Court has ever had is currently serving on the bench. Left wing bias, and a disinclination to read Justice Thomas's opinions, has so skewed our public perception of him that no-one realizes what former Second Circuit Chief Judge Ralph Winter once told me is true: "Clarence Thomas is quite simply a genius." Moreover, Justice Thomas has such a clear body of rules, which he consistently follows in case after case over 32 years on the bench that it is as obvious as the day is long that he is incorruptible in every sense of that word. Justice Thomas would never "bend" the law to please Justice Scalia, his closest friend; his wife Ginni Thomas, who is active as she has every right to be in politics, or his good and close friend; the Koch brothers; Texas billionaire Harlan Crow; or anyone else. Clarence Thomas cannot be "bought." He is completely and utterly incorruptible as anyone who takes the time to read the opinions, which he produces prolifically can plainly see. I defy the many critics of Justice Thomas's ethics to point to a single outcome in which he wrote any opinion whatsoever or took any action whatsoever for a corrupt purpose. Read More
I won my campaign to get the Supreme Court to deny Special Counsel Jack Smith's petition for certiorari before judgement. I had argued in an amicus brief that Jack Smith lacked standing to represent the United States because his appointment as Special Counsel was unconstitutional. I therefore urged the Court to deny his petition, which it did.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Bound By Oath podcast: We head into a Pennsylvania Coal mine to unearth the origins of modern regulatory takings doctrine, resurface at Grand Central Terminal in New York City, and find ourselves in a bit of a fog.
New on the Short Circuit podcast: A pair of motions to suppress that shoot the moon.
Today, President Biden issued a proclamation granting pardons to all people who committed or were convicted of "simple marijuana possession" under federal and District of Columbia law. This is an admirable step in the right direction. But, as Reason's C.J. Ciaramella explains, it's only a modest expansion of a marijuana possession pardon initiative Biden undertook last year, when he pardoned all US citizens and permanent residents who had committed the offense of simple marijuana possession under the federal Controlled Substances Act and DC law up to that point.
As Ciaramella notes, the new proclamation expands pardons to certain offenders convicted of possession on federal lands. I would add that it also covers anyone who committed the relevant offenses in the fourteen months since Biden's previous pardons (which only covered people who had committed them up to early October of last year). Also, unlike last year's pardons, this year's also cover people who committed the DC offense of "attempted simple possession of marijuana," which is a distinct crime from actual possession. Not sure why this wasn't included in the October 2022 proclamation. Perhaps it was an oversight.
Like last year's marijuana pardons, this year's probably won't actually free anyone from prison. Virtually everyone serving a federal prison sentence for marijuana offenses is there for charges related to distribution. But the pardons will nonetheless benefit recipients in ways I summarized in my post about the previous round of pardons:
The fact that the pardons may not actually free any current prison inmates, doesn't mean they will have no effect. Biden rightly notes that the pardons will still help some people who may "be denied employment, housing, or educational opportunities as a result" of their past convictions. A criminal record for marijuana possession might also hurt a parent's chances in a child custody dispute. The pardons can address these issues by effectively wiping these convictions off the books.
Limited, as they are, Biden's marijuana possession pardons are commendable. But he could have done much more. A recent Gallup poll shows 70% public support for marijuana legalization, including even a majority of Republicans (55%). If Biden had made a push for simply abolishing federal laws banning possession and distribution of marijuana, he could probably have gotten it done, especially when Democrats had control of both houses of Congress during his first two years in office.
And, as Jacob Sullum has pointed out, Biden's distinction between possession and distribution makes little sense:
The moral logic of Biden's distinction between simple possession and other marijuana offenses is hard to follow. He says using marijuana should not be treated as a crime. If so, how can helping people use marijuana justify sending anyone to prison? And why should people convicted of assisting cannabis consumption be saddled with felony records for the rest of their lives?
There is similarly no justification for excluding offenders who aren't US citizens or permanent residents from the scope of the pardons. The justice of punishing people for marijuana possession doesn't depend on citizenship or residency status.
Biden today also pardoned 11 people serving disproportionately long sentences for various other drug offenses.
In my post on last year's pardons, I noted that Biden's use of the pardon power is far better than Trump's, which focused on cronies and political allies. Better than Trump in this area is a very low standard of comparison. But it's a sadly relevant one, as Trump looks likely to become the GOP nominee again.
Like many of my fellow liberals, I would love to live in a country where Americans had never elected Mr. Trump — let alone sided with him by the millions in his claims that he won an election he lost, and that he did nothing wrong afterward. But nobody lives in that America. For all the power the institution has arrogated, the Supreme Court cannot bring that fantasy into being. To bar Mr. Trump from the ballot now would be the wrong way to show him to the exits of the political system, after all these years of strife.
And from Compact:
The [Colorado Supreme Court] ruling sets up a dangerous new version of an all-too-familiar scenario: It transforms what ought to be a national referendum on the future of the country into a national spectacle of how judges will interpret a provision from its past. Doing so might for a moment save liberals—and, if the US Supreme Court goes along, conservatives, too—from their nonnegotiable responsibility to win power by winning elections. But it would do so by putting the very democracy such forces purport to want to save at greater risk and only postpones the need to rule by legitimate means, rather than through legal hijinks.
As with the Adam Unikowsky article, I pass this along because it strikes me as interesting and thoughtful, though there are facets of the analysis with which I may well disagree.
An interesting and detailed post, by a very knowledgeable lawyer. There are some parts that I'd likely approach differently (though I say this tentatively, not having focused on the issue myself in as much detailed as others have), but it seems much worth reading. I also hope to link in the coming days to material from others expressing other views [UPDATE: see, e.g., this post linking to two Samuel Moyn articles]. Here's an excerpt from Unikowsky's post (read the whole thing for the detailed analysis):
Now seems to be a good time to revisit my post from the long-ago era of September, in which I pegged the chances of the Supreme Court disqualifying Trump at 10%. In view of this recent development, I'll up the odds to 20%—still low, but not that low. 13-seed-beats-a-4-seed low. Totally within the realm of possibility.
Breaking that down, I'd give a 15% chance that the Supreme Court affirms the Colorado Supreme Court. I'd give an additional 5% chance that the Supreme Court vacates the judgment while leaving the door open to future Section 3 litigation, and then disqualifies Trump in a future case.
And while I'm throwing arbitrary probabilities at the wall, here's my take on the probabilities of how the Supreme Court will dispose of the Colorado case:
From yesterday's order by Chief Judge Nancy Rosenstengel (S.D. Ill.) in Robe Probe v. McGehee:
Two amorphous plaintiffs, Robe Probe John Doe, initiated this action on October 2, 2023, against various personnel of the Fourteenth Judicial Circuit Court of Illinois along with Judge John McGehee. {In the Complaint, Robe Probe (also called Judicial Felons Watch) describes itself as a national watch dog that polices judicial abuses, judicial fraud, judicial corruption, and judicial felonies and monitors corrupt state court judges nationwide.} In the Complaint, Plaintiffs make many serious and colorfully-worded allegations that Judge McGehee acted improperly while presiding over a state court action in Rock Island County, Illinois. Plaintiff John Doe identifies himself as the plaintiff in that underlying state court action.
As an initial matter, the Complaint contains accusations of criminal acts, corruption, bribery, and case fixing, paired with malicious language, derogatory slurs, and charged phrases like: "Muslim terrorist," "judicial thug," "judicial felon," "imbecile, ignorant, clueless crook," "ignorant fool," "crook scorpion lawyer," "perverted sadist defendant," "judicial clown," "mad hyena," "clueless pathetic creature," and "maniacal, out of control psychopath." Simply put, the language in the Complaint is inappropriate and will not be tolerated in this Court.
Aside from the fact that the Complaint contains outlandish, disrespectful, and intimidating allegations and language, it is clear to this Court that the real plaintiff standing behind "Robe Probe" and "John Doe" is Roger Shekar, a restricted filer in the Seventh Circuit {[a]lso known as Raj Shekar or Garan Shekar}.
After the Denver trial court held that the President was not an "Officer of the United States," I observed that the Blackman-Tillman position on Section 3 had moved from "off the wall" to "on the wall."
If there is a wall in the conservative movement, it is Fox News. Over the past two days, our work was cited and discussed in some depth on two Fox News programs.
And if there is ever a wall in the mainstream media, it is the New York Times. In the past two days, our work was cited in three articles.
Other scholars, notably Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, say that Section 3 does not cover Mr. Trump. There is, they wrote, "substantial evidence that the president is not an 'officer of the United States' for purposes of Section 3."
In 2021, two conservative legal scholars, Josh Blackman of the South Texas College of Law Houston and Seth Barrett Tillman of the National University of Ireland, Maynooth, published a law review article about the clause arguing on textualist and originalist grounds that a president does not count as an officer of the United States. Among other issues, they focused on language about "officers" in the original Constitution as ratified in 1788 — including language about oaths that can be read as distinguishing appointed executive branch officers from presidents, who are elected.
Others have argued the opposite, with the law professors Josh Blackman and Seth Barrett Tillman saying in a recent draft paper that they saw "no sound basis" for Mr. Baude's and Mr. Paulsen's conclusions.
We are grateful to the NYU Journal of Law & Liberty for publishing our article in late 2021. It's impossible to know in advance what pieces of scholarship will ever be relevant. Our article has been getting some attention of late.
There is much to say about what happened in Colorado. In due time. For now, I gave interviews on several radio stations (KPCC in Los Angeles, KOA in Denver, and KFI in Los Angeles.)
As readers of this blog know, I think Special Counsel Jack Smith was unconstitutionally appointed and that he lacks standing to petition the Supreme Court for certiorari before judgement. But what if four justices disagree and vote to grant certiorari? In that case, I think the Supreme Court should ask Special Counsel Smith to brief the question of whether he has standing and whether his appointment was constitutional?
Could an Attorney General appointed by President Trump appoint, as inferior officers, shadow U.S. Attorneys in Cook County, Illinois, or in New York State thus circumventing the requirement of Senate confirmation in two States which have two Democratic Senators?
Could an Attorney General appointed by President Trump appoint, as inferior officers, a Special Counsel to investigate the editorial writers of the New York Times or the Washington Post on the grounds that they are "vermin"?
The Supreme Court needs to know what the Biden Administration's position is on such questions. Moreover, it needs to know if Jack Smith's appointment is constitutional what limits, if any, there are on the Attorney General's power to circumvent Senate confirmation. As former Attorney General Ed Meese, Professor Gary Lawson, and I all argue in our amicus brief, we do not think that the Attorney General has any power at all to appoint inferior officers as powerful as is Jack Smith.
This case concerns several Texas abortion advocacy groups that seek to fund or support abortion for Texans in states where it remains legal….
Prior to the Supreme Court's opinion in Roe v. Wade, 410 U.S. 113 (1973), the Texas Penal Code contained Articles 1191, 1192, 1193, 1194, and 119625 (collectively, the "Pre-Roe Statutes"), under which abortion was criminalized….
Beyond the pre-Roe laws, Plaintiffs also challenge the constitutionality of SB 8. The law, which went into effect on September 1, 2021, authorizes private citizens to bring a civil action against any person who performs or "aids or abets" certain abortions in Texas. SB 8 provides that a suit may be brought against a person who "performs or induces an abortion in violation of this subchapter" or any person who "knowingly engages in conduct that aids or abets the performance or inducement of an abortion … if the abortion is performed or induced in violation of this subchapter…"
SB 8 delegates enforcement to private citizens and prohibits governmental officials from enforcing the law. A plaintiff under SB 8 need not have an individualized injury to bring suit. It provides a minimum fine of $10,000 for each abortion but provides no maximum penalty. SB8 purports to limit the effect of the judgments of other courts, including federal courts, by denying the defenses of nonmutual preclusion, claim preclusion (also known as res judicata), and limiting recovery of attorney's fees. SB 8 permits a private plaintiff to bring the case in his or her own county of domicile (if in Texas), regardless of whether that county has any connection to the events alleged or the relevant witnesses and prohibits any motion to transfer venue. The law was designed to avoid judicial review….
the Ninth Circuit rules, though expressly noting that "The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal."
From Elden v. Nirvana L.L.C., decided today by Judge Sandra Ikuta, joined by Judges Bridget Bade and Daniel Bress:
Under 18 U.S.C. § 2255 (2018) a person who, while a minor, was a victim of specified offenses, including child pornography offenses, could bring a civil suit for damages for personal injuries. The suit must be brought within ten years after the later of the violation or the injury "that forms the basis for the claim." {In 2022, Congress passed an amendment to 18 U.S.C. § 2255 (2018) that eliminated the statute of limitations for claims brought under § 2255. The parties agree that the 2022 version of the statute does not apply here.}
Spencer Elden alleges that he was the victim of a child pornography offense when (as a four-month-old baby) he was photographed naked in a pool for the cover of Nirvana's iconic album Nevermind. Now an adult, Elden argues that the continued use of this photo causes ongoing personal injuries. We hold that, because each republication of child pornography may constitute a new personal injury, Elden's complaint alleging republication of the album cover within the ten years preceding his action is not barred by the statute of limitations set forth in 18 U.S.C. § 2255(b)(1)(B) (2018)….
In 1987, Kurt Cobain and Krist Novoselic formed the grunge rock band "Nirvana." In September 1991, the band teamed up with a record label to produce what ultimately became the hit album Nevermind. Spencer Elden, who was then four months old, was photographed in a pool for the cover of Nevermind. The released album cover depicts a naked baby, with his penis visible, floating underwater toward a superimposed dollar bill on a fishhook.
The album cover art has become iconic and highly recognizable. It has been displayed in the Museum of Modern Art in New York and has been frequently referenced, imitated, and parodied. Commentators have opined that the naked infant reaching for a dollar symbolizes the ills of a capitalistic society.
recommends a Magistrate Judge, in a case brought over defendant student organization chair's claims that plaintiff had engaged in "sever[e], consisten[t], and widespread" misbehavior.
[UPDATE 2/2/2024: District Judge Leo Sorokin adopted the Report and Recommendation, and set the matter for trial, tentatively scheduled for May 6.]
From today's report and recommendation in Koppel v. Mosesby Chief Magistrate Judge Donald Cabell (D. Mass.):
This case arises from an incident involving two former students at the Massachusetts Institute of Technology …. [The parties], both graduate students at the time, belonged to a student organization known as the Student Information Processing Board ("SIPB"). SIPB leadership decided following certain events to request that Koppel refrain from participating any further in the group and Moses, acting as the organization's chair, sent two emails to other SIPB members communicating the organization's decision. Contending that the emails were false and defamatory, Koppel brought this action which, following prior litigation, asserts a single claim for defamation…. [I recommend that Moses's motion for summary judgment be denied.] …
[Koppel] focuses principally on two purportedly false statements that were present in both emails. In the first, Moses cites "the severity, consistency, and widespread nature of his interactions" in the context of "sexual harassment" …. Regarding the second, Moses writes that Koppel had "been given several opportunities to change his behavior and failed to do so" …. [E]ach statement conveys the same meaning: first, that Koppel engaged in the severe, consistent, and widespread sexual harassment or sexual misconduct; … and second, that he was asked to stop, or given opportunities to change, the behavior but failed to do so.
It is well established that "[w]hen a statement is substantially true, a minor inaccuracy will not support a defamation claim." Here, the court finds based on the record that a jury could find that the first statement, which characterized Koppel's sexual harassment or sexual misconduct related interactions as "sever[e], consisten[t], and widespread," was false when made.
One of the issues addressed in the recent Colorado Supreme Court decision holding that Donald Trump is disqualified from becoming president again under Section 3 of the Fourteenth Amendment is whether Section 3 applies to the presidency. A key reason to think it does apply is that ruling otherwise would lead to absurd results. As the Colorado ruling puts it, "President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land." That sure seems absurd to me! And longstanding precedent disfavors interpretations that lead to absurd results.
In a recent Slate article, Harvard law Prof. Larry Lessig argues that excluding the president from Section 3 is not absurd. But his reasoning ultimately reinforces the very point he is trying to dispute.
Lessig's main argument is that the presidency and vice presidency are unique because state officials barring presidential and VP candidates from the ballot create an "externality":
[T]here is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court's ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution. You see, with every other officer excluded under the provision, the state official or state court effecting that exclusion would feel the political costs of their decision alone. If the Missouri secretary of state decides that Josh Hawley was an insurrectionist — for both advancing a plainly illegal theory under which Congress could reverse the electoral votes of Pennsylvania, and for rallying the rioters on Jan. 6 with his now-infamous salute — then Missouri and its voters will bear the political costs of that decision alone. Its act would not impose a cost on other states. But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system.
Lessig ignores the fact that presidential candidates are far from the only ones whose exclusion has an effects beyond the borders of their state. The same applies to members of Congress. They vote on legislation that applies to the entire country. If Missouri excludes Hawley from the ballot, and a Democrat gets elected senator as a result (or a less MAGA Republican), that impacts the entire nation, not just one state. MAGA Republicans across the country might lose out, not just those in Missouri.
If you object to excluding insurrectionist candidates because doing so might create externalities like this, that's not an argument for exempting the president. It's an argument against having Section 3 at all.
It's true, of course, that partisan state officials could try to manipulate Section 3 to advantage their party. But that's why Section 3 exclusions - like other electoral qualification decisions - are subject to judicial review. If state officials try to bar someone who is not actually disqualified under Section 3, that candidate can sue to overturn their decision.
It's also worth emphasizing that the purpose of Section 3 is to prevent a different kind of externality from the type that concerns Lessig: having potentially dangerous former insurrectionists wield political power. If voters - perhaps due to ignorance or partisan bias - elect such people to public office, the harm these officials might do will affect not only those who voted for them, but the rest of the country as well. Insurrectionists in office could prove to be a menace to liberal democracy throughout the nation. The enactment of Section 3 was based on the assumption that preventing this kind of extremely dangerous externality was worth the cost, including other possible externalities that cut the opposite way.
Lessig's externality theory is at odds with the fundamental reason why Section 3 was enacted in the first place. Excluding the presidency from Section 3 on the basis of arguments that imply we shouldn't have Section 3 at all doesn't make any sense. It would, in fact, be absurd.
Lessig also argues the framers of the Amendment didn't need to worry about former insurrectionists becoming president because Section 3 ensures that presidential electors will be loyal, since it specifically bars insurrectionists from that position, thereby ensuring that "the people who would elect the president were not themselves insurrectionists." I explained why this argument (previously advanced by Kurt Lash) is fallacious here:
This argument ignores the possibility than an insurrectionist former president could still potentially hold other offices, such as being a member of Congress or serving as a member of the cabinet…
In addition, there was no reason to think that electors would necessarily abjure supporting former insurrectionists for the presidency. Since Section 3 only covers former government officials of various kinds, ex-Confederates who had not held public office previously (of which there were hundreds of thousands) could still become members of the Electoral College—and some actually did. Furthermore, by 1868 (as still today), electors were almost always little more than ciphers for their parties, who could be reliably expected to support the party's nominee no matter what. It is highly unlikely that committed partisan Democrat electors (most former Confederates backed the Democratic party in the years after the war) would forgo supporting a former Confederate insurrectionist for the presidency if he were the nominee of their party.
Given how the electoral college worked by the 1860s and the ability of many ex-Confederates to become electors, it is implausible to assume that the president was excluded from Section 3 on the theory that electoral college would prevent ex-insurrectionists from getting to the White House.
Lessig also contends (again, following Lash) that Section 3 was supposed to apply only to Civil War-era insurrectionists, and there was no danger of one of them becoming president. But the text of the amendment is general, and in no way limited to Civil War insurrectionists alone. Moreover, in the 1860s, the Democratic Party was one of the two major parties, and it drew much of its support from ex-Confederate white southerners. Absent Section 3, there was every reason to think such a person could potentially win the Democratic nomination for president. And any winner of a major-party nomination has at least some plausible chance of winning the general election.
The absurdity argument is far from the only reason why courts should conclude that the presidency is covered by Section 3. I think the "ordinary meaning" rule, emphasized in the Colorado Supreme Court ruling, is even more compelling. But the absurdity point is also strong. Indeed, the two are mutually reinforcing. An ordinary person reading Section 3 would be unlikely to interpret it in a way that leads to absurd results, especially if there is a plausible non-absurd alternative.
