Conservative scholars’ interpretation of 14th Amendment helps show what’s wrong with originalism.
A law review article claiming that Donald Trump is automatically disqualified from holding elected office is getting attention in large part because it was written by two conservative, originalist law professors, William Baude and Michael Stokes Paulsen. Baude and Paulsen argue that Trump should be excluded from ballots for giving aid to an “insurrection or rebellion” in violation of Section 3 of the 14th Amendment.
To condense their main points, when the 14th Amendment was drafted after the Civil War, the original meaning of Section 3 was that anyone who previously held public office and then rebelled against the U.S. government should be automatically barred from office unless two-thirds of Congress made an exception. This constitutional provision is law and requires no further action by Congress to implement it, the article says.
The Supreme Court as a whole has never directly interpreted Section 3. But in 1869, the chief justice of the United States, Salmon P. Chase, issued a circuit court opinion in Griffin’s Case interpreting Section 3. In it, Chase held that Section 3 was not automatically enforceable — what lawyers call “self-enforcing” — but rather could only go into effect if Congress passed a law directing its implementation. Such legislation is not today in existence.
But nearly every important judicial opinion reflects legal and political judgments. The whole idea of precedent is that it stays in place until the courts reject it.
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