The Originalism Blog

If a Candidate Has Been Charged and Convicted of Insurrection in a Court of Law She’d Still Be Eligible for the Presidency, Believe it or NotAndrew Hyman

Suppose a candidate has been convicted under the federal insurrection statute, 28 USC 2383.*  Would she then be ineligible for the presidency under Section Three of the Fourteenth Amendment?  No, she would not be ineligible.

Perhaps a conviction like that ought to cause ineligibility under a better Constitution and better laws than we have now, but a bare conviction under 28 USC 2383 is not legally enough under current law to disqualify. Of course (if elected) she could then be impeached, convicted of insurrection, and disqualified by the U.S. Senate.

I assume for present purposes that the presidency is generally an “office, civil or military, under the United States,” as the Fourteenth Amendment puts it.  I also assume that 28 USC 2383 was modified in 1878 to conform with the Fourteenth Amendment, and does enforce the Fourteenth Amendment even though that statute was enacted years before the Fourteenth Amendment was adopted in 1868.**

The problem for proponents of disqualification sans impeachment, regarding the presidency, is that both the Disqualification Clause in Section Three of the Fourteenth amendment, as well as the Disqualification Clause in 28 USC 2383, have implied exceptions of which the congressional authors were very likely aware.  For example, one of those exceptions is the pardon power: if someone convicted of insurrection is pardoned by the president then nobody disputes that the disqualification disappears (unless the person has also been deemed an insurrectionist in civil rather than criminal proceedings).  Another exception, and the one most pertinent here, is that the Constitution’s list of qualifications for the presidency is explicit and exclusive in Article II, Section One, and cannot be modified by some later general provision that does not even mention the presidency:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

There’s nothing in there about insurrection, and the general language of the Fourteenth Amendment is not enough to amend the specific language of Article II, Section One (especially given that the Fourteenth Amendment is not shy about specifically describing various other government positions as being banned and/or triggering a ban). So, a federal jury in Guam or some other unusual jurisdiction could put a candidate in jail for insurrection, but cannot thereby stop any candidacy for president.

Nothing I’ve said here calls into question whether the President is subject to other clauses, like the Emoluments Clause or the Incompatibility Clause, because subjecting the president to those clauses does not necessarily conflict with or amend any other clause of the Constitution.  It should go without saying that a civil judgment or congressional finding would be no more successful than a criminal conviction in disqualifying an insurrectionist for the presidency, because the presidency is not a banned office under section three of the Fourteenth Amendment.  Of course, if elected, the candidate could then be impeached and disqualified, but the Constitution sets a high bar for that (two-thirds of the Senate), and the senators would be openly defying the result of a national election. 

* Yes, I’m alluding to ex-President Trump, who hasn’t been charged under the insurrection statute, and if he were charged then I doubt he would or should be found guilty, but imagine for argument’s sake that a presidential candidate is a convicted insurrectionist.  Incidentally, if Trump is elected in November, then there may well be another effort to disqualify him, either civilly or criminally.

** The pertinent 1862 statute said that a person convicted of insurrection “shall be forever incapable and disqualified to hold any office under the United States.”  The 1878 version then dropped the “forever” requirement, and instead said that a person convicted of insurrection “shall, moreover, be incapable of holding any office under the United States.”  The “forever” language that was cancelled in 1878 has been cancelled ever since.  It is very likely that the reason for the change in 1878 was to accommodate the Fourteenth Amendment’s language about removing disqualifications by supermajority. The possibility of a pardon was not the reason why the word “forever” was removed from the statute in 1878; if it had been the reason, then similar language (“forever thereafter incapable”) would likely have been removed in several other places in the very same 1878 volume of the revised statutes; also, by 1878, the courts had already explained that the pardon power was considered an automatic exception to general language in a law, so removing the word “forever” had no effect on pardons. See Carlisle v. United States, 83 U.S. 147, 153 (1873).

NOTE: this post supersedes an earlier post on this topic dated September 24 which has now been taken down.  

Lael Weinberger: The Origins of Church AutonomyMichael Ramsey

Lael Daniel Weinberger (Stanford Constitutional Law Center) has posted The Origins of Church Autonomy: Religious Liberty After Disestablishment (51 pages) on SSRN.  Here is the abstract:

The Supreme Court's most important cases on religious liberty in the last decade have featured religious institutions rather than individuals as the key actors. The Court has endorsed a "church autonomy" doctrine which protects religious institutions' ability to self-govern. In the name of church autonomy, the Court excepted religious institutions from what are apparently otherwise neutral and generally-applicable laws. Critics have argued that this is a novel move, out of step with the Court's precedents, and without deeper historical support-the critics claim that religious liberty in the early republic was not understood to protect church government from regulation by the civil government. Meanwhile, proponents of a robust church autonomy doctrine (including the Supreme Court) have traced the doctrine's antecedents to political theory and theology going back into the medieval period-but without devoting equal attention to the history of religious institutions in early America.

This article revisits the origins of church autonomy in American law. Rather than a late addition to the church-state conversation, church autonomy was one of the very first principles of church-state relations that American judges proclaimed in the aftermath of disestablishment. Most of the original American colonies had established churches. The United States Constitution prohibited any national establishment of religion, and the states with established churches gradually ended their legal establishments in the early republic. As judges in state courts wrestled with how to honor the principles of religious freedom and disestablishment in the following several decades, they gradually coalesced around a general principle to guide their decisions: matters of internal church governance should be respected by civil courts. In essence, the principle was church autonomy.

Moving from the descriptive to the normative, this paper argues that this history provides a solid foundation for church autonomy in American law. This historical foundation should matter to constitutional theorists of both originalist and common-law constitutionalist persuasions. The history also provides insight into some of the current questions about church autonomy doctrine. The early history of church autonomy presents alternative approaches to contemporary doctrine on issues of the doctrine's scope, jurisdictional character, and rationale.

My Further Thoughts on Justice Jackson, the Youngstown Case, and OriginalismMichael Ramsey

David Weisberg has this outstanding post on Justice Jackson's concurrence in the Youngstown case, responding to this post by Eric Segall.  I want to add two quick points.

First, to the extent Jackson was attacking originalism, his target was an especially unpersuasive version of originalism that is accepted by basically no modern originalists.  Here again is the famous "dreams of Pharaoh" quote from his concurrence: 

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. (343 US at 634-635, footnote omitted.)

No modern originalist thinks the inquiry is "what our forefathers ... would have envisioned had they foreseen modern conditions."   To the extent this is an attack on originalism (as Professor Segall contends), it's an attack on an outdated and discredited version.

(As an aside, Jackson was in any event wrong about Hamilton and Madison cancelling each other, at least as applied to the dispute in Youngstown.  Although Hamilton was likely the most pro-executive of the framers, I'm not aware of any comment by Hamilton that even remotely suggests that he would have thought the President could, on his own authority, direct seizure of private property within the United States. Hamilton and Madison disagreed on whether the British monarch's executive power was at least in part a template for the U.S. President's executive power, but the British monarch did not have power to seize private property within the realm.)

Second, Professor Segall disparages Justice Black's majority opinion in Youngstown as a "foolish formalism and rarely cited for anything of importance."  I disagree on two counts.  There's nothing foolish about Justice Black's opinion.  He makes a point that is fundamental to our constitutional structure: the President is not a lawmaker.  This proposition arises directly from the vesting clauses of Article I and Article II: the Congress has legislative (lawmaking) power and the President has executive (law execution) power.  That is the Constitution's single most important limitation on the power of the executive/President.  To be sure, the implications of that proposition are not always clear in particular cases. But that does not undermine that core truth of the proposition as a constitutional lodestar.  And in Youngstown the implications were in fact perfectly clear.  The President could not, on his own say-so, alter the property rights of people within the United States (as President Truman purported to do).

And it's not true that Black's opinion lacks force for today's courts. One of the most important modern cases for presidential power is Medellin v. Texas, in which (among other things) the George W. Bush administration claimed that a unilateral presidential policy to enforce a non-self-executing treaty could override a contrary state law.  Relying on Justice Black's opinion, the Court's majority rejected this claim of executive power: 

The President’s authority to act, as with the exercise of any governmental power, “must stem either from an act of Congress or from the Constitution itself.” [quoting Youngstown]. . . . The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. . . .'

The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution . . . . Once a treaty is ratified without provisions clearly according it domestic effect . . . whether the treaty will ever have such effect is governed by the fundamental constitutional principle that the power to make the necessary laws is in Congress; the power to execute in the President. . . . see U.S. Const., Art. I, § 1 (“All legislative Powers herein granted shall be vested in a  of the United States”). . . . Indeed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown, 343 U.S., at 587.

(For more on the centrality of Justice Black's Youngstown opinion to constitutional structure, see my article The Vesting Clauses in Foreign Affairs, 91 George Washington Law Review at 1518-1523)  The short of it is that, as the Supreme Court in Medellin recognized,  Justice Black identified a core constitutional principle that retains its force today, even though  Justice Jackson's eloquent concurrence remains the favorite of academic commentators.

Eric Segall on Justice Jackson and Originalism/TextualismDavid Weisberg

Prof. Eric Segall has written a post, “The Boys are Back: Section 3, Trump's Failed Disqualification, and the Irrelevancy of Originalism,” criticizing a new article by Profs. William Baude and Michael Stokes Paulsen in which they vehemently reject the Supreme Court’s unanimous decision—Trump v. Andersen (2024)—which itself rejected their now-famous contention that Section 3 of the 14th Amendment bars Donald Trump from the presidency. 

At the outset, I would agree with Prof. Segall that Trump v. Andersen was correctly decided, although my reasons (here) are entirely different from his.  And, like him, I do not accept original-public-meaning-originalism as a valid theory of constitutional interpretation (see, here).  Rather, I consider myself to be a constitutional textualist.  In my mind, both originalism and textualism require courts, with certain very narrow exceptions, to interpret the Constitution in accordance with the plain meaning of its terms.  (Originalism entertains a rebuttable presumption that constitutional texts have time-dated meanings different from current meanings, while textualism, in my understanding, entertains a rebuttable presumption that those texts have meanings identical to current meanings.) 

Baude and Paulsen argue that, unlike the Court’s opinions in other “great” cases they cite, the opinions in Trump v. Andersen ignored the plain original meaning of Section 3.  In contrast, Segall asserts: “The ‘great’ cases cited with approval by [Baude and Paulsen] were demonstrably much more concerned with consequences than the words on the page or ancient historical events.”  The contention that originalism is irrelevant because it relies on text and history would apply equally well (or ill) to textualism.  Therefore, I want to demonstrate the weakness of that contention.

Segall seeks confirmation in one of those “great” decisions: Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, which dealt with President Truman’s seizure of privately-owned steel mills to provide war materiel for the Korean conflict.  Segall notes that Justice Jackson wrote:

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. (343 US at 634-635, footnote omitted.)

Segall asserts: “A more direct and complete condemnation of originalism is hard to imagine.”  But it is a truism to observe, as Jackson did, that we can never know with any certainty how people who are now dead would have decided an issue that they never thought about when they were alive.  That truism is not in any way a condemnation of originalism or textualism.

Immediately after the passage Segall quotes, Jackson’s concurrence examines the structure of “a workable government” (343 US at 635) created by the text of the Constitution.  Jackson sets forth his famous three-part analysis of lawful presidential authority: it is maximal when the president’s own authority is added to congressional authorization of presidential action; in a middling state when the president acts on his or her own authority without the approval or disapproval of Congress; at its lowest ebb when the president’s actions are incompatible with the express or implied will of Congress.

Having set forth this three-part analytical framework, which follows logically from the text of Articles I and II, Jackson turns to the seizure of the steel mills.  He decides that the seizure falls within the third classification, because, although Congress enacted three statutes authorizing presidential seizure of private property, Pres. Truman had concededly not complied with any of those three statutes.  Therefore, the seizure was incompatible with the will of Congress.

Having made that determination, Jackson considers whether the seizure can nevertheless be sustained because it “is within [the president’s] domain and beyond control by Congress.”  (343 US at 640.)  To begin, Jackson rejects the argument that the first sentence of Article II grants to the president “all the executive powers of which this Government is capable.”  (Id.)  One reason for that rejection is that, if that argument is correct, there would have been no reason to delegate explicitly certain powers to the president: “[I]t is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.”  (343 US at 640-641.)  Jackson’s position, contrary to Segall, is here explicitly based on constitutional text, i.e., on Sections 2 and 3 of Article II.

Moreover, regarding the unlimited executive power claimed by Truman, Jackson says that “[t]he example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”  (343 US at 641.)  Thus, Jackson explicitly relies on “ancient historical events” that Segall denigrates as irrelevant to important, historic Court opinions.   

In rejecting the argument that the president’s power as commander in chief of the armed forces authorized the seizure, Jackson states:

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may, to some unknown extent, impinge upon even command functions. (343 US at 643-644, emphasis in original.)

Again, Jackson relies on explicit constitutional text in dismissing Truman’s contention.

Pres. Truman also invoked the presidential oath, which requires the president to “take Care that the Laws be faithfully executed[.]”  But Jackson contrasts this language with that of the Fifth Amendment, which prohibits the deprivation of property “without due process of law[.]”  (343 US at 646.)  Relying explicitly on the Amendment’s text, Jackson rejected Truman’s position.

Finally, Truman argued that the president must have inherent powers “to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.”  (Id.)  Justice Jackson rejected that argument as well:

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.… Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion … , they made no express provision for exercise of extraordinary authority because of a crisis.  I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so[.]  (343 US at 649-650, footnotes omitted.)

This is, again, an instance where Jackson relies explicitly on constitutional text—or, more precisely, the absence of constitutional text—to dispose of the president’s contention.

One final, and perhaps most important, point.  The very first paragraph of Jackson’s concurrence states:

The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic.  (343 US at 634.)

The warning against confusing “a power’s validity” with “the cause it is invoked to promote” strikes me as the precise opposite of Segall’s notion that Jackson’s concurrence minimizes the importance of text and history, while maximizing the importance of the consequences of a particular decision.  Prof. Segall is all about cause, while Justice Jackson focuses on validity grounded in text and history.

Gary Lawson: A Framework for Life Without ChevronMichael Ramsey

Gary Lawson (University of Florida Levin College of Law) has posted 'Then What?': A Framework for Life Without Chevron (60 Wake Forest L. Rev. __ (forthcoming 2025)) (50 pages) on SSRN.  Here is the abstract:

The Supreme Court overruled Chevron in Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Dep’t of Commerce. What happens next? What should happen next?

This essay does not try to answer either of those important questions. Rather, it seeks to provide a framework to promote careful thinking about those questions. Specifically, any predictive or prescriptive account of the law governing judicial review of federal agency legal interpretations needs to think carefully about four issues.

First, what does “deference” actually mean in any given context? “Deference” can mean anything from polite respect to absolute obeisance, and everything in between. The magnitude of deference given to agency legal interpretations was never spelled out clearly during the Chevron era, and it is not clear how the term was used by the Court in Loper Bright and Relentless. Whether and how deference remains appropriate after Chevron may depend on precisely what one means by “deference.”

Second, what could justify deference, however, defined, in specific contexts? There are numerous possible justifications for deference, ranging from treating deference as a helpful tool for decisional accuracy to using it as a cost-savings measure. Having a clear sense of how some or all of those reasons apply in various contexts is crucial to clear thinking, whether one is engaged in description, prediction, or prescription.

Third, what was the precise holding in Loper Bright and Relentless, and does that holding really matter in the real world? The Court told lower courts not to apply Chevron, but it said surprisingly little about what would take Chevron’s place. Bare case-specific Skidmore deference? Pre-1984 law, which included at least some categorical deference to agencies when legal interpretation was bound up with fact-finding? Categorical deference grounded in epistemic concerns? The Court did not say. More importantly, even if one can decode the Court’s prescription in Loper Bright and Relentless, it remains to be seen how lower courts will respond to it. If lower courts constructed the Chevron doctrine for reasons of judicial economy, as I think they did, telling them not to apply Chevron may simply encourage them to find alternative means to accomplish the same ends.

Fourth, assuming that Loper Bright and Relentless successfully reduce the level of deference afforded agency legal interpretations, will that simply encourage litigants and lower courts to push cases out of the “law” category and into the “policy” category, where deference still prevails? The case law has never drawn a sharp line between law and policy, and nothing in Loper Bright or Relentless helps draw such a line. Is there any way to draw that line in the modern world?

Again, the object of this essay is not to answer these questions. It is to provide an analytic framework to promote clear thinking about the present and future direction of administrative law. Hopefully, it at least points the way towards asking the right questions.

Hunter Mason: A Unified Departmentalist Theory of Constitutional InterpretationMichael Ramsey

T. Hunter Mason (Yale Law School) has posted As the Force of Their Reasoning May Deserve: A Unified Departmentalist Theory of Constitutional Interpretation (69 pages) on SSRN.  Here is the abstract:

The power to interpret law is the power to govern at will. Although the Constitution parcels out interpretive authority over its own meaning among three coequal branches of government, the prevailing public narrative of constitutional interpretation is that the judiciary, with the Supreme Court at its apex, is the ultimate expositor of our shared charter. In the crusade against judicial supremacy, this departmentalist view of constitutional interpretation has garnered considerable scholarly support. But the conversation remains largely academic. In this Article, I seek to justify and reignite the interpretive faculties of the nonjudicial branches of the federal government. I do so by propounding a holistic theory of departmental interpretation of the Constitution that endeavors to catalog the full range of constitutional review available to each branch and how these tactics can legitimately resist the interpretive claims of rival branches. Through myriad revisionary devices, the Constitution precludes unilateral interpretive control by any one branch except in certain specified arenas of constitutional interpretation. The persuasive force of an interpretive stance-rather than its sourcedetermines the extent to which the interpretation is operationalized in the business of government. Departmentalist literature has stopped short of offering a systematic theory of when and how each branch may weigh in on a question of constitutional meaning and what effect their interpretive activities have on the ground. By appreciating the totality of their own interpretive prerogatives, the political branches may begin to jealously-and effectively-rebut claims of judicial supremacy and vindicate the fundamental American maxim that the only body from which there is no appeal on questions of fundamental law is the People.

Chad Squitieri: "Appropriate" Appropriations Challenges after Community FinancialMichael Ramsey

Chad Squitieri (Catholic University Columbus School of Law) has posted "Appropriate" Appropriations Challenges after Community Financial (Cato S.Ct. Review) (28 pages) on SSRN.  Here is the abstract:

This Article, prepared for the Cato Supreme Court Review, offers an analysis of the of the Supreme Court's Appropriations Clause decision in CFPB v. Community Financial.  The Article argues that, although the Supreme Court's Appropriations Clause holding was correct, future appropriations challenges should focus on the Necessary and Proper Clause rather than the Appropriations Clause.

And from the introduction:

As this article will explain, the Supreme Court got it right in Community Financial. But here’s the kicker: That does not mean that Section 5497 is constitutional. As I’ve argued before and as the Supreme Court now agrees,9 it is not the Appropriations Clause that vests Congress with the authority to appropriate funds. It is other constitutional text that vests Congress with the authority to enact appropriations laws. Thus, future “appropriate” appropriations challenges (as I have termed them) should focus on the limitations imposed by that other constitutional text—and not the Appropriations Clause itself. Understanding as much provides crucial context concerning the Court’s careful effort in Community Financial to explain that its “narrow” holding was limited to the requirements of the Appropriations Clause alone. The Court explicitly declined to address “other constitutional checks on Congress’ authority to create and fund an administrative agency.”

Jack Balkin: We Are All Cafeteria Originalists Now (and We Always Have Been)Michael Ramsey

Jack M. Balkin (Yale Law School) has posted We Are All Cafeteria Originalists Now (and We Always Have Been) (William & Mary Bill of Rights Journal (forthcoming 2024)) (35 pages) on SSRN.  Here is the abstract:

Americans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be.

Cafeteria originalism is not a pathology or a falling away from a pure or correct version of constitutional interpretation. Instead, the persistence of cafeteria originalism in American constitutional culture reveals the deep rhetorical structure of American constitutional law. That is why non-originalists make originalist arguments all the time without thereby being converted to the originalist creed. And that is why conservative originalists have always had to leaven their theories with qualifications, exceptions, and epicycles. 

Cafeteria originalism is our law. The most plausible versions of interpretive theory — including the most plausible versions of originalism — make their peace with cafeteria originalism; indeed, they enjoy the smorgasbord. Cafeteria originalism has multiple uses in American legal thought. It offers a powerful rhetoric for legal reform. It clears the ground for new doctrinal development. And it helps people express their contemporary values through appeals to constitutional memory.

Interpretive theories lie downstream from constitutional culture. Within that culture, originalist arguments are simply one element of a larger collection of rhetorical strategies. This produces the effect called cafeteria originalism. From the standpoint of conservative originalism, this fact is a problem. But from the standpoint of American constitutional culture, it is perfectly normal. It is just what we do around here.

I mostly agree, as a descriptive matter.  But (again, mostly) what is being described is rhetoric, not reality.  "Cafeteria originalists" -- including, to be sure, many judges -- reach conclusions on other grounds and use originalism to justify conclusions already reached (when originalism is helpful to them).  The originalist project -- real originalism -- would use originalism as a decisional tool to determine outcomes, not as a rhetorical tool to justify outcomes. This may not be what judges or (especially) legal commentators generally now do, but the originalism project is to change that.

I think, though, that recognizing "cafeteria originalism" has consequences for some leading fundamental critiques of real originalism.  One critique is that determining original meaning is not really possible. The idea of "cafeteria originalism" suggests that this is not only a critique of originalism (that is, the aspiration to use original meaning as a decisional tool) but rather a critique of the broader American legal culture, which embraces the idea of determinate original meaning when it's helpful.  Perhaps it's a fair critique (though I think not) -- but in any event it's taking on much more than originalism; it's saying that our entire constitutional discourse is misconceived.  The same could be said -- only more so -- of a second critique: that original meaning should not be the touchstone of interpretation because the original founding was undemocratic, closed to women, minorities, etc.  Again, this isn't just a critique of originalism, but a critique of the broader legal culture that, under cafeteria originalism, appeals to original meaning some of the time.  Thus neither critique works to discredit originalism alone; the prevalence of "cafeteria originalism" shows that originalism is actually just a subset of a legal mainstream that finds original meaning at least sometimes determinate and at least sometimes rhetorically attractive.

Eric Segall on Baude & Paulsen on Trump v. AndersonMichael Ramsey

At Dorf on Law, Eric Segall: The Boys are Back: Section 3, Trump's Failed Disqualification, and the Irrelevancy of Originalism.  From the introduction:

The Boys of Originalism are back. Professors William Baude and Michael Stokes Paulsen have published a follow up to their law review article concluding that Section 3 of the 14th Amendment disqualifies Donald Trump from holding federal office. That article went viral (by law professor standards) and placed the potential disqualification of Trump in the center of the American legal landscape. 

They begin their new article [ed.: noted here] by quoting Justice Oliver Wendell Holmes, Jr. for the proposition that “great cases, like hard cases, make bad law.” They lament that the Supreme Court did not follow their version of text and history when the justices unanimously reversed the Colorado Supreme Court’s disqualification of Trump, and they dislike the justices'  holding that states cannot disqualify federal officials absent congressional authorization. The authors view Trump v. Anderson as a complete jurisprudential disaster.

Both Professors Baude and Paulsen are diehard originalists who believe that the Supreme Court should pay careful attention to text and history rather than policy and consequences when making constitutional law decisions. Their article reflects great disappointment with the current justices for refusing to rise to the occasion in this “great” case and issuing an important decision disqualifying Trump from holding federal office again.

The authors discuss many "great" cases that most of us would also consider "great" in the way the authors and Holmes use that term (not because they, you, or I necessarily agree with the results). These cases, however, as the authors recognize (mostly in footnotes), are either non-originalist or anti-originalist and turn on pragmatic concerns. Baude and Paulsen, quite consistently with their prior work, take issue with this type of decision-making. They also, however, admire the courage of at least some of those cases to, in their own words, "rise to the occasion."

And from the conclusion:

The authors' discussion of these "great" cases where they believe the Court "rose to the occasion" is mysterious, given the often express denial of originalism in many of those cases. But the Court almost never decides constitutional law cases, much less "great" ones, with reliance on text and history. 

If the authors' predominant concern was method, not result, they might have spent more time critiquing the non-originalist aspects of these cases rather than putting most of that analysis in short footnotes. Whatever their reasons, these “great” cases get in the way of Baude's career-long quixotic quest to convince us that Originalism is our Law. It is not and never has been, as the authors' own recitation of the cases conclusively demonstrates.

The history of constitutional law in this country is one of pragmatism and attention to consequences, sometimes hidden by easily condemnable formalist irrelevancies. The greatest judges of them all--Marshall, Holmes, Brandeis, Hand, Cardozo, Jackson, Brennan, and Posner--all knew this and usually acted accordingly. The "great" cases cited with approval by the authors were demonstrably much more concerned with consequences than the words on the page or ancient historical events. 

Originalism is not now nor has it even been our law, and the authors' complaint about Trump v. Anderson is not really about method--such complaints rarely are. They wanted a different result, not believing those of us who for explicitly prudential reasons did not want Trump disqualified. We might have been right or we might have been wrong but like all major constitutional cases, the battlefield is consequences, not method. That is the real lesson of the disqualification case and all the "great" cases cited by the authors as well as, ironically, their own empty nods to and defenses of originalism in their new article.

William Baude & Michael Stokes Paulsen: A Comment on Trump v. AndersonMichael Ramsey

William Baude (University of Chicago - Law School) & Michael Stokes Paulsen (University of St. Thomas School of Law) have posted Sweeping Section Three under the Rug: A Comment on Trump v. Anderson (138 Harvard Law Review (forthcoming 2025)) (43 pages) on SSRN.  Here is the abstract:

In Trump v. Anderson, the Supreme Court was confronted with the explosive question of whether former President Donald Trump was constitutionally disqualified from future office by Section Three of the Fourteenth Amendment. The Colorado Supreme Court had found that he was and consequently held him ineligible for the state’s primary ballot as a matter of state election law. Rarely have the stakes of a constitutional issue been so great. The institutional, political, and personal pressures on the justices presented by Trump v. Anderson were enormous, requiring the justices to rise to the demands of the occasion in a way perhaps unrivaled in the Court’s history.

They did not do so. Unlike some “great cases” of American history, where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the Court in Trump v. Anderson produced a flimsy decision in a high-stakes, high-profile, high-intensity case of great importance. Instead of confronting the issues squarely, the Court tried to sweep Section Three under the rug. The Court decided little, in the end, and what it did decide was still flagrantly wrong.

The Court held that states may not enforce Section Three’s disqualifications from office in the context of state election law concerning elections to federal office. That holding is legally indefensible. It fundamentally inverts the Constitution’s text, structure, and history concerning the power of states in presidential elections.  

Yet equally significant is what the Court did not decide. It did not reject the Colorado Supreme Court’s conclusion that Trump is disqualified from future office, under the standards of Section Three. It did not hold that the events culminating in the January 6 attack on the capitol fell short of the constitutional standard for an “insurrection.” It did not reject the Colorado Supreme Court’s conclusion that Trump had “engaged in” that insurrection. It did not question the Colorado courts’ factual findings concerning Trump’s conduct and intent. And–perhaps contrary to initial appearances, and contrary to the critique of the justices concurring in the judgment only–the Court did not hold that Section Three is legally inoperative without enforcement legislation by Congress. Nothing in the case contradicts the conclusions we reached in our prior scholarship, The Sweep and Force of Section Three, on any of these points.

The upshot is that Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification by two-thirds majorities of both houses. Nothing in Trump v. Anderson changes that legal reality. If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024, the day before the Court’s decision, he remained constitutionally ineligible on March 5, the day after its decision. And he remains ineligible today. A variety of potential avenues to enforce that disqualification remain. Sweeping Section Three under the rug thus may merely have postponed the day of ultimate constitutional reckoning.