I think you're right, David, but as a lawyer I can't help but notice that the default opinion of many (not you, necessarily, but many) seems to be as follows:
Yes, it looks like the 14th Amendment, read properly, disqualifies Trump from being elected president. Legislative history shows members of Congress discussing the fact that it applies to the presidency. Arguments about the difference between the oath taken by the president and by Congressional members and executive officers are plainly silly, as the wording of the Article II oath covers supporting the Constitution. Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to "remove" a disability means the disability is there until removed. Trump engaged in insurrection, as the historical interpretations cover incitement as engagement. And it's not a political question. But . . .
But it can't be enforced, obviously, no matter what the law actually says, because that would make people Big Mad. And make the Court look bad. And so it's important not only Section 3 not be enforced, but that the idea of its enforcement be resoundingly rejected in a manner that appears non-partisan.
(I am not attributing this position to you because you did not really express a view on the merits. But many have.)
I just think that's a weird position: that yes, the law is clear, but it can't be enforced because, well, of course it can't! And yet a lot of smart people on both sides say this. Enough that I think it is fair to call it the default position of smart lawyers.
And so we know that the Court will twist themselves (and the law) into pretzels to do the "adult" thing that preserves their perceived institutional legitimacy and keeps people from being Big Mad and maybe rioting or worse. And if that means pretending the law is something other than it is, well, we all have to be adults!
I dissent. I think the law here is clear and should be applied, and the public reaction and the institutional concerns about the Court's legitimacy be damned.
I know my view will never win the day. But it should.
Excellent post. I agree. If the public doesn't want the bar of the 14th amendment any longer, then we can enact another amendment to repeal it, just like we did with prohibition.
I agree with your argument, and I hope that he is disqualified. However, if the SCOTUS rules for Trump, there is one big silver lining, in my opinion: The conservatives on the court will never again be able to make an "originalist" argument -- they would just be laughed at. I would celebrate the end of originalism.
By the way, Anderson won't be a good case for the "stability" project described above by David. The "fact" of Trump's participation in insurrection has already been decided by the lower court in Colorado and accepted by the Colorado Supreme Court. As described, the SCOTUS would have to revisit this "fact" which would be a major legal disruption -- a result that would be applauded by many appellants.
They don’t need to reach the insurrection issue, depending on the rationales for their ruling. Of the five possible arguments I mention, four don’t require ruling on the insurrection question. Some might be described as “technical” and hard to explain to nonlawyers—which in this case might be a feature, not a bug.
I wouldn't bet on that silver lining. After Dobbs, I would bet on much depending on originalist logic. If the opinions supporting Dobbs showed us anything, it was that the originalist "logic" of this majority was the originalist "logic" of the majority in Dred Scott v. Sandford, 60 U.S. 393 (1857). They determined some people were not part of “the people” (they were merely an “inferior class of beings”) merely because, for far too long, they “had been subjugated” by a “dominant” group. So, according to SCOTUS (now and then), victims of oppression and repression have “no rights or privileges but such as those who held the power and the Government might choose to grant them.”
The Dred Scott majority focused on the "original" Constitution and what the "original" people in power "originally" did in and under it to justify flouting a superseding amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." After 166 years to do much better, the Dobbs majority just didn't. After that performance, I wouldn't bet they would do better on anything.
Even as I think you are probably right about how all of this happens, and maybe keeping Trump on the ballot is simply the right thing to do, all of the "what about his voters" and "what about democracy" talk frustrates me.
Why? Because in 2000, the people spoke and they wanted Al Gore. In 2016, the people spoke and they wanted Hillary Clinton. And the Gore and Clinton voters received no special consideration when the election victory was given to their opponents.
Of course, it is not that simple. We have a system of rules (Constitution and laws) governing our elections, and according to the rules, GWB and Trump won, not the peoples' preferred candidate. And we are a nation of rules, laws, and a constitution. Sometimes the expresssed preferences of the people must give way to the rules of the system. It's fair.
Or, rather, it's fair unless the rules of the system disadvantage the Republican. Then, and only then, can we elevate concerns of democracy over our rules-based constitutional order. It is a double standard.
I am somewhat surprised by David Lat’s analysis. I practice in a jurisdiction in which courts often blend these considerations with legal interpretation, striking a balance between doctrinal analysis and the pragmatic outcomes of a ruling. However, I was under the impression that the US Supreme Court typically did not incorporate practical and consequentialist considerations into their decision-making process.
Interesting that learned counsel Ms. Habba is on TV pretending to be a constitutional scholar and opining on how the Court should rule (she has "read the case law", you know) in a manner that one reasonably could view as anything from trying to convey a message to the justices who Trump appointed to something even more insidious. I'd hazard the guess that 7 of the justices will not receive these messages favorably and that they are likely to be counterproductive.
Oh, no. You were TOTALLY clear. Apparently, I was unclear. Because the appropriate response was not at all this thoughtful.
My comment was channeling the spirit of Puck reborn. As in: if we had a Do Over button, wouldn’t it be utterly fascinating to see the total shit show that would ensue from a plurality opinion?
Earthquakes. Birds and snakes and aeroplanes. And lyrics none of us can sing.
About the end of the world.
Suggesting that when we set aside our spirit of gleeful malevolence to watch things burn, it suggests that maybe, just maybe, dodging this bullet is the right way for the SCOTUS to go. Even if our personal political opinions are: Lock Him Up.
We’re going down a pretty dark road. Sometimes political realism - even from the bench - especially when grappling with text and history that reasonable minds can disagree about...is a better choice than catching the bullet with the brain.
And lawyers, on the whole, need to stop prepping the populace for outrage. Any result is, all things considered, pretty reasonable here. Defend the damn court.
But, if we all want to go screaming off a cliff, I just want some advance notice so I can watch the light show from a tropical island.
Yeah, LinkedIn is where I do substantive. Substack is where I do satire that apparently people don’t track. X (fka Twitter) is where I get drunk & see how many actual human beings in Russian troll-farms I can stir into a frenzy with my shit-talking and, ideally, coax a bomb threat from if I’ve done it right. And then send along to my friends in intelligence in order to preen my feathers while they tell me I missed my calling for psyops bc I have an instinctive genius for driving Russians totally insane.
And for the record, my record for one night is: 45 Russian (humans) driven insane, three death threats (but alas only one semi-credible sounding bomb threat) and 30 of 45 Twitter bans. All without a single Twitter demerit for me (back when Twitter policed this stuff).
I’m super proud of that accomplishment. It’s an art form.
You suggest that the justices ought to be concerned with the reaction of 74 million voters who voted for Trump in 2020. What about the 81,282,916 voters who did not vote for him and have had to live through not only 6 Jan 2021 but former President Trump's continuing attempts to discredit us by claiming that our votes in the 2020 presidential election, or a significant number of them, were bogus?
It is obvious that former President Trump encouraged the events on 6 January in an attempt to retain the Office of the President, and its power. He is contemptuous of the majority, popular and electoral, that voted against him. He attempted a coup. It was violent. Former President Trump was responsible. It was a rally for him and the theme was that the election was rigged. He asserted that he was the rightful Chief Executive when all evidence proved that he lost the election. And he continues in this delusion and continues to admonish his faithful to follow him.
Are we worried that MAGA trolls and their cos-playing militias are prone to violence? Better to appease and mollify these folks to avoid civic unrest than to support those who understand former President Trump's behavior and actions as assaults on the constitutional order of our nation. This was the first time in our nation's history that a Chief Executive refused to abide by election results and was instrumental in fomenting a large movement against those results.
It seems to me that if SCOTUS is to don its "big-boy pants," as you suggest, it's time for some branch of government to stand up for the Constitution against the bullies, thugs and self-interested authoritarians who don't care a whit for any of it and have clearly demonstrated their disdain for it. The 14th Amendment was, as Mr. French points out in his recent essay "Fear of MAGA should not sway the Supreme Court," an "undemocratic" move to keep insurrectionists and those who are not faithful to the Constitution out of public office. It is a consequence for the offenders, certainly, but more so a protection of the constitutional order against further violence to it by those who don't recognize its obligations and responsibilities.
There's over 84 million of us who did not vote for The Donald in 2020 and have had to deal with the threats to our constitutional order from the MAGA mob ever since. It's time someone, with a big enough stick, spoke for us and stood up squarely for that constitutional order that the MAGA crowd so disdains.
I admit that I was leaning in your direction--let the people decide at the ballot box in 2024. But, we decided in 2020 at the ballot box and look where that went and where it is going now. It seems to me that Mr. French has hit that 16 penny framing nail squarely on the head in his essay. People who disdain our constitutional order and who act against it ought not to hold public office where supporting and defending that constitutional order is a duty and responsibility. Period.
I stopped at your first sentence—"ought." This is not an "ought" column; it is a "will" column.
As I say in the subheading, it is "predictive, not normative." And then for good measure, I note in the piece itself that how the case SHOULD be decided is "a question far above my pay grade as Unfrozen Caveman Legal Pundit," so "I instead offer predictions about how the Court WILL handle Anderson" (emphasis in the original).
For all you know, I might agree with your views on the "ought" part. I would note that my former Con Law professor Akhil Amar—who is absolutely brilliant, and with whom I often agree—thinks Trump should be disqualified. So does David French (link below), with whom I probably agree even more often than I agree with Amar.
But as I noted in responding to another comment, this is a question on which brilliant professors like Akhil Amar and Steve Calabresi disagree, and distinguished former judges like J. Michael Luttig and Michael McConnell disagree. I have the humility to realize that the world is not waiting for David Lat to weigh in.
Here is David French's column (but I believe the comment in his first paragraph about Trump being "off the Republican primary ballot in Colorado" is not correct, which I've raised with him—the Colorado Supreme Court wrote that "the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the [U.S.] Supreme Court"):
I don't even have a pay grade and had just read Mr. French's column. You are right, of course, that my response was off base, actually outside the ballpark, considering the substance of your essay which as you note was "predictive, not normative." I reacted to: "Some 74 million Americans voted for Trump in 2020. How will millions of them react to being told they can’t vote for him again?" Here I lost the context of your essay and ended up addressing an issue outside its scope. Believe me, I felt the sting of "For all you know, I might agree with your views on the 'ought' part." Forgive me.
Everyone should read the merits briefs in Trump v. Anderson, the Colorado case. Their discussion of post-Civil War history is fascinating and, ultimately, convincing. If the Court applies originalism honestly, it will conclude section 3 applies to Trump as an "officer" of the United States and it is self-executing. Then the Court will have to dive into the facts on whether Trump engaged in an "insurrection." If it honestly applies the usual rules for appellate review of a trial court's factual findings, it will have to conclude that Trump was an insurrectionist.
Note I use the word "honestly." I expect no intellectual or legal honesty from this Court. Dobbs showed us all that a majority of the Court will subvert history, logic, and fairness to get the result it wants. I suspect that they will find some procedural obstacle to the ruling on the merits. "Political question," perhaps? (Of course, this rule does not bind state courts.)
As for originalism, I have long thought this doctrine was a convenient way to hide judicial preferences. The Court grounds its analysis in reviewing the history of eras when only while men could vote, when women had no rights, and when slavery was favored. This history naturally gives the Court majority ample justification to reach the conclusions they seek as a matter of policy. Even then, they practice originalism in bad faith, relying on tidbits of history that support their side while ignoring contrary (and compelling) evidence.
I would think the officer controversy would be resolved by Art. I, § 8 and Art. VI. The president must be an officer. Otherwise, he would be above and beyond the powers of Congress and the Law of the Land. Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution” all Powers “vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, § 8. In relevant part, the “Constitution” and federal “Laws” that are "made in Pursuance" of the Constitution are “the supreme Law of the Land.” Art. VI.
In addition, at least three times, the Federalist Papers directly state that the president is an officer.
Federalist 69: “The President of the United States would be an officer elected by the people for FOUR years.”
Federalist 72: A “positive duration of considerable extent” in the Office of the President “is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits.”
Federalist 76: “They contend that the President ought solely to have been authorized to make the appointments under the federal government" without the Senate's consent, but "several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided."
Can we please at least stop saying that America has a democracy, and especially when this argument is abused to try to keep Trump on a ballot? The Founders understood and feared democracy as mob rule. They feared people like Trump, and they feared people who would support such a person. So, as a post about the dangers of careless speech addresses, American government clearly isn't a democracy, and it clearly wasn't designed to be. In a nutshell, one of the "Privileges and Immunities of Citizens" is that "[t]he United States" government must "guarantee" a "Republican Form of Government" in the federal and in all state government. Art. IV.
Consider the explanations and assurances of James Madison in Federalist 10 to persuade the people that the Constitution was necessary and proper to serve the purposes in the Preamble:
The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. . . .
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic . . . . The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for [one policy or another or] for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
So...I do have one critique of your article: You weight the survival of our democracy too heavily and by leaping to a democracy threatening split decision underweight the rare opportunity for the total freaking befuddlement and chaos that would result from a plurality opinion. It’s the end of the world and all that. That’s great! It starts with an earthquake. Mumbles lyrics. Mumbles lyrics.
Maybe I wasn’t clear, but my view is that our democracy needs a clear majority opinion, no matter which way this comes out:
“No matter what the justices decide [i.e., for or against Trump], they should reach a swift, conclusive [i.e., not a muddled plurality], universally binding [i.e., a chaos-avoiding] decision—because the fate of our democracy hangs in the balance.”
I wonder if you are reading into my piece a view on the merits? I am utterly agnostic to the merits—so please read my piece as if I secretly agree with you on the merits.
Since this is strictly a predictive piece, critiques should go to whether my predictions will or won’t turn out to be right—NOT to anything normative, like whether the world will be better or worse if the case is decided one way or the other (a matter on which, once again, I take no view).
Brilliant professors like Akhil Amar and Steve Calabresi disagree on the merits. Distinguished former judges like J. Michael Luttig and Michael McConnell disagree on the merits. I have the humility to realize that this is way beyond my level of competence, so I stay in my lane (which is predicting what the Court WILL do, not what it should do).
If folks disagree with my predictions on what the justices will decide, I welcome such disagreement. But I take no position on anything else.
I think you're right, David, but as a lawyer I can't help but notice that the default opinion of many (not you, necessarily, but many) seems to be as follows:
Yes, it looks like the 14th Amendment, read properly, disqualifies Trump from being elected president. Legislative history shows members of Congress discussing the fact that it applies to the presidency. Arguments about the difference between the oath taken by the president and by Congressional members and executive officers are plainly silly, as the wording of the Article II oath covers supporting the Constitution. Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to "remove" a disability means the disability is there until removed. Trump engaged in insurrection, as the historical interpretations cover incitement as engagement. And it's not a political question. But . . .
But it can't be enforced, obviously, no matter what the law actually says, because that would make people Big Mad. And make the Court look bad. And so it's important not only Section 3 not be enforced, but that the idea of its enforcement be resoundingly rejected in a manner that appears non-partisan.
(I am not attributing this position to you because you did not really express a view on the merits. But many have.)
I just think that's a weird position: that yes, the law is clear, but it can't be enforced because, well, of course it can't! And yet a lot of smart people on both sides say this. Enough that I think it is fair to call it the default position of smart lawyers.
And so we know that the Court will twist themselves (and the law) into pretzels to do the "adult" thing that preserves their perceived institutional legitimacy and keeps people from being Big Mad and maybe rioting or worse. And if that means pretending the law is something other than it is, well, we all have to be adults!
I dissent. I think the law here is clear and should be applied, and the public reaction and the institutional concerns about the Court's legitimacy be damned.
I know my view will never win the day. But it should.
Excellent post. I agree. If the public doesn't want the bar of the 14th amendment any longer, then we can enact another amendment to repeal it, just like we did with prohibition.
I agree with your argument, and I hope that he is disqualified. However, if the SCOTUS rules for Trump, there is one big silver lining, in my opinion: The conservatives on the court will never again be able to make an "originalist" argument -- they would just be laughed at. I would celebrate the end of originalism.
By the way, Anderson won't be a good case for the "stability" project described above by David. The "fact" of Trump's participation in insurrection has already been decided by the lower court in Colorado and accepted by the Colorado Supreme Court. As described, the SCOTUS would have to revisit this "fact" which would be a major legal disruption -- a result that would be applauded by many appellants.
They don’t need to reach the insurrection issue, depending on the rationales for their ruling. Of the five possible arguments I mention, four don’t require ruling on the insurrection question. Some might be described as “technical” and hard to explain to nonlawyers—which in this case might be a feature, not a bug.
I wouldn't bet on that silver lining. After Dobbs, I would bet on much depending on originalist logic. If the opinions supporting Dobbs showed us anything, it was that the originalist "logic" of this majority was the originalist "logic" of the majority in Dred Scott v. Sandford, 60 U.S. 393 (1857). They determined some people were not part of “the people” (they were merely an “inferior class of beings”) merely because, for far too long, they “had been subjugated” by a “dominant” group. So, according to SCOTUS (now and then), victims of oppression and repression have “no rights or privileges but such as those who held the power and the Government might choose to grant them.”
The Dred Scott majority focused on the "original" Constitution and what the "original" people in power "originally" did in and under it to justify flouting a superseding amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." After 166 years to do much better, the Dobbs majority just didn't. After that performance, I wouldn't bet they would do better on anything.
Even as I think you are probably right about how all of this happens, and maybe keeping Trump on the ballot is simply the right thing to do, all of the "what about his voters" and "what about democracy" talk frustrates me.
Why? Because in 2000, the people spoke and they wanted Al Gore. In 2016, the people spoke and they wanted Hillary Clinton. And the Gore and Clinton voters received no special consideration when the election victory was given to their opponents.
Of course, it is not that simple. We have a system of rules (Constitution and laws) governing our elections, and according to the rules, GWB and Trump won, not the peoples' preferred candidate. And we are a nation of rules, laws, and a constitution. Sometimes the expresssed preferences of the people must give way to the rules of the system. It's fair.
Or, rather, it's fair unless the rules of the system disadvantage the Republican. Then, and only then, can we elevate concerns of democracy over our rules-based constitutional order. It is a double standard.
These are also my thoughts. The right never gives a damn, why must the left always take the feelings of the other side into consideration.
Roberts may surprise and pull a Marshall move to assert the court’s power
I am somewhat surprised by David Lat’s analysis. I practice in a jurisdiction in which courts often blend these considerations with legal interpretation, striking a balance between doctrinal analysis and the pragmatic outcomes of a ruling. However, I was under the impression that the US Supreme Court typically did not incorporate practical and consequentialist considerations into their decision-making process.
Interesting that learned counsel Ms. Habba is on TV pretending to be a constitutional scholar and opining on how the Court should rule (she has "read the case law", you know) in a manner that one reasonably could view as anything from trying to convey a message to the justices who Trump appointed to something even more insidious. I'd hazard the guess that 7 of the justices will not receive these messages favorably and that they are likely to be counterproductive.
Oh, no. You were TOTALLY clear. Apparently, I was unclear. Because the appropriate response was not at all this thoughtful.
My comment was channeling the spirit of Puck reborn. As in: if we had a Do Over button, wouldn’t it be utterly fascinating to see the total shit show that would ensue from a plurality opinion?
Earthquakes. Birds and snakes and aeroplanes. And lyrics none of us can sing.
About the end of the world.
Suggesting that when we set aside our spirit of gleeful malevolence to watch things burn, it suggests that maybe, just maybe, dodging this bullet is the right way for the SCOTUS to go. Even if our personal political opinions are: Lock Him Up.
We’re going down a pretty dark road. Sometimes political realism - even from the bench - especially when grappling with text and history that reasonable minds can disagree about...is a better choice than catching the bullet with the brain.
And lawyers, on the whole, need to stop prepping the populace for outrage. Any result is, all things considered, pretty reasonable here. Defend the damn court.
But, if we all want to go screaming off a cliff, I just want some advance notice so I can watch the light show from a tropical island.
Ah, got it—thanks for clarifying!
Yeah, LinkedIn is where I do substantive. Substack is where I do satire that apparently people don’t track. X (fka Twitter) is where I get drunk & see how many actual human beings in Russian troll-farms I can stir into a frenzy with my shit-talking and, ideally, coax a bomb threat from if I’ve done it right. And then send along to my friends in intelligence in order to preen my feathers while they tell me I missed my calling for psyops bc I have an instinctive genius for driving Russians totally insane.
Now you know.
And for the record, my record for one night is: 45 Russian (humans) driven insane, three death threats (but alas only one semi-credible sounding bomb threat) and 30 of 45 Twitter bans. All without a single Twitter demerit for me (back when Twitter policed this stuff).
I’m super proud of that accomplishment. It’s an art form.
Biden and Congress would kill for a 44% approval rating
You suggest that the justices ought to be concerned with the reaction of 74 million voters who voted for Trump in 2020. What about the 81,282,916 voters who did not vote for him and have had to live through not only 6 Jan 2021 but former President Trump's continuing attempts to discredit us by claiming that our votes in the 2020 presidential election, or a significant number of them, were bogus?
It is obvious that former President Trump encouraged the events on 6 January in an attempt to retain the Office of the President, and its power. He is contemptuous of the majority, popular and electoral, that voted against him. He attempted a coup. It was violent. Former President Trump was responsible. It was a rally for him and the theme was that the election was rigged. He asserted that he was the rightful Chief Executive when all evidence proved that he lost the election. And he continues in this delusion and continues to admonish his faithful to follow him.
Are we worried that MAGA trolls and their cos-playing militias are prone to violence? Better to appease and mollify these folks to avoid civic unrest than to support those who understand former President Trump's behavior and actions as assaults on the constitutional order of our nation. This was the first time in our nation's history that a Chief Executive refused to abide by election results and was instrumental in fomenting a large movement against those results.
It seems to me that if SCOTUS is to don its "big-boy pants," as you suggest, it's time for some branch of government to stand up for the Constitution against the bullies, thugs and self-interested authoritarians who don't care a whit for any of it and have clearly demonstrated their disdain for it. The 14th Amendment was, as Mr. French points out in his recent essay "Fear of MAGA should not sway the Supreme Court," an "undemocratic" move to keep insurrectionists and those who are not faithful to the Constitution out of public office. It is a consequence for the offenders, certainly, but more so a protection of the constitutional order against further violence to it by those who don't recognize its obligations and responsibilities.
There's over 84 million of us who did not vote for The Donald in 2020 and have had to deal with the threats to our constitutional order from the MAGA mob ever since. It's time someone, with a big enough stick, spoke for us and stood up squarely for that constitutional order that the MAGA crowd so disdains.
I admit that I was leaning in your direction--let the people decide at the ballot box in 2024. But, we decided in 2020 at the ballot box and look where that went and where it is going now. It seems to me that Mr. French has hit that 16 penny framing nail squarely on the head in his essay. People who disdain our constitutional order and who act against it ought not to hold public office where supporting and defending that constitutional order is a duty and responsibility. Period.
I stopped at your first sentence—"ought." This is not an "ought" column; it is a "will" column.
As I say in the subheading, it is "predictive, not normative." And then for good measure, I note in the piece itself that how the case SHOULD be decided is "a question far above my pay grade as Unfrozen Caveman Legal Pundit," so "I instead offer predictions about how the Court WILL handle Anderson" (emphasis in the original).
For all you know, I might agree with your views on the "ought" part. I would note that my former Con Law professor Akhil Amar—who is absolutely brilliant, and with whom I often agree—thinks Trump should be disqualified. So does David French (link below), with whom I probably agree even more often than I agree with Amar.
But as I noted in responding to another comment, this is a question on which brilliant professors like Akhil Amar and Steve Calabresi disagree, and distinguished former judges like J. Michael Luttig and Michael McConnell disagree. I have the humility to realize that the world is not waiting for David Lat to weigh in.
Here is David French's column (but I believe the comment in his first paragraph about Trump being "off the Republican primary ballot in Colorado" is not correct, which I've raised with him—the Colorado Supreme Court wrote that "the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the [U.S.] Supreme Court"):
https://www.nytimes.com/2024/01/04/opinion/the-case-for-disqualifying-trump-is-strong.html
I don't even have a pay grade and had just read Mr. French's column. You are right, of course, that my response was off base, actually outside the ballpark, considering the substance of your essay which as you note was "predictive, not normative." I reacted to: "Some 74 million Americans voted for Trump in 2020. How will millions of them react to being told they can’t vote for him again?" Here I lost the context of your essay and ended up addressing an issue outside its scope. Believe me, I felt the sting of "For all you know, I might agree with your views on the 'ought' part." Forgive me.
Everyone should read the merits briefs in Trump v. Anderson, the Colorado case. Their discussion of post-Civil War history is fascinating and, ultimately, convincing. If the Court applies originalism honestly, it will conclude section 3 applies to Trump as an "officer" of the United States and it is self-executing. Then the Court will have to dive into the facts on whether Trump engaged in an "insurrection." If it honestly applies the usual rules for appellate review of a trial court's factual findings, it will have to conclude that Trump was an insurrectionist.
Note I use the word "honestly." I expect no intellectual or legal honesty from this Court. Dobbs showed us all that a majority of the Court will subvert history, logic, and fairness to get the result it wants. I suspect that they will find some procedural obstacle to the ruling on the merits. "Political question," perhaps? (Of course, this rule does not bind state courts.)
As for originalism, I have long thought this doctrine was a convenient way to hide judicial preferences. The Court grounds its analysis in reviewing the history of eras when only while men could vote, when women had no rights, and when slavery was favored. This history naturally gives the Court majority ample justification to reach the conclusions they seek as a matter of policy. Even then, they practice originalism in bad faith, relying on tidbits of history that support their side while ignoring contrary (and compelling) evidence.
For elaboration on how the Constitution and Hamilton debunked the myth that the president is not an officer of the U.S. please see, e.g., https://open.substack.com/pub/blackcollarcrime/p/the-constitution-and-hamilton-debunk?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcome=true
I would think the officer controversy would be resolved by Art. I, § 8 and Art. VI. The president must be an officer. Otherwise, he would be above and beyond the powers of Congress and the Law of the Land. Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution” all Powers “vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, § 8. In relevant part, the “Constitution” and federal “Laws” that are "made in Pursuance" of the Constitution are “the supreme Law of the Land.” Art. VI.
In addition, at least three times, the Federalist Papers directly state that the president is an officer.
Federalist 69: “The President of the United States would be an officer elected by the people for FOUR years.”
Federalist 72: A “positive duration of considerable extent” in the Office of the President “is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits.”
Federalist 76: “They contend that the President ought solely to have been authorized to make the appointments under the federal government" without the Senate's consent, but "several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided."
Can we please at least stop saying that America has a democracy, and especially when this argument is abused to try to keep Trump on a ballot? The Founders understood and feared democracy as mob rule. They feared people like Trump, and they feared people who would support such a person. So, as a post about the dangers of careless speech addresses, American government clearly isn't a democracy, and it clearly wasn't designed to be. In a nutshell, one of the "Privileges and Immunities of Citizens" is that "[t]he United States" government must "guarantee" a "Republican Form of Government" in the federal and in all state government. Art. IV.
https://open.substack.com/pub/blackcollarcrime/p/dangerously-careless-speech-about-f82?r=30ufvh&utm_campaign=post&utm_medium=web
Consider the explanations and assurances of James Madison in Federalist 10 to persuade the people that the Constitution was necessary and proper to serve the purposes in the Preamble:
The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. . . .
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic . . . . The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for [one policy or another or] for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
So...I do have one critique of your article: You weight the survival of our democracy too heavily and by leaping to a democracy threatening split decision underweight the rare opportunity for the total freaking befuddlement and chaos that would result from a plurality opinion. It’s the end of the world and all that. That’s great! It starts with an earthquake. Mumbles lyrics. Mumbles lyrics.
Maybe I wasn’t clear, but my view is that our democracy needs a clear majority opinion, no matter which way this comes out:
“No matter what the justices decide [i.e., for or against Trump], they should reach a swift, conclusive [i.e., not a muddled plurality], universally binding [i.e., a chaos-avoiding] decision—because the fate of our democracy hangs in the balance.”
I wonder if you are reading into my piece a view on the merits? I am utterly agnostic to the merits—so please read my piece as if I secretly agree with you on the merits.
Since this is strictly a predictive piece, critiques should go to whether my predictions will or won’t turn out to be right—NOT to anything normative, like whether the world will be better or worse if the case is decided one way or the other (a matter on which, once again, I take no view).
Brilliant professors like Akhil Amar and Steve Calabresi disagree on the merits. Distinguished former judges like J. Michael Luttig and Michael McConnell disagree on the merits. I have the humility to realize that this is way beyond my level of competence, so I stay in my lane (which is predicting what the Court WILL do, not what it should do).
If folks disagree with my predictions on what the justices will decide, I welcome such disagreement. But I take no position on anything else.