The Boys are Back: Section 3, Trump's Failed Disqualification, and the Irrelevancy of Originalism
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 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 consisently 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."
They somewhat surprisingly begin their discussion of great cases they respect with Youngstown Sheet & Tube Co., v. Sawyer, otherwise known as the Steel Seizure Case. Against the backdrop of the Korean War and a potential nation-wide steel strike, President Truman seized the steel mills. The Court decided in eight weeks that Truman could not constitutionally take over the plants.
There are numerous opinions in the case. The main one by Justice Black is foolish formalism and rarely cited for anything of importance (although Paulsen, at least, disagrees strongly with this characterization). But Justice Jackson’s concurring opinion, dividing Presidential power cases into three categories (express congressional permission, congressional prohibition, and congressional silence) has stood the test of time and is considered one of the most important precedents on Presidential power in our history.
But in the middle of that landmark and respected decision, Justice Jackson, one of our most admired justices, said this:
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.
A more direct and complete condemnation of originalism is hard to imagine.
The authors discuss other "great cases," which they define as ones of
immediate overwhelming interest and potentially serious consequence to the life of the nation and were decided under intense public scrutiny and often urgency—and yet they were decided well and soundly. Urgency, high consequence, and public attention at least sometimes combine to concentrate the judicial mind powerfully, to good and memorable effect.
The list of cases the authors put in this category includes Bush v. Gore, Dames & Moore v. Reagan, Cooper v. Aaron, and United States v. Nixon (among a few others). But as noted earlier, none of these cases employed originalism. They were based on prudential, immediate, and political concerns.
The Trump disqualification case, according to Baude and Paulsen, also ignored text and history and instead relied on prudential concerns about the potentially divisive effects on our political system of allowing states to disqualify a former President and GOP front runner. But that is how all the cases they admire were decided. Therefore, it is crucial to focus on their exact complaints about the disqualification case.
Here is the key paragraph:
Trump v. Anderson was not a faithful application of the original meaning of the Constitution. It does not adhere to the objective, original meaning of the constitutional text—the meaning the words and structure of the text would have had to reasonably informed readers of a legal text of this sort, in the time and legal setting in which it was enacted. It does not enforce the original meaning of Section Three. Instead, it invents—contrives—an escape hatch that flatly contradicts the text, structure, and historical intention of Article II’s assignment of power to states in presidential elections....
None of the opinions in Trump v. Anderson—none of the justices—delivered a coherent, principled, originalist rationale for the outcome in the case.
This is an odd criticism from these two famous originalists in a law review article extolling the virtues of numerous country-changing landmark decisions that contained virtually no and often absolutely no originalist analysis and relied on prudential concerns. Though the authors concede this throughout the piece, the facts are that these cases are rife with pragmatics and politics, not text and history.
Reading through the first few sections of the article, and the authors’ survey of non-originalist decisions, one might wonder what implications these important pluralist and pragmatic cases would have for constitutional theory. After all, if time after time after time the Court issues non-originalist or even anti-originalist opinions resolving our greatest cases, maybe originalism does little or no work when the stakes are the highest.
The authors are sophisticated law professors, so they anticipated this very critique. Their response gives away the originalism game:
The failure of purported originalists faithfully to follow originalist principles might demonstrate several things. But it does not refute originalism as a principled method of constitutional interpretation. To the contrary, original meaning supplies an objectively proper standard with which to evaluate the propriety of judicial decisions and opinions on legal questions and a yardstick by which to measure the fidelity of individual justices to such interpretive principles. That some judicial decisions flunk the test—that they fail the originalist standard—does not disprove the legitimacy of the method. Just the reverse: correct originalist principles supply the standard by which to criticize judicial decisions.
Professor Baude has been making this kind of claim for years, and it is simply not accurate. The most important cases in American history, cited by the authors, all refute the idea that when pressed with "great cases" that are time-sensitive, the justices turn to their best understandings of text and history.
The authors' insistence that originalism can be ignored, manipulated, and have little effect in real cases but still be “our law” is, at least to me, incomprehensible. We’ve had centuries to use originalism "correctly" and judges and justices rarely do.
And, in maybe the most important, landmark case of them all, Brown v. Board of Education, the Court also emphatically rejected originalism:
We cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
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.
One final note. The authors spend a number of pages discussing possible pragmatic/political motivations for a number of the justices (with appropriate disclaimers). As a legal realist, I found this analysis fascinating and maybe persuasive.
Since the authors felt free to speculate about the justices' private motivations, I feel a need to address the issue that both Baude and Paulsen are conservatives, probably Republicans (but I don't know), so why would they want Trump disqualified? I know exactly how they would answer this question: we did our research, stuck to text, history, and precedent, left policy concerns alone and went where the law took us.
Maybe. But if there were open legal issues involving the disqualification of a less odious (for principled conservatives and not just liberals) and potentially democracy-ending candidate, would they have simply followed the law where it led them? Maybe.
But they are academics, not justices. Give them coercive power over the entire country and life tenure, and do they disqualify someone with the politics of a John McCain or a Mitt Romney? I don't know the answer, but my guess is...well you know.
But that is ABSOLUTELY not a criticism of the authors but of a government institution that offers mostly unreviewable power for life to its members. Neither Baude nor Paulsen, both thoughtful and kind people, could possibly resist that siren song based on unclear text and uncertain history if they had the power. And that is exactly how the justices have operated since the very beginning, and so would just about anybody who serves on that “Court.”
Law barely matters in the cases Baude and Paulsen think are most important, so why would they reasonably think it would matter to the “great” question whether Trump should have been disqualified? And the best thing is you don’t have to believe me; just read their article.