E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Trump v. Anderson and the Collective-Action Constitution
Neil Siegel
I have posted on SSRN a new essay, entitled Narrow But Deep: The McCulloch Principle, Collective-Action Theory, and Section 3 Enforcement. The essay relies upon the structural theory of the United States Constitution developed in my recently published book,The Collective-Action Constitution(Oxford Univ. Press, 2024). The essay provides a substantially stronger rationale for the U.S. Supreme Court’s judgment inTrump v. Anderson, 144 S. Ct. 662 (2024), than the Court itself was able to offer.Instead of denying the undeniable—that Section 3 is self-executing—the essay argues that a structural principle of constitutional law originating in the Court’s second holding inMcCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), prohibits state executive officials and state courts from enforcing Section 3 against presidential candidates who at least enjoy substantial support within their own political party.The essay concludes that critics of the Court’s decision inTrump v. Andersoncan fairly object to much of the Court’s reasoning, but not to the outcome that it reached.
Here is the abstract:
In Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding former President Donald J. Trump from the Republican Party’s primary ballot in the state. The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment. Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court’s rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or the Court’s own precedent interpreting them. This Essay nonetheless argues that the Court’s judgment is justifiable on structural grounds identified in the Author’s recent book, The Collective-Action Constitution (2024). As envisioned in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Constitution’s federal structure bars states from enforcing Section 3 against candidates for President or Vice-President, at least if they enjoy substantial support within their own political party. More than two centuries ago, McCulloch articulated a structural principle that disables states from causing multistate collective-action problems by interfering with a function of the national governing process. That structural, collective-action principle extends in parallel fashion to actions by states that interfere excessively with a function of the national political process. The Presidency, along with the Vice-Presidency, is a uniquely national office because all states, and all voters in states, play a role in determining who will run for that office and ultimately occupy it. Just as “a part” may not tax “the whole” because the whole is not represented in the part, so a part may not make presidential eligibility decisions that significantly undermine the capacity of the whole to determine who will represent it in the White House. Legal scholars can justly criticize much of the Court’s reasoning in Trump v. Anderson, but not the result that it reached.