Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates Its Own Authority in Kennedy v. Bremerton School District

Andrew Koppelman

Today’s Supreme Court is so predisposed to find discrimination against religion that it declared it to be present in a case where the discriminator was obeying the Court’s own commands. In Kennedy v. Bremerton, the defendant school district and the lower federal courts had faithfully followed Supreme Court authority. The Court had, until then, consistently insisted that lower courts are bound by Supreme Court precedent. In Kennedy, the Court attacked the basis of its own authority.

The Relevance of Anti-Federalist Advocacy to Original Meaning

Andrew Coan

Damn the Torpedoes: Disqualifying Donald Trump

Mark Graber

The qualifications for officeholding are among the undemocratic, or at least antimajoritarian features of the Constitution of the United States.  Electoral College majorities are barred from selecting as president a person who is less than thirty-five years old, not born in the United States, not a citizen of the United States, not a resident of the United States for at least fourteen years, or, while or after holding various federal or state offices, participated in an insurrection or rebellion against the United States.  Good reason exists for thinking such qualifications a bad idea.  John Seary has an interesting book arguing that younger Americans ought to be constitutionally permitted to hold various offices.  Sandy Levinson and others think the constitutional bar on persons born abroad creates second-class citizens.  Perhaps electoral college majorities ought to decide whether former insurrectionists should hold office.  Section 3 of the Fourteenth Amendment may be a bad idea whose time has passed if that time ever came.  If popular majorities want to keep in office a police chief who urged the assassination of police officers or elect a president who as president fomented an insurrection in order to maintain office, the meaning of majoritarianism may be that they should have their way.  Holmes famously said his job was to lead his fellows to Hell if that was their chosen direction.

The zeitgeist among some authors seems to be that disqualifying Donald Trump under Section 3 is the bad idea, not that barring insurrectionists from office is a bad idea or that qualifications for the presidency are a bad idea.  This claim comes in two flavors.  The first is that disqualification decisions should be made by Congress and certainly not by local election judges or state secretaries of state.  Local decision-making risks minoritarian extremism and checkerboard solutions, where Trump is on the ballot in some states and not others.  The second is that MAGA forces must be defeated electorally. Disqualification will increase the possibility of a civil war or at least civil disruption in the United States initiated by violent members of the far right who perceive that their hero has been treated unfairly.

A congressional statute organizing disqualifying would be nice, but disqualification for insurrection is in legal principle no different from disqualification for being underage or not a citizen.  No one clamored for a federal statute preventing lawsuits disqualifying Barack Obama on the alleged ground that he was born in Kenya.  No one insists on a federal statute before younger Americans are disqualified.  American law at present permits checkerboard solutions, perhaps initiated by political extremists in state offices, respecting whether a candidate is constitutionally qualified for the presidency.  No one until recently complained, even though we could easily imagine a national controversy over whether a person had actually resided in the United States for fourteen years or, purely hypothetically, whether a candidate for the presidency was born in Kenya.

There is no law preventing a federal statute from being framed, debated, and passed immediately after our Representatives and Senators read this blog post (all members of Congress read Balkinization regularly).  That Congress is gridlocked is hardly a reason to mandate political actors outside of Congress stay their hand. One reason for constitutionalizing the principle that insurrectionists cannot hold office was the fear that Reconstruction Republicans might temporarily lose control of Congress and statutes mandating disqualification (and racial equality) would be repealed.  The framers may have assumed legislative primacy, but they did not think all other actors could do was complain when Congress dithered.  The Supreme Court can also swoop in and make a decision creating a rule for the entire country.  Steven Vladeck will be the first person to tell you that has been known to happen.

The MAGA crowd will be upset if Donald Trump is disqualified in some states.  Some may turn to violence.  They will be upset if Donald Trump is disqualified in all states by the procedure of your choosing.  Some may turn to violence.  They will be upset if Donald Trump loses a close election.  Etc.  They will be upset if Donald Trump loses an election that every expert agrees is not particularly close.  Etc., etc.  The MAGA crowd would be as upset if Donald Trump was disqualified because unconverted evidence demonstrated, lo and behold, that he was born in Kenya.

We are dealing with the kid in the schoolyard who threw a temper tantrum and yelled “Cheater” whenever he or she lost.  The kid yelled "Cheater" when the umpire called a close pitch a strike and when the final score was 15-1.  Finding rules that appeased that kid was pointless.  The best you could do was apply the rules you thought fair and prepare to deal with the temper tantrum when the kid lost.  

That MAGA must be defeated politically in the long run does not debar any short-term solution.  Trump will throw variations on the same temper-tantrum if he is disqualified as an insurrectionist in some states, disqualified as an insurrectionist in all states, disqualifying for being born in Kenya, or loses the presidential election from anywhere between one and four billion votes.  If you think as a matter of constitutional law or principle people who participate in an insurrection against the government should not hold government office and that Donald Trump participated in an insurrection against the government, you should endorse the Section 3 process and be prepared for the fall out that will occur no matter how MAGA forces are defeated.

Procrastination Isn't Always Wisdom

Gerard N. Magliocca

I want to respond to an argument, exemplified by Ross Douthat's recent column in The New York Times, against using Section Three to disqualify Trump. (Andrew Coan offered some thoughtful comments on that argument in a post the other day). The argument is a practical one that says exclusion is dangerous in a democracy. It's wiser to just let the voters decide. David French has a column responding that this would be "appeasing" Trump's supporters. I don't like that loaded term. I have a different take.

The "let the voters decide" argument is basically just a sophisticated version of kicking the can. Kicking the can is sometimes a wise solution. Maybe things will just work themselves out. Let's take a wait-and-see posture when the action being contemplated is broad. Thus, I understand the skepticism that some people have about disqualification, especially if they have only just started thinking about that option.

The problem is that we've tried kicking the can on Trump's misconduct more than once. And things have gotten worse, not better. Let's go back to February 2020. An argument for a Senate acquittal in the first impeachment trial was "Let the voters decide." And that made sense. It was an election year. The case that Trump committed a high crime and misdemeanor was not so clear. (Indeed, I said in a post here that I was not convinced that he should be convicted.) The voters did decide, but then Trump refused to accept that verdict and (allegedly) committed crimes and (in my view) engaged in insurrection to stay in power. 

Now let's revisit February 2021. An argument for acquittal in the second Trump impeachment was "Let the voters decide." He was out of office, so the only point of an impeachment was to disqualify him from serving again. But the next election was three years away. Was it really necessary to bar him from office? Maybe he wouldn't run again. Maybe the voters wouldn't support him. Let's kick the can again. This did not work either. Instead, we face the dilemma of a strong presidential candidate under multiple criminal indictments, which creates an unprecedented and volatile situation heading into next year.

Now many of the same people want to kick the can again. Don't apply Section Three to Trump. Let the voters decide. What could go wrong? At this point, this is just magical thinking. The third time is not the charm. 

UPDATE: I've added links to the Douthat and French columns. They are excellent presentations of the opposing views on this issue.     

The Flawed Arguments for Privileging Federalist over Anti-Federalist Advocacy as Evidence of Original Meaning

Andrew Coan

The Original Meaning of "Federalism"

Andrew Coan

The Politics of Disqualifying Trump

Andrew Coan

Ross Douthat has waded into the Section Three conversation, siding with Eric Segall against his fellow conservatives Will Baude and Michael Stokes Paulsen. In particular, Douthat worries that "not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card." 

I don't agree with all of Douthat's analysis, but I share his core concern, which I expressed in a post on January 12, 2021:

What about the actual politics of invoking Section Three? One possibility, perhaps the most likely, is that a legal bar on future federal office-holding would prevent a third Trump campaign from ever getting off the ground (assuming he has not already taken care of this himself). But there is another, darker possibility. If Trump wants to run again and retains--or regains--the loyalty of his base, such a bar would effectively foreclose a large and highly motivated segment of the American public from pursuing its goals through electoral politics. That is a momentous and highly fraught step for any democracy to take. It is perilously close to banning one of the two major political parties.  

Douthat is strongly skeptical of attempts to invoke Section Three. My own view is more equivocal. Section Three is unpredictable and dangerous, but so are the alternatives. As my original post concluded:

The broader point is a familiar one. No legal strategy, however apparently decisive, is capable of dissolving the dangers inherent in our deep national divide. The only possible solutions are political, though law is a powerful, if double-edged, tool for reshaping our politics. Section Three is one more example. This is not an argument against its invocation, merely for proceeding with our eyes open.

I have changed my mind about many things in the past two years, but there is not much I would change about this post if I were writing it today.

Not Too Hot, Not Too Cold, and Not At All

Gerard N. Magliocca

One objection to applying Section Three of the Fourteenth Amendment to Donald Trump is that democracy requires that he be permitted to run. I have a draft paper responding to this argument, though I will be revising that in light of Trump's quadruple indictment and the Baude and Paulsen paper. But let me tackle one aspects of that now.

There is no limiting principle to the democracy argument against Section Three. Suppose that Trump was doing poorly in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's no harm in letting him run. Democracy will resolve the issue." Now suppose that he was doing well in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's a harm in not letting him run. Vox populi, Vox Dei." Where, then, is the sweet spot in between where he should be disqualified? The answer is that there is none and there cannot be one under the strong form of the democracy principle.

Some people are candid about this. Alan Dershowitz, for example, has an essay arguing that we should ignore Section Three. There are constitutional precedents for this. They are just bad ones that are almost all about the Reconstruction Amendments. I'm quite unimpressed with the claim that we should not apply the text as written because too many people will be upset. We've seen that tragedy before. 

UPDATE: Here is my latest essay on Section Three, in which I explain why an appropriate state Secretary of State would be acting in a non-partisan way by declaring Trump ineligible now.

Public-Meaning Originalism and Speaker Sincerity

Andrew Coan

The Definition of an Insurrection

Gerard N. Magliocca

One comment that people make about Section Three is that an insurrection only involves an attempt to overthrow the government or widespread resistance to government authority. But that's not true, If you look at what people in the ante-bellum era described as insurrections, events that fell well short of that standard (and well short of what happened on January 6th) were called insurrections.

Let me give a simple example. The federal criminal insurrection statute does not define that term. But there are state criminal insurrection statues that do. Here is Iowa's.

An insurrection is three or more persons acting in concert and using physical violence against persons or property, with the purpose of interfering with, disrupting, or destroying the government of the state or any subdivision thereof, or to prevent any executive, legislative, or judicial officer or body from performing its lawful function.  

Does January 6th meet this standard? Of course it does. Now that doesn't mean that Iowa's law is the constitutional standard. But Iowa's more modest standard fits well within ante-bellum discourse.

More to come . . .

Interpreting Ratification

Andrew Coan

(coauthored by David S. Schwartz)

The Sleeping Giant is Awake

Gerard N. Magliocca

In 1867, Senator Charles Sumner described the Guarantee Clause as "a sleeping giant" awakened by the Civil War that gave Congress the power to erase slavery's stain. In 2023, Section Three of the Fourteenth Amendment is the sleeping giant awakened by the January 6th insurrection (and by Will Baude and Michael Stokes Paulsen) that gives courts the power to erase Donald Trump's stain. 

I am very grateful for the excellent new article by Professors Baude and Paulsen and for the incredible response to their work. (Over 28,000 downloads by last count!) Until recently, only a hanful of scholars took Section Three and its application to Trump seriously. (Mark Graber, Bruce Ackerman, Josh Blackman, Seth Barrett Tillman, and myself). Five is great for a dinner party, but not for considering a vital constitutional question. We need a lot more discussion to help the Supreme Court and the country reach the best decision possible. And make no mistake--this issue will be at the Court soon and must be decided on the merits to avoid electoral chaos.

I am also confident that Trump will have a fair opportunity to contest the claim that he is ineligible to serve in office. I say that because I testified in the Section Three eligibility hearing for Representative Marjorie Taylor-Greene last year. She also testified, both sides were represented by able counsel, and the ALJ issued a thoughtful opinion concluding that she was eligible. His ruling was affirmed on appeal. The sky did not fall by letting state officials carry out their constitutional duties.

I'll have more to say about Baude/Paulsen and some of the responses to their paper next week.     

UPDATE: I’ve tweaked this post since the first draft, in part because the download figure keeps shooting up. 

Baude and Paulsen on Section Three of the Fourteenth Amendment

Gerard N. Magliocca

The paper is here. The New York Times article is here. Here is the Abstract:

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

UPDATE: My papers on Section Three are here and here.

The Burdens of Judgment

Andrew Coan

Frederick Douglass as Constitutionalist

JB

Sandy Levinson and I have posted a draft of our latest essay, Frederick Douglass as Constitutionalist, on SSRN. Here is the abstract:

Frederick Douglass is an important symbol in American constitutional memory, cited in U.S. Supreme Court opinions and invoked by people with very different political ideologies. In this essay, we explore Douglass's constitutional philosophy by contrasting his views about fidelity to the U.S. Constitution and the rule of law with those of Abraham Lincoln and those of John Brown, who led the 1859 raid on Harper's Ferry, Virginia to incite an armed revolt against slavery. Douglass's views about the U.S. Constitution changed over the years, and were often in tension with each other, but he was at best an ambivalent constitutionalist. In many respects his views about the Constitution were closer to those of John Brown, who believed that violence was necessary to redeem constitutional government, than those of Abraham Lincoln, who advocated obedience to law in his Springfield Lyceum speech and who accepted slavery as the price of constitutional government in his First Inaugural address. Although politicians and judges today may prefer a sanitized version of Frederick Douglass, his actual views about how faithful one should be to an unjust constitution raise important questions for us today.

Can the Voters Pardon Donald Trump?

Gerard N. Magliocca

A narrative is emerging that the criminal cases against Donald Trump mean that the next election will be about whether the voters want to pardon him. David French had an op-ed in The New York Times last week in which he said that 2024 is a choice between Trump and the rule of law. 

This narrative is wrong. Trump cannot be pardoned by the voters unless he is eligible to be elected. The Section Three/14th Amendment issue must be resolved in his favor (or Congress must give him amnesty) before the voters can render a judgment. In a sense, an organic two-step process is developing to test the application of the criminal law to a major presidential candidate.

We are facing these difficult choices in part because prosecutors are exercising their discretion foolishly. The Senate's failure to convict in the second impeachment trial and Congress's failure to provide for a swift resolution of the Section Three issue created a vacuum for the criminal law to fill. But that is not an excuse. The pending cases should not have been brought. If Trump is convicted and then elected, people will stop saying Pyhrric victory and start saying Smithic victory.  

UPDATE: Some readers asked me to say more about why the criminal cases are mistaken. Since there are many cases and I have many reasons, I'll need another post for that. For now, though, consider this famous explanation of why prosecuting a former president is a bad idea.