Thursday, September 07, 2023

The Continuity of the Electoral and Judicial Means of Enforcing Section Three

Joseph Fishkin

Just to recap briefly where we are: Enrique Tarrio, the leader of the Proud Boys, was not physically present at the Capitol on January 6, 2021. But he clearly bore significant responsibility for causing the attack on the Capitol that day, and yesterday a federal judge sentenced him to 22 years in federal prison for seditious conspiracy. Couy Griffin, a minor figure in that same conspiracy, was at the Capitol that day (outside, anyway). A state court judge in New Mexico has removed him from his office as a county commissioner and barred him from holding future office on the ground that he engaged in insurrection in violation of Section Three of the Fourteenth Amendment (14.3). Will Baude and Michael Stokes Paulsen, two prominent law professors affiliated with the Federalist Society, argued recently from an originalist perspective—in the rare law review article to truly break through into mainstream media discussion—that Donald Trump similarly engaged in an insurrection by attempting to block the orderly transition of power, and that he too should therefore be barred under 14.3 from holding future federal office, including the presidency. A number of thoughtful scholars including Mark Graber and Gerard Magliocca on this very blog have made the case along with Baude and Paulson that in order to give force to 14.3, state and local decision-makers with the authority to decide who goes on the ballot should exclude Trump from the ballot. That would set up a court fight about the reach of 14.3 and whether Trump should be disqualified from office.

In that coming court fight, one side will argue that Trump is disqualified and should be removed from the ballot. The other side will argue, among other things, that the applicability of 14.3 to this situation is a question best left up to the voters themselves, rather than being decided by officials or courts. The phrase “political question” will be invoked. To many who want courts to enforce 14.3 against Donald Trump, the “leave it to the voters” argument will read as a deeply unsatisfying cop-out, transparently a way of saying, more or less, that the powerful disqualification clause in 14.3 has no real legal force or effect. And of course, if a court such as the Supreme Court rules in the end that the question should be up to the voters, I can predict right now with absolute certainty that Trump, along with many of his supporters and media cheerleaders, will frame that judicial outcome as a vindication and a judicial endorsement of the claim that there was no “insurrection” on January 6. Plenty of Americans on all sides of the question, whether applauding or lamenting such a judicial decision, will basically agree with that reading of the meaning of a court decision to decline to enforce 14.3.

They’re wrong, though. Both the people and the courts—all courts, not just the Supreme Court, and indeed nonjudicial public officials as well—have important roles to play in giving force and effect to the Constitution and thereby shaping its meaning over time.                                                                                  

The courts are obligated to take 14.3 seriously. But so are election officials, and so are the American people, including specifically in their role as voters. If the courts allow Donald Trump to stay on the ballot—and it is very possible they will—the voters remain obligated to make an independent judgment about not only the question of who they prefer as President, but also the prior constitutional question of whether this particular candidate, Donald Trump, is eligible to serve. I am under no illusion that this argument is going to sway most of Trump’s supporters. But it is still a political argument that could matter to some voters, just as Trump’s potential convictions at trial between now and the election could matter. The political force of the claim that voters should not vote for Trump because he is not constitutionally eligible to be president due to 14.3 depends on a few factors, all of which are highly subject to questions of framing and highly dependent on the state of our national discourse on these matters. Two obvious such factors are (1) To what extent do American voters understand ourselves to be obligated to implement the Constitution at all? (2) How exactly would we frame and understand a decision by, say, the Supreme Court that stops short of actually removing Trump from the ballot? Both of these questions open up larger conversations related to a current writing project of mine. But for now just look at it in the following way.

Consider two different models of the relationship between the Constitution and our politics. On one model, which for purposes of this blog post I’ll call the “separation” model, there’s a sharp dividing line between politics and constitutional law. The job of the voters and their representatives is to do politics and the job of the courts is to take care of the law, including constitutional law. The rest of us must accept what the courts say about constitutional matters because the Constitution is the Supreme Court’s domain. If part of the Constitution can’t be enforced in court, it’s a dead letter. It’s like dicta. All “real” constitutional arguments are arguments ultimately for courts. This model—as Willy Forbath and I explore in some detail in our book, relying in part on a sharp article by our former colleague Justin Driver—really came into its own among American liberals during the backlash against Brown and school desegregation (when liberals insisted that desegregation was not up to voters and politicians, but was a matter consigned exclusively to the courts). But conservatives never entirely accepted this, and it never really made a lot of sense. Descriptively, constitutional politics is going on all the time, shaping constitutional meaning and feeding back into what goes on in court. A different model, which here I’ll call the “continuity” model, begins with that observation. It also begins with a deep and rich historical pedigree: for most of American history, Americans did not believe politics and constitutional law were separate domains, nor did they believe that constitutional law was the exclusive domain of the courts. Instead constitutional questions were generally central to American politics—central to campaigns, party platforms, appeals to voters, and most likely voters’ own decision-making processes.

If you come into this 14.3 question with the separation model and its premises firmly in your head, as many do today, then the disqualification question is entirely about what the Supreme Court will do. How will the Court decide? Will it knock Trump off the ballot? The question feels like—as Josh Marshall put it slightly derisively on a podcast today—the “one neat trick” that might knock out Trump. From media steeped in the separation model, we can expect breathless courthouse-steps video hits anticipating a decision, and the decision will be framed in terms of, “Does the Supreme Court let Trump run, or not?” Either the lawsuit works, or it fails; either way, it settles the matter because that’s what courts do; and then the rest of us go back to normal politics.

But the separation model is descriptively wrong, and always has been. (Courts are constantly accused of settling major constitutional questions, but they rarely do! Some long complained that Roe “settled” the abortion question and took it “out” of politics; hopefully they’ve now shelved that argument.) Once we see the continuity between constitutional law in the courts and constitutional politics outside it, we can begin to appreciate how judges through their rulings influence and shape our politics—and how constitutional politics influences and shapes judging.

From this perspective, the most important thing that a court can offer when it comes to the 14.3 question is not a decision. It is a trial

Like the trials in the Justice Department lawsuit and the Georgia lawsuit about the effort to overturn the election in 2021, a disqualification proceeding is most important not for its outcome but for its power to reveal information and offer narratives to the American people. I have heard some hopeful reports that those pursuing a 14.3 litigation strategy have acted with this idea in mind, choosing jurisdictions that would be likely to allow a speedy and full trial on the question of Trump’s disqualification, and I hope those reports are true. Courts have no monopoly on constitutional interpretation but they do have something of a monopoly on the lawful issuance of subpoenas, and those can be helpful in bringing facts to light, which may then be persuasive to the American people.

It follows that a critical early test for the courts—possibly ultimately the most important test—is not whether they rule that officials can/should remove Trump from the ballot. Instead it is whether they intervene in response to interlocutory motions, taking the case away from the trial court or the canvassing board or whoever, in a way that short-circuits the fact-finding component of the judicial process and cuts down on its potential to feed back into politics outside the courts.

Meanwhile, there is also a critical early test for the media and speakers in our public discourse. Will they treat 14.3 as a “legal issue” where the only real decision-makers are courts and ultimately the Supreme Court? Or will they treat the question of whether Trump is disqualified under 14.3 as a question that all Americans, as citizens and as voters, must answer for ourselves? Will they even entertain the possibility that a voter who might otherwise lean toward Trump over Biden for whatever reason might nonetheless decide that Trump’s role in January 6th renders him ineligible to be president, and refuse to vote for Trump because of that? Again: empirically this may well turn out to be a very small proportion of voters. We live in very polarized times and in a splintered public sphere. But simply discussing the possibility that voters might deem Trump ineligible—and in some cases, refuse to vote for him for that reason—matters. It helps rekindle the core premises of the continuity model, in a time when the separation model is dangerously dominant. Pollsters should ask voters whether in their view Trump is constitutionally qualified to run for president, or disqualified by insurrection. And they should frame this question not as a prediction of what courts will do but as a genuine question of fact and law for the voters themselves to answer. Journalists should report the results, whatever they may be, back to the voters. And all of us should remember that in the long run, ceding all power to interpret the Constitution to the courts is not the way to keep a republic.

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