Too Much Abstraction in Constitutional Argument

While we await the opinion in Trump v. Anderson, I wanted to make one observation about some of the questions posed from the bench about the purpose of the Fourteenth Amendment.

Suppose I was arguing on behalf of states-rights with respect to a provision in the 1787 Constitution. Justice X then says: "Counsel--The purpose of the Constitution was to augment federal power and curb state power in response to the failures of the Articles of Confederation. Your argument on behalf of state power runs against that purpose and is thus ahistorical." I think we'd agree that the conclusion does not follow from the premise. The conclusion is too sweeping and leaves out many important details.

In effect, though, this was the line of argument that the Chief Justice, Justice Thomas, and (to some extent) Justice Jackson pursued about the Fourteenth Amendment. They suggested that Section Three cannot be enforced by the states against federal candidates (or maybe just presidential candidates) in part because the purpose of the Fourteenth Amendment was to augment federal power and curb state power. Here too--the conclusion does not follow from the premise, even though the premise is accurate.