At the New Digest, Adrian Vermeule (Harvard): The Non-Originalist Decision That May Save Trump - Griffin’s Case and “The General Spirit of the Constitution”. From the introduction:
… The irony looming over the situation is that our current Court, stocked with a supermajority of Justices who consider themselves “originalists,” may well end up ruling in Trump’s favor on the basis of a precedent that is profoundly non-originalist in method. Indeed that precedent, Griffin’s Case, decided in 1869, underscores what I have called “the paradox of originalism.” Today’s originalists look backwards to anchor the meaning of law in the public understandings of earlier eras — either the founding era or, in the case of the Reconstruction Amendments, the post-Civil War era. But the public legal cultures, and public understandings of law, of those periods were not themselves originalist. The relevant lawyers and judges were instead steeped in a far older tradition, the classical legal tradition, and thus drew upon modalities of legal argument and interpretation that today’s originalists reject.
Griffin’s Case was decided by Salmon P. Chase, then serving as Chief Justice of the United States, while hearing appeals on circuit in Virginia. (In the institutional practice of the day, Supreme Court Justices would “ride circuit” to hear appeals from federal district courts). As such, it is not technically a binding precedent on our current Supreme Court, but if and when the Court takes up the case, the decision by Chase will inevitably play a central role as the leading persuasive precedent, and one of the few precedents of any kind, on the disqualification issue.
The procedural posture of Griffin’s Case is complex, and has been ably explained by Blackman and Tillman. As the complexities are irrelevant for my purposes, I will skip to the nub of the issue. Chase held that the disqualification embodied in Section 3 is not “self-executing,” legal parlance meaning that Congress must first implement the disqualification by appropriate legislation under Section 5 of the 14th Amendment. If Griffin’s Case is correct in this regard, then the case for disqualifying Trump immediately collapses, as no proceeding conducted under congressional legislation has found Trump to have participated in or aided “insurrrection.”
The point of interest here is Chase’s rationale for this conclusion, which rested on a modality of argument that today’s originalists profess to reject altogether. Chase argued, in essence, that the consequences to the constitutional order from holding Section 3 to be self-executing would be intolerable, creating a kind of political-legal chaos and inflicting forms of targeted injustice inconsistent with the “general spirit of the Constitution.” Avoiding such consequences was itself a good legal reason to weight the scales of interpretation against self-execution. Wrote Chase, “in the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. This argument, it is true, cannot prevail over plain words or clear reason. But, on the other hand, a construction, which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great degree, unless the terms of the instrument absolutely require such preference. Let it then be considered what consequences would spring from the literal interpretation contended for…”
Posted at 6:12 AM