Baude and Paulsen in their paper on Section 3 of the Fourteenth Amendment write:
Finally, let us reiterate one consequence of Section Three’s breadth and capaciousness. Because Section Three’s terms possess a range of meaning, both a determinate core and a fuzzier periphery, we need a second-order rule concerning the authority of decisionmakers to act on the basis of fair interpretations of indefinite terms. We think that the general rule of our constitutional order is that political officials may take actions premised on fair interpretations of indefinite terms, and that when they do so, their actions cannot rightly be held “unconstitutional” by the courts, precisely because they fit within the fair range afforded by the Constitution. Where the Constitution admits of a range of choice, political authorities may exercise choices within that range.
This is foundational to our constitutional law. It is the premise of judicial review as set forth in Marbury v. Madison, which justifies setting aside the acts of other branches only because, and only to the extent to, they deviate from the Constitution’s meaning. It is classically illustrated by the Court’s reasoning in M’Culloch v. Maryland, which upheld Congress’s power to create the Bank of the United States because a generation of political actors had acted within the fair range of meaning of constitutionally granted powers. And this principle means, as a practical matter, that the breadth of Section Three’s broad terms cannot be ignored, or artificially limited, by judicial construction. Where those charged with responsibilities that involve applying Section Three’s terms have given that language its full legitimate sweep, that breadth must be honored.
This claim is not entirely clear. On the one hand, it might be the entirely pedestrian claim that when a general provision is involved, one should not artificially cut it back. But if that is what they mean, I am not sure it really needed saying and I think could have been said more clearly to avoid misunderstanding.
But it could mean something far more aggressive. Under this view, it might appear to be saying that where a provision is ambiguous or vague, courts must accept the interpretation chosen by the political branches, even if the political branches are state administrative officials such as a state secretary of state.
If that is the claim, I do not agree. Nor do I agree that it is “foundational to our constitutional law.” Marbury does not say that. Nor does M’Culloch. M’Culloch – however one interprets it – merely addressed Congress’s power to use a means to execute an enumerated power. It did not say that where an enumerated power, such as the power to regulate commerce among the states, was ambiguous, Congress was entitled to choose the interpretation it believed was correct and the courts had to respect that.
This more aggressive claim is a kind of super–Chevron, one that applies not merely to implied delegations from congressional statutes that agencies administer but to all political actors, federal and perhaps state, when interpreting the Constitution.
I genuinely do not know which of these interpretations they mean. It is entirely possible that the authors disagree about this matter – their footnote provides some limited support for this possibility.
But I think this issue is important. It is one thing to say that the state can initially enforce the 14th Amendment without Congress or a court saying they can do so. I tend to agree with Baude and Paulsen on this point. But it is another thing to suggest that if the 14th Amendment is ambiguous or vague, the courts cannot resolve the matter and must respect the decision of the political branches. That is very unusual. And seems especially problematic where a state decision implicates a national election. Do different states each get to interpret section 3 differently and the Supreme Court must accept this so long as a state's interpretation is reasonable?
Posted at 8:00 AM