At Dorf on Law, Eric Segall: The Boys are Back: Section 3, Trump's Failed Disqualification, and the Irrelevancy of Originalism. From the introduction:
The Boys of Originalism are back. Professors William Baude and Michael Stokes Paulsen have published a follow up to their law review article concluding that Section 3 of the 14th Amendment disqualifies Donald Trump from holding federal office. That article went viral (by law professor standards) and placed the potential disqualification of Trump in the center of the American legal landscape.
They begin their new article [ed.: noted here] by quoting Justice Oliver Wendell Holmes, Jr. for the proposition that “great cases, like hard cases, make bad law.” They lament that the Supreme Court did not follow their version of text and history when the justices unanimously reversed the Colorado Supreme Court’s disqualification of Trump, and they dislike the justices' holding that states cannot disqualify federal officials absent congressional authorization. The authors view Trump v. Anderson as a complete jurisprudential disaster.
Both Professors Baude and Paulsen are diehard originalists who believe that the Supreme Court should pay careful attention to text and history rather than policy and consequences when making constitutional law decisions. Their article reflects great disappointment with the current justices for refusing to rise to the occasion in this “great” case and issuing an important decision disqualifying Trump from holding federal office again.
The authors discuss many "great" cases that most of us would also consider "great" in the way the authors and Holmes use that term (not because they, you, or I necessarily agree with the results). These cases, however, as the authors recognize (mostly in footnotes), are either non-originalist or anti-originalist and turn on pragmatic concerns. Baude and Paulsen, quite consistently with their prior work, take issue with this type of decision-making. They also, however, admire the courage of at least some of those cases to, in their own words, "rise to the occasion."
And from the conclusion:
The authors' discussion of these "great" cases where they believe the Court "rose to the occasion" is mysterious, given the often express denial of originalism in many of those cases. But the Court almost never decides constitutional law cases, much less "great" ones, with reliance on text and history.
If the authors' predominant concern was method, not result, they might have spent more time critiquing the non-originalist aspects of these cases rather than putting most of that analysis in short footnotes. Whatever their reasons, these “great” cases get in the way of Baude's career-long quixotic quest to convince us that Originalism is our Law. It is not and never has been, as the authors' own recitation of the cases conclusively demonstrates.
The history of constitutional law in this country is one of pragmatism and attention to consequences, sometimes hidden by easily condemnable formalist irrelevancies. The greatest judges of them all–Marshall, Holmes, Brandeis, Hand, Cardozo, Jackson, Brennan, and Posner–all knew this and usually acted accordingly. The "great" cases cited with approval by the authors were demonstrably much more concerned with consequences than the words on the page or ancient historical events.
Originalism is not now nor has it even been our law, and the authors' complaint about Trump v. Anderson is not really about method–such complaints rarely are. They wanted a different result, not believing those of us who for explicitly prudential reasons did not want Trump disqualified. We might have been right or we might have been wrong but like all major constitutional cases, the battlefield is consequences, not method. That is the real lesson of the disqualification case and all the "great" cases cited by the authors as well as, ironically, their own empty nods to and defenses of originalism in their new article.
Posted at 6:10 AM