Neil Siegel (Duke University School of Law) has posted Narrow But Deep: The McCulloch Principle, Collective-Action Theory, and Section Three Enforcement (21 pages) on SSRN. Here is the abstract:
In Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding President Donald J. Trump from the Republican Party's primary ballot in the state. The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment. Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court's rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or the Court's own precedent interpreting them. This Essay nonetheless argues that the Court's judgment is justifiable on structural grounds. As envisioned in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Constitution's federal structure bars states from enforcing Section 3 against candidates for President or Vice-President, at least if they enjoy substantial support within their own political party. More than two centuries ago, McCulloch articulated a structural principle that disables states from causing multistate collective-action problems by interfering with a function of the national governing process. That structural, collective-action principle extends in parallel fashion to actions by states that interfere excessively with a function of the national political process. The Presidency, along with the Vice-Presidency, is a uniquely national office because all states, and all voters in states, play a role in determining who will run for that office and ultimately occupy it. Just as "a part" may not tax "the whole" because the whole is not represented in the part, so a part may not make presidential eligibility decisions that significantly undermine the capacity of the whole to determine who will represent it in the White House. Legal scholars can justly criticize the Court's reasoning in Trump v. Anderson, but not the result that it reached.
Professor Siegel is an outstanding insightful scholar, but in my view this is not an appropriate originalist approach (if that's what he's trying to do). Arguments from structure disconnected from text are just arguments about what would be the best structure, not arguments about what structure the framers (for better or worse) actually chose. I have some thoughts here (pp. 973-974).
On the subject of originalist methodology, here's another recent SSRN post. Nathaniel Shaw Hay (United States Court of Appeals for the Seventh Circuit) & Isaac Barnes May (Yale Law School): The Originalist Case for Court Packing (82 pages). Here is the abstract:
Modern considerations of Supreme Court expansion are invariably mired in partisanship, with supporters justifying it on ideological grounds and opponents condemning it as nakedly partisan and potentially unconstitutional. This Article, however, reframes the debate about Supreme Court reform by uncovering the long-neglected history of the Court’s connection to the circuits, and demonstrating how the understandings and practices dating back to the Founding call for a larger court. In fact, fidelity to the intent of the Founders and longstanding constitutional practice calls for increasing the number of Justices to thirteen or twenty-six. While this conclusion may seem startling, reestablishing the Court-circuit connection would not only conform to the Constitution but would have structural and practical benefits.
From the Founding era until after the Civil War, the judiciary’s structure and function tightly linked the Justices to the federal judiciary and the nation as a whole via the circuit courts. This connection, though largely forgotten today, comprised a bundle of key principles and practices that were unquestioned at the time. These included the principle of parity between the number of Justices and the number of circuits, the practice of circuit riding—whereby each Justice was assigned to and heard cases in a single circuit, and the circuit residency requirement, which mandated that Justices be residents of their assigned circuit. These interrelated elements fostered a grounded and democratically legitimate Court, and they were considered binding and self-evident for the first 140 years of American history. So deeply entrenched was this constitutional framework that even at the height of the Civil War, President Lincoln adhered to it without question. It was not until the late nineteenth century that this link began to erode, culminating in 1929 when Congress abruptly dismantled the Founders’ judicial structure by creating a tenth circuit without appointing a corresponding tenth Justice.
This neglected history is crucial in several respects. First, it demonstrates that increasing the number of Supreme Court justices is not merely consistent with longstanding historical practices, but is in fact demanded by the Founders’ intentions for the judiciary. While court expansion may intuitively seem radical, this Article reveals how those who believe in a historical approach to constitutional understanding should embrace, rather than reject, such expansion. Second, the historical perspective furthermore challenges modern assumptions about the Supreme Court and the judiciary, revealing how drastically different the contemporary system is from what it once was. Neither the Founders nor President Lincoln could have imagined a Supreme Court totally divorced form the circuits, whether in number or operation—yet that is precisely where we find ourselves in the present day. Finally, the history this Article excavates offers a constructive path forward in addressing the modern criticisms of the Court. To this end, this Article advocates for reestablishing the Court’s connection with the circuits—a reform which, despite appearing unconventional, is in fact more constitutionally grounded and politically feasible than many other proposed reforms. At a minimum, this would involve increasing in the number of justices to align with the number of circuits, but ideally it would also entail reviving those longstanding norms and practices that served the Court for so long.
I strongly disagree. The fact that the first Congress in the Judiciary Act, and subsequent Congresses, thought the circuit-based structure was a good idea suggests that is it constitutionally permissible (I agree that it is). But it does not at all suggest that it is constitutionally required. It is not tied to any constitutional text, even indirectly. Post-ratification practice standing alone does not create a constitutional obligation — in the same sense that President Washington's decision not to stand for a third term did not create a constitutional obligation even though it established a practice that contemporaries thought carried great weight.
Posted at 6:10 AM