I’d like to respectfully disagree with Professor Rappaport’s conclusion that the case of Trump v. Anderson was a disaster for originalism.
The Supreme Court held unanimously that states cannot individually enforce section 3 of the Fourteenth Amendment against presidential candidates. That conclusion seems unobjectionable to me, especially since Congress is given enforcement power in section 5, and has used that power to produce the current version of 18 U.S.C. 2383 which the Court specifically pointed to. The question whether a part of the Fourteenth Amendment is self-executing, or whether section 5 is instead an exclusive means of enforcement, sometimes has to be deduced from context, and here the context includes this: the framers presumably did not want to cause massive, crippling chaos and absurdity. That’s a fair presumption. The absurdity doctrine is ancient; it cannot overrule clear text, but section 5 is not clearly unnecessary in every instance. Moreover, the text of section 3 suggests that a person either is an insurrectionist or is not, instead of being an insurrectionist in the eyes of some beholding states and not in the eyes of other beholding states.
Suppose that SCOTUS had said, fine, Colorado can hold an evidentiary hearing, and can conclude Trump is an insurrectionist within the meaning of section 3. In my view, that reading would have been implausible because of the absurdity it would have caused.
On one hand, it can be argued that such a decision in Colorado, if affirmed by the U.S. Supreme Court, would have become binding on all the states, in the sense that Trump would have to be removed from all the ballots nationwide. That would be nuts, of course, because (in future) states would have to chaotically race to SCOTUS so that their version of the facts would prevail nationwide over states that had not litigated the matter so quickly.
On the other hand, it can be argued that each state should be able to use its own respective evidentiary rules and procedures to ascertain the facts for itself, but then the federal courts (including SCOTUS itself) would likely have to decide multiple cases from multiple states with multiple different respective findings of fact about a single incident (such as the incident on January 6, 2021). Again, that would be nuts, because it would implausibly put SCOTUS in the position of affirming that Trump was an insurrectionist under Colorado rules of evidence, but not an insurrectionist under Maine’s rules of evidence, for example. Section 3 would then have to be applied differently by SCOTUS to the exact same incident, despite the implicit assumption in section 3 that a person either is an insurrectionist or isn’t.
As SCOTUS said, one state might treat a congressional report as inadmissible hearsay, while another state might view it as admissible evidence, and likewise other evidence might be admitted in some states but not in others. The result sounds a lot like the paradox of Schrodinger’s cat, except that the cat is Donald Trump. And, say what you will about Erwin Schrödinger and his theories, nothing like them was considered acceptable prior to the twentieth century.
Depriving states of the ability to apply section 3 against presidential candidates seems to me consistent with the constitutional text and structure. That leaves the decision with federal actors, and perhaps 18 U.S.C. 2383 is the only way that those federal actors can proceed, with only one set of procedural and evidentiary rules (i.e. federal rules, with only slight variations from one federal trial court to the next).
I have already blogged here as to why I don’t think Trump engaged in insurrection that day. So Professor Rappaport and I reach the same conclusion about that. But it seems to me that SCOTUS had good reason to avoid overturning or supplementing the factual record in this particular case. They did not have original jurisdiction in this case, and when jurisdiction is only appellate then the usual practice in 1789 and today is that appellate courts are supposed to correct legal errors rather than factual errors, at least if the factual errors aren’t extremely obvious. Appellate courts can sometimes take judicial notice of facts outside the record, but that is typically limited to well-known facts that are authoritatively attested and beyond reasonable doubt. It’s true, the Constitution does say that, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” But appellate review of factfinding is rarely de novo, and even when it is de novo, that does not mean new evidence can be introduced, or discovery can be reopened, or new testimony can be given, or the rules of evidence can be modified.
One last point. It could be argued that Congress could explicitly preempt state disqualifications by providing for an exclusive federal procedure, but did not do so here. This has a flip side though: Congress could explicitly permit state disqualification, but did not do so here. I’m not sure how much power Congress really has to do either of those things (the latter is especially problematic for reasons I have explained), but even assuming such congressional power exists, it has not yet been exercised, so it’s pretty much a wash. We are left with the absence of original jurisdiction in this recent U.S. Supreme Court case, the propriety of applying the (ancient) absurdity canon, and also the language in section 3 that suggests a person either is an insurrectionist or isn’t.
Posted at 6:23 AM