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There is no non-political constitutionalism


Given that actual legislators are trying the magic bullet approach, I wanted to echo Paul’s comments from yesterday:

Democrats in the California Legislature are trying a novel approach to remove former President Donald Trump from the state’s March 5 primary ballot.

But first they need a fellow state Democrat to get on board the long-shot effort.

Nine California lawmakers wrote a letter to Attorney General Rob Bonta over the weekend, arguing that Trump isn’t eligible to be on the ballot for inciting an insurrection when a mob of his supporters attacked the U.S. Capitol on Jan. 6, 2021.

The move, which comes amid several lawsuits to keep Trump off state ballots across the country, is unique because Bonta could use his standing as California’s top law enforcement officer to expedite a state court ruling on the matter. Should the effort succeed, California could be the first state to bump Trump off its ballot, even if the ruling is ultimately overturned.

The problem with the Section 3 argument isn’t that it’s wrong. It’s a strong argument! And if you don’t want to believe Stokes Paulsen and Baude, Mark Graber’s new book makes a similar argument (about the 14th Amendment, not Trump per se) from the left. And it’s worth emphasizing that argument that the 14th Amendment disqualifies Trump is not “originalist” in the sense of being some kind of esoteric textual reading or a cynical effort to confine broad constitutional principles to very specific historic policies to make reactionary outcomes seem constitutionally required. Disqualifying people who are disloyal to the government was a critical overriding purpose of the 14th Amendment, not least because the framers of the amendment mostly understood that the precise wording of the rights in Section 1 would mean little if people hostile to said rights were interpreting them. I have no problem with scholars pointing this out.

The problem is that the framers of the 14th Amendment ultimately weren’t cynical enough about the future of constitutional interpretation. Section 2 was their elegant solution to the increased representation the South would receive after the 3/5ths clause was abolished: essentially, states either had to enfranchise otherwise eligible freed slaves or lose representation accordingly. Alas, Congress could and did ignore unambiguous language that the representation of states that disenfranchise otherwise eligible voters “shall be reduced,” after adding a bunch of nearly empty new states meant that Republicans could cede the South to the Democrats and remain competitive.

And this is the practical problem with enforcing Section 3 against Trump. Ultimately, constitutional language is not enough — as Paul says, you need political support that is close to a consensus to make it work. Section 3 can’t work to keep Trump off the ballot can’t work for the same reason impeachment couldn’t work to disqualify him. Trump can only be defeated at the ballot box — not because the argument that he’s ineligible under Section 3 doesn’t have a plausible grounding, but because it cannot practically be enforced in this political context. Making the argument in law reviews is fine; public officials spending time on it is counterproductive.

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