Splitting the Section 3 baby

Akhil Amar argues that the SCOTUS ought to deal with Trump v. Anderson by allowing each state to decide individually if Donald Trump is eligible to be elected president, given that Section 3 of the 14th amendment bars insurrectionists, and those who have given aid and comfort to enemies of the nation, to hold that office if they had previously taken an oath to uphold the Constitution.

Amar makes short work of the argument, that, as a historical matter, Trump is not an insurrectionist within the meaning of Section 3. BTW, whatever one thinks of originalism as a general theory of constitutional interpretation, one response that doesn’t make any sense is that we shouldn’t care what the framers and ratifiers of the 14th amendment meant by the word “insurrection” — which of course is a word that can be given a relatively broad or narrow definition — but rather simply “read the text” itself to decide what the word means. The text itself, like every text, doesn’t mean anything in and of itself: it means what somebody thinks it should mean. Who that somebody is and what they think about that question — in other words, who is the author of the text for interpretive purposes? — is always and everywhere the only relevant interpretive question in textual interpretation. And if the authors of this text are its historical authors, then Donald Trump is without question an insurrectionist within the meaning of Section 3.

Moving right along:

The Constitution provides the answer. It structures a 50-state solution in which different states may properly use different procedures and protocols, and different standards of proof, to apply Section 3. Some states, like Colorado, may carefully police ballot access even in primary elections. Others will focus more on the general ballot. Still others may wait until vote tabulation begins. Yet another cluster of states may defer to Congress as the last actor when Electoral College ballots are unsealed. In past elections, Congress has at times refused to count improper electoral votes.

Under the 50-state solution, facts as found by a state trial court in Colorado permit that state to act. But other states using different procedures are free to act differently, or not at all. What happens in Denver stays in Denver, unless other states choose to follow suit. In 1860, Lincoln was not on the ballot in every state; ditto for Ralph Nader in 2000. Welcome to the Electoral College.

But what about democracy? The first-insurrection concept reminds us that those who attack elections cannot justly complain when they are disfavored in later elections. Turnabout is fair play. And the 50-state-solution notion reminds us that Americans have never picked presidents in a single undifferentiated national contest. Eight years ago, constitutional federalism made Mr. Trump president even though Hillary Clinton won millions more votes nationally. This time around, constitutional federalism may well disfavor Mr. Trump.

This is an attractive argument for certain pragmatic reasons — let 50 flowers bloom and all — but it has some problems. The first is formal: It’s one thing to say that states can restrict ballot access as a matter of state law — for example, Ralph Nader not getting enough signatures to get on a state ballot — and quite another to say that states are free to restrict ballot access as a matter of their interpretation of federal law. Obviously states aren’t free to create additional constitutional qualifications to hold federal office, which would seem to imply that they can’t individually interpret federal law in regard to questions of federal eligibility. This seems like the ultimate federal question, which would be difficult for a federal court to dodge.

A second problem is a practical one: An election in which some states declare Trump constitutionally eligible and other don’t would be rejected out of hand by close to half the voting public as illegitimate by definition. This may well happen anyway, give the Trump doctrine that Donald Trump cannot legitimately lose presidential elections, but such a SCOTUS opinion would all but guarantee it.

Amar here is playing to the desire for a minimalist or pseudo-minimalist ruling under the circumstances, and I understand why he would — I also don’t doubt that he thinks his argument is formally/empirically correct as a matter of law and history — but I tend to doubt that this particular dog will hunt.

With oral arguments in the case happening tomorrow, and a decision certain to follow within days after that, we’ll soon find out.