The public debate over the applicability of the [14th] amendment kicked into high gear following the release last month of a law-review article written by William Baude and Michael Stokes Paulsen, two conservative constitutional law professors who argue that, under an originalist interpretation of the provision, Trump is barred from running for office. The notion picked up steam in some quarters of the press, as well as an endorsement from two prominent legal thinkers, but it has since drawn vocal objections from the right on legal, political, and policy grounds. Just this month, one early and prominent supporter of the effort — a co-founder of the Federalist Society who had initially called the article “a tour de force” — changed his mind.
The originalist framework can lead its adherents to some strange places, particularly if they have already made up their minds about what the result should be. Baude and Paulsen, for instance, breeze past two statutes from the late 1800s — not that long after the 14th Amendment went into effect — that complicate their analysis, but they produce no meaningful or contemporaneous historical evidence to support their conclusions.
Somewhat amusingly, the authors go to great lengths to shore up their position against the very unhelpful fact that it was rejected the year after the 14th Amendment was adopted. Chief Justice Salmon Chase issued a decision that dismissed the idea that the provision created a sweeping and self-executing prohibition on public office and concluded that Congress had to pass legislation to implement it. Chase wrote the opinion while “riding circuit,” so it is not the law of the Supreme Court, but under ordinary circumstances, this would seem to be pretty devastating for originalist legal scholars. After all, are they better positioned to conclude that Chase’s interpretation “does not hold up as an original matter” — their words — than a sitting Chief Justice who was alive at the time and explicitly contemplated the question? There are also plenty of legitimately unsettled questions concerning the application of the 14th Amendment to Trump, including whether the president is himself “an officer of the United States” or if instead that phrase applies only to subordinate officials in the government. [Continue reading…]