Courthouse Steps Preview: Trump v. Anderson

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Emily Manning:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Emily Manning, and I’m an associate director of practice groups with The Federalist Society. Today, we’re excited to host a Courthouse Steps Preview: Trump v. Anderson. We’re joined today by Professor Kurt T. Lash, Professor Ilya Somin, and our moderator today is Professor Derek T. Muller, professor of law at Notre Dame Law School. If you’d like to learn more about today’s speakers, their full bios can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today and, Professor Muller, the floor is yours.

 

Prof. Derek T. Muller:  Thank you so much, Emily. It’s a privilege to be here, especially with two such esteemed scholars ahead of a really significant Supreme Court oral argument tomorrow morning in Trump v. Anderson, this question about ballot access in Colorado and the presidential primary and whether or not Donald Trump engaged in insurrection under the Fourteenth Amendment. Section 3 of the Fourteenth Amendment has gotten a lot of attention in recent weeks, including from the three of us. I filed an amicus brief in support of neither party, so I’ll be the moderator today.

 

And we’ll go in order of petitioner and respondent in a sense. So Professor Kurt Lash is the Claiborne Robins Distinguished Chair in Law at the University of Richmond, and he’s going to open with a few remarks on his amicus brief that he filed in support of the petitioner Trump. And then we’re going to turn to Ilya Somin, who is the Professor of Law and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, but his professorship is at the George Mason University Antonin Scalia School of Law. So I look forward to hearing both of your remarks. There’ll be an opportunity then to respond to one another and then an opportunity for some questions and answers. So Professor Lash, I turn to you with the opening thoughts.

 

Prof. Kurt T. Lash:  Thank you, Derek, and my thanks to The Federalist Society for hosting this discussion. It’s great to see Ilya and continue a conversation and a debate that we’ve had, a debate that of course is occupying scholars and lawyers all over the country. I have submitted an amicus brief in this particular case that covers one particular issue that the Court’s going to have to decide.

 

There are many issues, and we probably will get into some of them as we go. Was this an insurrection or a rebellion against the Constitution? Did Trump engage in insurrection and rebellion? Did Donald Trump take the kind of oath that is covered by Section 3? Is Section 3 self-executing? These are all very important questions, and those are just a few.

 

My particular contribution has to do with my research on the first sentence of Section 3, and I recognize that we don’t actually have that text in front of us. So those of you who have joined this session, please feel free to google Section 3 of the Fourteenth Amendment or pull out your pocket Constitution because the text is important. Okay. In fact, why don’t I since I have a little bit of extra time -- how about if I just start by reading Section 3?

 

Here we go. “No person shall be a senator or representative in Congress or elector of president and vice president or hold any office, civil or military, under the United States or under any state who having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each house remove such disability.” So that’s the clause in its entirety, and where my research has gone is into that opening sentence, which I believe presents a threshold issue that has to be resolved before anything else can be talked about.

 

This question does not involve whether the president holds an office. The threshold question is whether the president holds a civil office under the United States. That is a far more difficult and historically complicated question, and in my brief I argue that this phrase is capable of more than one meaning and that the ratifiers did not resolve this textual ambiguity. Accordingly, I think it would be inappropriate to apply the clause in a manner that prevents the national electorate from choosing their president.

 

Now, to explain how I arrived at that conclusion, I’d like to talk about language in the Fourteenth Amendment as a whole because that amendment is full of broad words that are restricted by their placement in a longer legal phrase. The due process clause does not just speak of liberty; it speaks of persons deprived of liberty without due process of law. The privileges or immunities clause does not just protect privileges; it protects the privileges or immunities of citizens of the United States, a longer phrase. In the same way, Section 3 does not just speak of offices. It speaks of offices civil or military under the United States. And just like the privileges or immunities clause and the due process clause, prior to the adoption of the Fourteenth Amendment, this phrase also already had a long history of legal construction.

 

At the time of the Fourteenth Amendment, well-established congressional precedent and legal authority defined the phrase “civil office under the United States” as referring to appointed offices and not the apex political positions of senator, representative, or president of the United States. That principle was first established by what has become known as Blunt’s Case in 1799, and this was the authoritative view of Justice Joseph Story in his commentaries on the Constitution. Likewise, Senator Lyman Trumbull, one of the framers of Section 3, agreed. In the debates over the Ironclad Oath, Trumbull explained that general references to “any office of honor or profit under the government of the United States either in the civil or military” did not include the unique office of the president.

 

Now, though an early draft of Section 3 expressly named the president in its opening words, the final draft did not. Instead, the final draft lists specific offices, methodically moving from the high office of senator and representative down to a general catchall phrase that everyone agrees includes the lowest appointed officers. This structure naturally reads as if the drafters expressly named all the high offices they wished to include, and they did not include the president. Now, as I’ve conceded in my brief, it is textually possible to read that general catchall phrase as including both the highest and lowest offices in the land. But that is not a necessary reading.

 

The text was ambiguous, and the ratifiers could’ve read the text either way. Unfortunately, nothing in the historical records suggests that the ratifiers resolved the ambiguity one way or another. Despite months of aggressive research by all the scholars involved in this debate, no one has managed to find a single ratifier talking about the meaning of the clause in terms of its effect on the office of president, nor is there any reason to think the ratifiers would’ve thought the issue was important.

 

No Republican at the time worried about the nation electing Jefferson Davis as president of the United States. Instead, Republicans faced a very real and imminent danger arising out of state level pockets of Southern disloyalty. Influential rebels might exploit their remaining local popularity and secure state appointment to the Senate, election to the House, or appointment as a presidential elector. Once in office, these obstructionist rebel Democrats would join forces with their Northern counterparts and either block the enactment of federal civil rights legislation or help to elect a northern Democrat like Horatio Seymour as president.

 

Section 3 reasonably and successfully addressed all of these very real concerns without having to go further and needless abridging the right of the national electorate to choose their president. So in sum, because the text can be reasonably read as excluding the office of the president and because we have no evidence that the ratifiers thought otherwise, I believe the Supreme Court should reverse the decision below and let the people decide for themselves whether to vote for or against Donald Trump. Thanks.

 

Prof. Derek T. Muller:  Thank you, Professor Lash. There are many issues in this case, and you’ve delved into one of them and I think the lead argument that the Trump petitioners have leaned into as well. But now I want to turn to Professor Somin who filed an amicus brief on behalf of the respondents. And I look forward to hearing your remarks.

 

Prof. Ilya Somin:  Sure. Thank you to The Federalist Society for organizing this event and to Kurt for his thoughtful contribution. I’m going to cover a bit wider range of issues than Kurt did because obviously from my side of the debate we do have to prevail on several different issues. That obviously is a disadvantage. The other side need only prevail on one out of about five or six issues.

 

However, although they have more arguments, with one possible exception I think those arguments are just pretty bad, even when extremely skilled people like Kurt Lash, who is a great scholar in this area, advance them. I think even his skills are not enough to justify the argument that the president is not an officer of the United States given that he holds the highest office in the land.

 

So before going into the specific arguments, I do want to just give a brief big picture overview of what this is about in that obviously this is a limitation on who can hold various offices, including if I’m right the presidency of the United States. And for that reason, it is a kind of limitation on democracy, but both the United States and other liberal democracies have various provisions in their laws that constrain democracy either to protect other liberal values or alternatively to protect democracy itself. For instance, we have the Twenty-Second Amendment, and that prevents anybody from running for president or at least becoming president who has already served two terms as president.

 

We also have an age restriction. The person must be at least 35 years old and so forth. And some of those are to try to ensure good policymaking. We hope that people who are over 35 years old are more mature than those who are under. Though that obviously isn’t always true as we’ve seen from some of our recent presidents who are not exactly strong on maturity.

 

But both Section 3 and the Twenty-Second Amendment, they’re actually limitations on democracy to preserve democracy itself in one case from a president who consolidates power over time by serving indefinitely, in the other case by disqualifying people who have already proven by their actions that they’re willing to use force and fraud and other similar methods to subvert the democratic process. And so this is actually a constraint on democracy but one that preserves democracy itself. Or another way that you can put it is that, if you like to say, as many conservatives do, that we live in a republic, not a democracy, Section 3 is one of several aspects of the Constitution that reflects that principle, reflects some degree of suspicion of unconstrained democracy, which if not limited in certain ways can destroy itself.

 

So I think the first big issue, I think, to address is whether an insurrection even occurred on January 6, 2021, and I think the answer to this question is pretty clearly yes, that even if you adopt a relatively narrow definition of what counts as an insurrection, seizing power by force, that’s exactly what the people attacking the Capitol were trying to do. They were trying to prevent the transfer of power to the legally elected president elect Joe Biden and instead keep in power a person who had lost an election. That counts as an insurrection under even a narrow definition of the term.

 

There was in fact an original meaning evidence compiled by other scholars which shows that the understanding of insurrection at that time was pretty broad. I would add also that the scale of the violence that occurred—several people were killed. Over a hundred law enforcement officers were wounded—was comparable to other events in American history before the Civil War like the Whiskey Rebellion and Shay’s Rebellion which were generally considered as insurrections or rebellions both at the time and in the 1860s.

 

I think the toughest issue for my side of the debate is the issue of not whether there was an insurrection but whether Trump engaged in it because Trump obviously didn’t personally attack the Capitol. He didn’t say in so many words go attack the Capitol by force. However, I think there are nonetheless enough damning facts against Trump that the Colorado Supreme Court and the trial court before it correctly ruled that in fact he did engage in insurrection as the Colorado Supreme Court explains in detail not just on January 6 but for weeks before that.

 

He had encouraged and promoted violence by his supporters in various ways. And when you have a person who does this who is a prominent political leader whose supporters will foreseeably act on what he says as opposed to some guy on a barstool saying something, that I think qualifies as engaging in insurrection. But the most damning fact on this core is not just what he said before the attack but what he did during it. When it was going on and when he knew it was going on, he called members of Congress to continue to pressure them to try to overturn the election results, and thereby he was using the attack as leverage to try to gain his end of staying in power illegally. That’s engaging in insurrection even more blatantly than what he did before.

 

So I’ll go on next to the issue that Kurt focused on which is the meaning of “officer of the United States.” Kurt says the text is ambiguous. I think it is not. At least it is not ambiguous from the standpoint of any ordinary reader, and the Supreme Court in opinions written by Justice Scalia has said that at least as a presumptive matter we should interpret the Constitution in ways accessible to the ordinary reader as opposed to sort of technical obscure meanings that are only known to people steeped in these legal materials as Kurt is and I am.

 

I’m not against studying those legal materials, but the presumption should be that ordinary meaning should govern. That’s not just my view. That’s the view of the Supreme Court as expressed in a number of opinions and decisions including by Justice Scalia. And if you think about it from that perspective, it just seems very obvious that the phrase “officer of the United States” or “office under the United States” -- both of those are used in different parts of Section 3 -- includes the person who holds the highest and most powerful office in the land, namely the president. And in addition, it would just be absurd to say that a president who engages in insurrection, if he gets off Scott free as least as far as Section 3 is concerned, whereas a low level federal bureaucrat, a postmaster or some low ranking flunky, that person if they engage in insurrection is disqualified.

 

Now, Kurt has advanced historical consideration saying maybe they don’t worry about someone becoming president of the United States if their an insurrectionist. I don’t think those considerations hold water. Both then and now, electors were people who generally just would rubberstamp the choice of their party, and the Democratic Party at that time, unlike now, was the party of the white South. And it was perfectly foreseeable that they might nominate an ex-Confederate for the presidency.

 

And Democratic Party electors, even if they themselves were loyal in a sense they hadn’t participated in insurrection, might support such a nominee of their party. And the fact that the Democratic Party had the base of support it did also made it perfectly conceivable that such people would be nominated and could be. And moreover, even a small risk of somebody like this becoming president of the United States was quite significant and was something that people at the time would reasonably be concerned about.

 

There are also conjectures from prior legal sources and from the original Constitution and its references to the presidency and offices which are sometimes used to advance the other side of this debate. I don’t have time to go into these in detail right now. Though, I’m happy to go into them in questions. I will merely say that even if they’re true of the original Constitution, they’re not something an ordinary reader in 1868 would grasp. And there’s no evidence that they were intended to apply to Section 3. At the very least, once you combine the ordinary meaning rule, combined with the presumption against absurdities that we should not interpret legal texts in ways that lead to absurd results, that gets you to a pretty clear conclusion that the presidency is included both with respect to who is disqualified and with respect to the offices that they’re disqualified from holding.

 

Another issue and I think a big one that has been raised is the issue of whether the amendment is self-enforcing. That is whether there has to be additional congressional legislation or not before the amendment could be enforced. This is a big argument advanced in the Trump brief and by some of his amici as well. And I would say merely here that at the time in the 1860s and early 1870s a number of former Confederate office holders were in fact disqualified despite the fact that there was no additional enforcement legislation.

 

It is true that there is a case called Griffins case when Chief Justice Salmon P. Chase acting in a lower court, not as Supreme Court justice, said that it was not self-enforcing. But he himself took the opposite position in the case of In re: Davis which dealt with Jefferson Davis and his potential eligibility to hold office, and moreover, this is certainly not the way this was understood by most people at the time. I would add also that most of the rest of the Fourteenth Amendment similarly doesn’t directly say in the text whether it’s self-enforcing or not. But the same logic that would make this not self-enforcing would end up making most the rest of the amendment, perhaps all of it, not self-enforcing as well. So the better interpretation here is that Section 5 of the amendment gives Congress the power to enact additional enforcement legislation but doesn’t require it.

 

Finally, there is the issue to which my amicus brief is devoted, which is the question of whether a criminal conviction for insurrection or anything else is required before Trump or anybody can be disqualified under Section 3. And here I think too the text and original meaning cut the other way. Nothing in the text indicates there must be a criminal conviction first, and indeed if you look at the practice at the time everybody who was adjudicated as disqualified in the 1860s and 1870s had not in fact been convicted of crimes related to their participation in the Civil War. Moreover, many people in this position probably could not have been convicted given that such high ranking Confederates as Robert E. Lee had surrendered under terms under which arguably, they were exempt from prosecution so long as they complied with the terms of their surrender.

 

It is sometimes argued that due process requires a criminal conviction or that it requires a criminal standard of proof. You see this argument in some of the amicus briefs. My response is that this is a civil proceeding, not a criminal proceeding, and therefore it doesn’t require criminal standards of proof and moreover that the due process clause doesn’t even apply to this situation because the due process clause only requires due process when there is a depravation of life, liberty, or property.

 

There is no such deprivation of any of those three things in this instance. All Trump would lose is eligibility for certain government offices. No one claims there had been a deprivation of life, liberty, or property, say, that Barack Obama experiences because under the Twenty-Second Amendment he’s ineligible for the presidency. And the same applies here.

 

Finally, I appeal to the great precedent of OJ Simpson, which is an example of how civil and criminal processes are fundamentally separate. OJ, of course, was famously acquitted of killing his ex-wife and her friend Ron Goldman, but later in a civil process he was held civilly liable. You can argue about which if either of those reached the correct result, but it’s notable that the outcome of the one doesn’t determine the outcome of the other.

 

It’s perfectly possible that the same sequence of events can give rise to criminal charges and also to civil liability or in this case disqualification. But one might occur without the other because the two are separate, and that is actually a fundamental aspect of our legal system, both today and back in the 1860s. So thank you so much and I very much look forward to discussion and questions.

 

Prof. Derek T. Muller:  Thank you. That was great. Professor Lash, what responses do you have? Do you have any to Professor Somin more generally because he raised a number of things that you haven’t addressed in your brief? And I don’t know if you have thoughts on those but then also particularly to some of the points he raised on the officer of the United States point.

 

Prof. Kurt T. Lash:  Sure. And again, I don’t want to take too much time because I want to be able to -- us to get to the questions from those who are listening in. But I have a few responses, and I’ll go in reverse order, first involving whether or not there needs to be a criminal prosecution. One of the things that did come up out of the ratifying assembly debates that we have availability to were concerns that Section 3 was going to be unfairly used against unpopular political figures. And the assumption by those who were critics of Section 3 -- their assumption was of course there would have to be some kind of process before anyone could be disqualified. But what kind of process is going to be sufficiently protective of people against partisan politics? So we at least do have that evidence from the ratifiers.

 

Then, in terms of standards, whether or not -- Ilya has compared civil standards versus criminal standards. This is sui generous. We have no idea what type of standards need to be required in this case, and there are no standards required by the Constitution itself. We’ve made up those standards because we thought there was sufficient risk or sufficient danger to the body politic unless certain standards were used. And in this case, there is an extraordinary risk to the body politic.

 

I don’t understand the claim that there’s no risk of deprivation of life, liberty, or property. There’s one hell of a deprivation going on here, and that’s preventing people from exercising their right to vote for their candidate. So I think there’s good reason to have a very high standard of some kind. And it should be enacted by Congress and not something made up on a state by state basis.

 

Just briefly, a couple of other points, in terms of whether or not this is a limitation on democracy—and I think that is tied to what I just said—yes, there are some provisions in the Constitution that place requirements. There’s the 35 year age limit. There’s also the requirement of a natural born citizen. We don’t consider those to be a problem. They may be antidemocratic, but they’re not a problem.

 

And the reason why we don’t consider them a problem is that they are expressly stated in the text, and they were added by the people themselves after being robustly vetted and debated in the ratification conventions. In this case, we’re talking about a requirement or a restriction on the political process that is not stated in the text and doesn’t seem to have received any consideration whatsoever by the ratifiers. That being the case, yes, I think applying this in this case would be profoundly antidemocratic and would not be justified by the Constitution.

 

Then, there are lots of things we can talk about in terms of was it absurd to not bind the office of president, but just one quick thing on freedom of speech, which I don’t think has gotten enough conversation amongst the scholars that I’m engaging with. Ilya talked about how the Colorado trial court went into all of this and they studied whether or not Donald Trump engaged in insurrection and rebellion. And they looked at the speech that he had engaged in in the days and weeks prior to January 6, and Ilya talks about he had a particular important role who would be looked to by people.

 

So maybe he would have greater influence, and that’s why we need to maybe consider him to have engaged even if he never really said the Brandenburg speech engagement language. Well, I’m just not sure about that at all. I told my students from the very beginning there’s no way that this can be counted as anything but protected speech, not after the Claiborne Hardware case where you had Evers, who’s leading people in the boycott and who states that if any of these -- and here’s the quote. “If we catch any of you going into any of them racist stores, we’re gonna break your damn neck.” And his followers then went and broke peoples’ damn necks.

 

But the Court nevertheless said since he did not expressly say let’s go break necks right now, despite his special role as leader and despite the fact that people were looking up to him, that speech was still fully protected. I just do not see how they can hold Trump’s speech accountable without really blowing a hole into current free speech doctrine. That’s enough. Now we can just talk.

 

Prof. Derek T. Muller:  Professor Somin, I’ll give you a chance to respond to that, and then we’ll --

 

Prof. Ilya Somin:  Sure.

 

Prof. Derek T. Muller:  -- get to some Q&A.

 

Prof. Ilya Somin:  So just a brief response. First, this disqualification, like that for people under the age of 35 and that for people who are not natural born citizens and so on, is also in the text. It’s right there in Section 3. That was the whole point of adopting Section 3 to include this disqualification.

 

Now, maybe you can say it’s less clear than those other ones, so there actually have been debates about the meaning of the other ones like whether a person born to U.S. citizens abroad is a natural born citizen. That’s an actual case that Donald Trump supporters filed against Ted Cruz who was born to U.S. citizens but in Canada, so they argued he wasn’t natural born.

 

And so the fact that there could be dispute about some issues doesn’t mean it’s not in the Constitution and doesn’t mean that the presumption should somehow go in favor of the person who might be disqualified, especially in a case like this where from the standpoint of the ordinary person the text is clear and it would be ridiculous and absurd if the holder of the highest office in the land was exempt from disqualification for insurrection whereas low level bureaucrats, low level military officers and so forth clearly would be disqualified. If anything, I would apply the opposite presumption that the disqualification applies most clearly to the most dangerous and most powerful people.

 

In terms of process, I agree that our legal tradition probably requires some sort of process, and you can argue about exactly how much. My point is simply that it doesn’t require criminal level due process and that ordinary civil due process is sufficient. And actually, what happened here was more than ordinary civil due process. In ordinary civil due process, usually cases require a proof by preponderance of evidence. That is if your side has even a slightly greater than 50 percent likelihood on the evidence that you prevail.

 

In this case, the Colorado courts applied the higher standard of clear and convincing evidence, which more naturally occurs in usual civil process. And the presumption of our legal system is that if something is not a criminal case, which this is clearly not, then usually civil standards of evidence apply unless there is specific legislation indicating otherwise. So Congress could perhaps enact a statue which says we require clear and convincing evidence or even perhaps we require proof beyond a reasonable doubt, but unless and until Congress does that, ordinary civil standards suffice.

 

So finally, I think the ultimate -- finally, on freedom of speech, I want to briefly speak to that question that what Brandenburg says is that there must be a clear and imminent threat of violence or illegality, and certainly on January 6 there was. Moreover, clearly what he did after the attack in the Capitol, that is use the attack as leverage, surely is not protected speech and surely does fall within the definition of engaging in insurrection. So it seems to me that it’s overcome by that, and while the case of Claiborne Hardware is interesting and perhaps relevant, I think it’s also the case that the president and the leader of a vast political movement, there is much more chance that his speech of this kind will actually lead to violence than the leader of a smalltime boycott. And therefore, I think the case is much clearer in this instance than it was in that one.

 

I would add also that as Mike Paulsen and Will Baude show in their article on this that Section 3 is supposed to supersede previous potentially conflicting parts of the Constitution. And here, you’re not actually punishing anybody for speech. You’re just disqualifying them from political office. And so that’s different from something like in Claiborne Hardware where I believe there was actually a threat of criminal liability. Just if people can be disqualified from office for things that are otherwise even a kind of discrimination that wouldn’t be permitted elsewhere such as not being a natural born citizen, so an age discrimination and the like, so similarly I think the same point applies here. Sorry, I’ve gone longer than I should have, but Kurt raised a number of different issues.

 

Prof. Derek T. Muller:  This is great. This is the good back and forth that we want to see. All right. So we have a number of questions. Please feel free to put questions in the queue, and again, questions begin with a who, what, where, when, why, how, do you -- something like that.

 

Professor Lash, I’m going to open with a question about sort of maybe the ambiguity. And I’ll have a question for Professor Somin about that, too. So you point to the ambiguity. Why does that suggest that cuts against that the office applies to the presidency? And particularly I wonder about you talk past Professor Somin a little bit. You rely much more on the legislative history, and he was relying much more on some of the public meaning or understanding in the public. So I wonder if you can talk about both how you address ambiguity and whether or not there’s some inconsistency in the approaches of originalism here.

 

 

Prof. Kurt T. Lash:  Sure. In terms of originalism, my entire argument is based on a theory that gives special deference to the understanding of the ratifiers. So discussions of the framing of Section 3 is only relevant to the degree that it was accessible to the public and could’ve informed their understanding. And in this case, much of those debates were published on a daily basis. It wasn’t like the secret Philadelphia convention. So anyhow, I’m happy to be held to a standard that requires me to explain why I take this position as a matter of originalism that privileges the ratifiers.

 

So my argument is that the text that went to the ratifiers was ambiguous and that we have no authority to resolve that ambiguity in a way that the ratifiers did not. And that’s a basic premise of popular sovereignty. It’s the idea that -- and it goes back to adding the 35 year old restriction. The reason why those are justified restrictions are not because they are democracy promoting.

 

Everyone disagrees about what democracy promoting is. It’s left to the people to decide what is democracy promoting, and so under popular sovereignty you allow the people to debate and enact their constitution. Article V amendment requires a two-step deliberation process where Congress debates the text and tears it apart and only if two-thirds of them agree then it goes to a second round of debate and discussion among the ratifiers. And only if three-quarters of the ratifiers say yeah, we want to entrench that as part of our constitution does it then become entrenched. And if they don’t, then by default it remains unentrenched, and therefore it’d continue to be subject to political debate.

 

In this case, what would remain in debate is whether or not Donald Trump should be disqualified. I’m going to make that decision if he’s there on the ballot at the time of the election. So it becomes exceedingly important to know whether or not the ratifiers thought that they were getting a text that potentially -- and the way it’s always phrased, it’s always phrased in a way that stacks the deck. Would they have wanted to give an assist to Jefferson Davis, or would they actually want to keep him out of office? Well, of course when they thought about Jefferson Davis, who they didn’t particularly like—he was a mass murderer—they wouldn’t have had any problem doing anything with him.

 

But that’s not the question. The question is did the people want to bind themselves, and this is the answer to Ilya’s point about absurdity. It is not absurd at all to distrust state level decision making amongst people who had just caused the death of 600,000 Americans. It wasn’t the nation as a whole, and it certainly wasn’t the loyal electorate of the North that caused all that death and destruction.

 

It was state level decision making. It makes perfect sense that they would draft a clause that would do what? That would go after senators. Oh, that’s state level decision making. Representatives, state level decision making. Presidential electors, state level decision making. Then the appointments clause goes after the decisions by Andrew Johnson, who’s giving away pardons to people left and right, and again state level positions and state level appointments. So it makes sense to craft a clause that does no more interference with the political process than necessary, and what was necessary is to constrain state level rebellion. There was no reason to constrain the loyal national electorate, and unless they knew that’s what they were doing, we shouldn’t presume that they did.

 

Prof. Derek T. Muller: Professor Somin, so some are also asking questions I think more on the insurrection point and the engaged in and saying that there’s some ambiguity in these factual determinations. Trump’s speech where he does use words like “peacefully” and “patriotically” marching where you have this sort of political rhetoric on the side of the debate where you do have some suggestions that the First Amendment is there and that we actually kind of disfavor impliedly preempting or impliedly amending or withdrawing earlier amendments to the Constitution, that Trump’s state of mind -- was he trying to engage in leverage, or was he simply trying to exercise whatever authority he had in that moment, whether or not there was a riot happening at the Capitol? So how do you take all these things happening in a trial courtroom in Colorado in a very short period of time and these intense factual inferences and use them to conclude that sort of the threshold has been met in this case to bar someone from the ballot potentially with some effects nationwide?

 

Prof. Ilya Somin:  So my answer to that is twofold. One, I think the evidence is very strong that if an attack is going on that’s violently trying to prevent the transfer of power and at the same time you’re calling up and lobbying the very people who are being attacked, threatening them and saying you have to give in, that’s pretty obviously using the attack as leverage. I don’t see any other defensible way to interpret that, certainly not under a civil standard of clear and convincing evidence or preponderance of evidence. Maybe it doesn’t fully work under a reasonable doubt standard, but that’s not the standard that applies here.

 

And similarly, the second point that I would make on this is that finders of fact ultimately determine this, and that would be the people at the trial court. If the Supreme Court or other court finds the process was somehow fundamentally biased or unfair, it could overturn that. The finder of fact can be overturned for clear error, but otherwise we give deference to that. Yes, there is a risk the finders of fact will make a mistake. That exists in every civil or criminal case ever.

 

And this goes to Kurt’s point about state level decision makers. If the state level decision makers make a mistake of law, then that can be appealed to federal court, at least if it’s a mistake in interpretation of federal law or the federal Constitution. And also, I don’t think there was much worry that somehow untrustworthy southern states would disqualify former confederates too much. If anything, the issue was that they would do it too little, but to the extent that they might make mistakes or screw up or be biased, you have review by federal courts of the legal issues.

 

And also, obviously, if cases go to a jury or to a judge, at both the state and the federal level there are procedures for challenging jurors and judges for possible bias. It’s not perfect, but the same thing can be true for adjudication of virtually every other contentious issue. And the bottom line here I think is when you look at the issue of the officer of United States or at the issue of insurrection it’s very clear that this is an insurrection or was even under a narrow definition of what counts as one.

 

And it’s also, I think, at least to an ordinary reader clear that the highest office in the land qualifies as an officer in the United States. To think otherwise you really would have to dig deep into very counterintuitive kind of legalistic arguments, which is exactly the sort of thing that the ordinary meaning rule tells us not to do. And the relevant audience is not actually members that are ratifying conventions or members ratifying state legislatures who are politically elite. It’s the ordinary people out there in the streets, the ordinary readers who look at this text and, in most cases, unless they are deeply steeped in various legal materials, they would have no reason to suspect that somehow the holder of the highest and most powerful office is not an officer of the United States.

 

Prof. Derek T. Muller:  Someone raised a question—neither of you really addressed this point, and the briefs obviously make a lot of points. And I don’t know which, if either, of you want to weigh in—about this distinction that Section 3 bars individuals from holding office; whereas what Colorado is doing is trying to prevent someone from running for office or specifically from appearing on the ballot in a presidential primary. I don’t know if either of you have thoughts on that or want to react, and I’ll sort of throw it open.

 

Prof. Ilya Somin:  It’s a good question, and I think it is true. Section 3 in and of itself only bars you from holding office. However, Colorado, like a number of other states, has an entirely reasonable law which says that in order to be on the ballot for a given office in Colorado you have to be legally qualified to hold the office. And as Justice Gorsuch wrote in an opinion when he was a court of appeals judge, states have a legitimate interest in keeping off the ballot people who are not qualified to hold office. And once there is a state law whose implementation depends at least in part on the provisions of the federal constitution, federal courts, including the Supreme Court, can then interpret the relevant constitutional provisions which determine the application of the state law.

 

I would add that as a practical matter it makes much better sense to exclude people in this position early on than to wait until inauguration day and say, oh, you just won the election. Congratulations, but now we’re going to rule he can’t hold office. That, for obvious reasons, would cause much more trouble and would be much more likely to lead to problems than if you can determine early on that somebody is disqualified.

 

And I would say the same thing, by the way, for relevant precedence on this, why Gorsuch’s precedent, which dealt with -- I believe it dealt with somebody who is not a natural born citizen. There are other precedents determining at the election and ballot access stage that somebody who doesn’t meet the age of 35 isn’t qualified, and I mentioned the case against Ted Cruz that Trump supporters brought. They were trying to get him off the ballot for the Republican primary, and while I disagree with the legal theory, I think they were right to say if Cruz is disqualified it makes sense to address that early rather than late had Cruz become the Republican nominee. And he was second to Trump in terms of -- albeit a distant second, but had he become the Republican nominee or had he been elected president and only then he gets disqualified, that would’ve cause serious problems. And the same thing applies here.

 

Prof. Kurt T. Lash:  Just quickly, I agree with Ilya, and that’s why he’s wrong. Notice the dancing that has to go on here. An early draft did say you can’t be qualified or hold the seat, and that language disappeared from the final draft. So you have an interesting legislative history question on the table. On the other hand, Ilya’s right. It just would be an absolute mess to have a situation where they would not be allowed to take Trump’s name off the ballot because it has nothing to do with qualifying. That would mean that this decision could only be made at the last final moment when Kamala Harris is counting the electoral votes. This is just incredibly dangerous and disruptive.

 

So you have to do some dancing; right? Or you can simply say of course they didn’t include the office of president. They never would have disrupted the national electoral process this way. This entire problem goes away if we’re simply talking about state level decision making and the holding of offices in those cases where those state level populations are making those kinds of decisions. So you’ve created a problem for yourself by opening the text into a binding on the national electorate. I just don’t think it does, and so there isn’t a problem.

 

Prof. Ilya Somin:  Let me briefly comment.

 

Prof. Derek T. Muller:  Yeah.

 

Prof. Ilya Somin:  There need be no problem if we understand the dual structure of election administration in this country, which is that the Constitution has provisions and qualifications for office but states have the power under the elections clause to determine the time, place, and manner of elections, including ballot access. So if states --

 

Prof. Kurt T. Lash:  Not qualifications. Not qualifications.

 

Prof. Ilya Somin:  So qualifications for the office but they can and do often exclude people from the ballot who are perfectly qualified for the office if for instance they don’t --

 

Prof. Kurt T. Lash:  Because they missed a timing. Because they didn’t get -- because they didn’t meet the state timing.

 

Prof. Ilya Somin:  Yes.

 

Prof. Kurt T. Lash:  That’s called signs and places.

 

Prof. Ilya Somin:  And they can also say --

 

Prof. Kurt T. Lash: Not qualifications.

 

Prof. Ilya Somin:  And the state can --

 

Prof. Kurt T. Lash:  Not qualifications.

 

Prof. Ilya Somin:  You can say that, but there is both logic and precedence saying that states can in fact exclude from the ballot people who are not qualified for the office. As I mentioned before, Justice Gorsuch reached a decision on that basis when he was on the Tenth Circuit. There’s other precedents as well from both state and federal courts to that effect, and it makes perfect sense that states can keep people off the ballot for that reason.

 

Yeah. You can avoid that problem in this instance by saying it doesn’t apply to the president, but there’s a price for that, which is the presidents would get a blank check to engage in insurrection in the future without being disqualified. To my mind, that dangerous precedent is far more problematic than that other one would be.

 

Prof. Kurt T. Lash:  No. No, there’s no blank check at all. They would have to be elected, and under your reading, they can be elected. Under your reading, an insurrectionist who does all the terrible things that you say Donald Trump did, he can be president of the United States. He just has to get the permission of Congress. That’s all.

 

Prof. Ilya Somin:  A two-thirds super majority.

 

Prof. Kurt T. Lash:  So all that you’ve done here -- all that you’ve done is transferred the ability of the people to decide whether or not he’s been disqualified or whether or not he can serve for president into making it a prior restraint where the people cannot exercise their right to vote unless they first get permission from Congress. And that’s an oddity.

 

Prof. Ilya Somin:  Yeah. So a two-thirds super majority in both houses is not going to occur as a practical matter unless there is broad support from the people as well.

 

Prof. Kurt T. Lash:  It’s a very serious prior restraint. You’re right.

 

Prof. Ilya Somin:  Yeah. The whole point of limiting office qualifications is to have a prior restraint on who can hold office. This one by virtue of the override is actually a bit less presumptive or a bit less constraining that the other ones, the 35 year age limit and so on.

 

Prof. Derek T. Muller:  I appreciate intense and respectful disagreement here on The Federalist Society. I want to wrap up with sort of a two part question that I think is not going to be as contentious. And I want to start with you, Professor Lash, as we began. One, to think about the scope of sort of the research, the briefs, the arguments that have come out and your approach specifically in this matter, and second, if you have any things that you’re going to be watching for oral argument tomorrow. And I’m going to have the same question for you, Professor Somin.

 

Prof. Kurt T. Lash:  Well, I think everyone is doing their best to cover the bases, to cover the issues. You’ve got thousands of pages of amicus briefs that are trying to cover every aspect of the case. Because this is a case of first impression and first historical impression and legal impression, I don’t think we’ve had nearly enough time to do the historical research that needs to be done for the originalists on the Court in any event to be able to come to a conclusion about the definite meaning of Section 3.

 

As I’ve talked to other people about, we’ve spent a century and a half trying to figure out privileges or immunities, and we still have not been able to come to scholarly agreement, much less judicial agreement. So I don’t think we’re in any position despite the wonderful attempts and the incredible scholarly efforts that people are currently engaging in. I think we’re going to be finding out more about Section 3 for the next 100 years. It’s simply too soon to lock this in.

 

And now, transitioning into the questions that they’re likely to get tomorrow, I think they’re going to get that kind of question. I think that there’ll be some institutional questions, probably coming from Chief Justice Roberts and perhaps Justice Barrett. Why are the courts involved in this at all? Shouldn’t we let Congress be the one to take the lead on the enforcement legislation and we should stay our hand until they do so? That’d be a way for them to escape all these difficult issues.

 

The originalists, which I think is really most of the Court right now, are going to have some very pointed questions about what we know in terms of the drafting history and the ratification history and also congressional practice, which Ilya was talking about earlier. And I also expect Justice Kagan to want to talk about federalism. I think that Justice Kagan is going to want to know why we should not allow the states to take the lead on this.

 

And this, again, would track what Ilya was talking about earlier. Let the states use their own election law and make these decisions, and then maybe the problem will completely go away because Trump won’t be elected in November. But that’s what I’m looking for in terms of general questioning.

 

Prof. Derek T. Muller:  Professor Somin.

 

Prof. Ilya Somin:  Yeah. So I certainly agree that we probably don’t know everything about Section 3 and all the relevant possible historical evidence, and Kurt is certainly right that he and others, even myself a little bit, have been talking about other parts of the Fourteenth Amendment and how it applies to other things now for 150 years. So those debates don’t show any sign of ending any time soon, and that may be true of the Section 3 debate.

 

So the key question there, I think, is what do you do if you have some uncertainty. And to my mind you should do what actually the Supreme Court says we do which is go with the plain, ordinary meaning. And on most of the issues in contention here -- there are one or two exceptions. But on most of those issues, those plain, ordinary meaning considerations cut against Trump’s position.

 

The idea that the president is not an officer of the United States is highly counterintuitive and problematic. The idea that congressional legislation is required even though nothing in the amendment states that it is has a similar problem. The idea that there was not an insurrection even though people stormed the Capitol by force also seems kind of highly counterintuitive. And I can go on, but there’s similar points about all of their arguments. Engaging in insurrection admittedly is somewhat harder.

 

As I said before, I think that’s their best argument. But what he did during the insurrection, using it as leverage, I think is pretty damning evidence nonetheless.

 

In terms of what I would look for tomorrow, given that there’s five, six, seven different issues I would look to see which of these issues the justices spend more time on because that may give us some indication of which they consider the most important, the most contentious or also if they are inclined to overturn the Colorado Supreme Court, which I admit they may be. While I’m not as pessimistic about my side of the case as some people are, neither am I totally gung-ho and optimistic either. So I think at the very least we can learn from the oral argument which of these issues is of most concern to at least many of the justices, and we’ll have to see.

 

Prof. Kurt T. Lash:  Can I ask a neutral question, just a quick neutral question of Ilya?

 

Prof. Derek T. Muller:  Sure.

 

Prof. Kurt T. Lash:  Okay. Ilya, suppose that neither of us wins, at least not completely. They’ve got to head in some direction. What do you think -- if they don’t accept your argument, what do you think is the next strongest argument that you would predict a majority would embrace? I’m just curious.

 

Prof. Ilya Somin:  As a matter of logic and evidence, I think the best argument for Trump’s side is that even though an insurrection occurred that he didn’t engage in it. And to whether that’s the most likely way that he could win the case, I don’t know, but I think it’s possible that the justices may be tempted to try one of these off ramps that doesn’t require them to actually pass judgment on what Trump did such as it doesn’t apply to the president or it’s not self-enforcing or even that we have to wait until November or what not. Though, that one I think is less likely because if they really thought that, they could’ve just not taken the case.

 

So the fact that they did take it to me at least suggests they probably want to resolve it now. I see, Kurt, that might be an issue where the two of us agree. So I think one of these sort of off ramp kinds of arguments might be tempting to them. Though, each of those arguments do have their own price.

 

If they choose the officer of the United States, that means presidents are entirely exempt from Section 3 from this day forward, which might be a dangerous precedent. If they say it has to be congressional legislation, then in the absence of such legislation -- it’s unlikely that Congress can agree on it in the near future, at least. I think it’s unlikely based on -- that also would effectively gut Section 3 not just for the president but also for everybody else because presumably it would have to be self-enforcing for other people as well.

 

So they have a large menu of options that they can choose from if they really want to overturn the Colorado Supreme Court, but the logically best one is one that would essentially require them to exonerate Trump. Whereas the ones that are not as logically good or it’s sort of more off ramps, they’re less compelling as arguments, and they also could potentially set dangerous precedence for the future. So I honestly don’t know which one of those they choose. If I had to bet, I would suspect sort of an off ramp strategy might appeal to them more than saying Trump didn’t engage in an insurrection. But I’ve been wrong about what Supreme Court justices might think before, and this prediction is probably worth about as much as you’re not paying for it.

 

Prof. Derek T. Muller:  Well, thank you so much, Professor Lash and Professor Somin. This is an extraordinarily busy week for you and for us all, but I appreciate you taking the time here. Emily.

 

Emily Manning:  On behalf of The Federalist Society, thank you to our speakers for joining us for this great discussion today, and thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website, fedsoc.org, or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in and we are adjourned.