The Non-Originalist Decision That May Save Trump

Griffin’s Case and “The General Spirit of the Constitution”

The goddess Nemesis has afflicted the Republic with law professors bearing novelties, thereby calling the hubris of individuals into service to punish the collective hubris of our elite legal class. Two of those law professors, William Baude and Michael Paulsen, generated a theory about Section 3 of the 14th Amendment that was recently adopted by the Colorado Supreme Court, and that if adopted more widely threatens to ignite a constitutional crisis. The theory, roughly and briefly put, holds that Donald J. Trump, the leading opposition candidate for the Presidency, is disqualified from eligibility for that office because he participated in or at least aided an “insurrection” on January 6, 2020, and thus falls with Section 3’s disqualification from federal office-holding of those “who, having previously taken an oath ... as an officer of the United States ... 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.”

There are any number of ways to deny the validity of this shaky syllogism, as emphasized by Josh Blackman and Seth Barrett Tillman in an informative critique. The President or Presidency, for example, may not count as an “officer of the United States” for purposes of Section 3. In this brief comment, however, I will focus on a different and very serious obstacle to disqualifying Trump: the argument that Section 3 must be implemented through a process created by congressional legislation, rather than being applied directly by (for example) state courts.

I do so for a purpose that is ultimately theoretical and methodological, not political or partisan. The irony looming over the situation is that our current Court, stocked with a supermajority of Justices who consider themselves “originalists,” may well end up ruling in Trump’s favor on the basis of a precedent that is profoundly non-originalist in method. Indeed that precedent, Griffin’s Case, decided in 1869, underscores what I have called “the paradox of originalism.” Today’s originalists look backwards to anchor the meaning of law in the public understandings of earlier eras — either the founding era or, in the case of the Reconstruction Amendments, the post-Civil War era. But the public legal cultures, and public understandings of law, of those periods were not themselves originalist. The relevant lawyers and judges were instead steeped in a far older tradition, the classical legal tradition, and thus drew upon modalities of legal argument and interpretation that today’s originalists reject.

Griffin’s Case was decided by Salmon P. Chase, then serving as Chief Justice of the United States, while hearing appeals on circuit in Virginia. (In the institutional practice of the day, Supreme Court Justices would “ride circuit” to hear appeals from federal district courts). As such, it is not technically a binding precedent on our current Supreme Court, but if and when the Court takes up the case, the decision by Chase will inevitably play a central role as the leading persuasive precedent, and one of the few precedents of any kind, on the disqualification issue.

The procedural posture of Griffin’s Case is complex, and has been ably explained by Blackman and Tillman. As the complexities are irrelevant for my purposes, I will skip to the nub of the issue. Chase held that the disqualification embodied in Section 3 is not “self-executing,” legal parlance meaning that Congress must first implement the disqualification by appropriate legislation under Section 5 of the 14th Amendment. If Griffin’s Case is correct in this regard, then the case for disqualifying Trump immediately collapses, as no proceeding conducted under congressional legislation has found Trump to have participated in or aided “insurrrection.”

The point of interest here is Chase’s rationale for this conclusion, which rested on a modality of argument that today’s originalists profess to reject altogether. Chase argued, in essence, that the consequences to the constitutional order from holding Section 3 to be self-executing would be intolerable, creating a kind of political-legal chaos and inflicting forms of targeted injustice inconsistent with the “general spirit of the Constitution.” Avoiding such consequences was itself a good legal reason to weight the scales of interpretation against self-execution. Wrote Chase, “in the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. This argument, it is true, cannot prevail over plain words or clear reason. But, on the other hand, a construction, which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great degree, unless the terms of the instrument absolutely require such preference. Let it then be considered what consequences would spring from the literal interpretation contended for…”¹

What were the “great public and private mischief(s)” that Chase feared? Some involved the specific facts of the case, involving the question whether the official acts of a federal judge previously appointed in putative violation of Section 3 would have to be declared null and void. Independently and more broadly, however, Chase also appealed to background principles of a just constitutional order that disfavor disabilities and punishments targeted against named individuals or defined classes of individuals, and that are reflected, but not exhausted, in the Constitution’s clauses barring bills of attainder and ex post facto laws, and requiring due process of law — clauses that Chase expressly invoked. Chase went on to observe that “[i]t is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution.” For Chase, the interpretation under which Section 3 creates self-executing and targeted prohibitions “is repugnant to the first principles of justice and right embodied in other provisions of the constitution,” is “nugatory except for mischief,” and therefore “is not to be favored, if any other reasonable construction can be found.”

Interpreting Section 3 as non-self-executing would be a far more reasonable construction, Chase argued, because it would require Congress to create an orderly, regular and fair process for determining who had or had not participated or engaged in “insurrection.” As he put it, “[t]he object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the Constitution or in an act of Congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by Congress.”

Chase’s fundamental concern here is not hard to understand. It is not only that there should be a well-defined and fair process for a formal and regular adjudication of participation in insurrection. It is, crucially, that such a process, if it is to be “effective,” should be defined at the national level, by republican legislation that would make such a process legitimate, representative and credible, as opposed to — say — the decentralized decisions of dozens of state court systems, checked only by uncertain and politically controversial review by the unelected Justices of the Supreme Court. The uncertainty, disorder and inevitable political bitterness inherent in the latter regime is, of course, the very situation in which we now find ourselves.

Methodologically, for those steeped in the classical legal tradition, as were Chase and all other lawyers and judges of his day, none of the modalities of legal argument Chase invoked are at all surprising. As the classical jurist Justice Antonin Scalia himself observed, before the advent of a particularly doctrinaire form of originalism in recent years, “consideration of policy consequences,” or the fear that a given interpretation “would produce ‘absurd’ results, or results less compatible with the reason or purpose” of the relevant text, is itself a traditional tool of interpretation — “so traditional that it has been enshrined in Latin: ‘Ratio est legis anima; mutata legis ratione mutatur et lex.’ (‘The reason for the law is its soul; when the reason for the law clanges, the law changes as well.’)”

The legal basis for this approach is ancient: it rests on a fundamental legal presumption that the sovereign intends the constitutional order to embody coherence, effectiveness and basic legal justice. Chase presumes that the people of the United States, as constitutional sovereign exercising the power to ratify the 14th Amendment, “seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution” and to respect “first principles of justice and right.” However idealized such a presumption may be in fact, it is best understood not as a factual claim, but as a normatively-inspired fiction embodied in law. As such it has impeccable legal credentials, especially in all periods relevant to originalists. Chase’s presumption is parallel, mutatis mutandis, to the common lawyers’ presumption that Parliament intends its enactments to be rational, coherent and equitable, and indeed to the venerable classical legal presumption that “nothing is presumed to please the emperor except what is just and true … and the emperor wishes all his actions to be ruled by divine and natural justice as well as human.” This classical interpretive framework was a staple of American caselaw throughout the founding era and the 19th century, as illustrated by a now-neglected genre - collections of legal maxims, drawn from the Roman law, the medieval ius commune and common law, that were frequently invoked by American courts, and that were a staple of legal education and socialization.

As things currently stand, the Supreme Court is widely expected to take up the Colorado decision (or a similar decision from another state, should one appear). If and when it does so, Griffin’s Case will certainly be central to the arguments against disqualifying Trump. We may well witness, then, the ironic and amusing spectacle of Trump, who appointed three self-identified originalist Justices to the Court, being declared eligible for the Presidency by originalist Justices on the basis of a profoundly non-originalist decision, one issued almost contemporaneously with the enactment of the 14th Amendment — a decision that relies upon “the general spirit of the Constitution,” “first principles of justice and right,” and indeed “the very nature of things.” If and when this occurs, it will throw into striking relief that originalism in 2023 inevitably draws upon non-originalist sources from the very same eras to which originalists look for legal meaning, thereby creating an unavoidable paradox at the very foundations of originalist methodology.

1. N.B. Throughout, italics in quotations from Griffin’s Case have been added by me for emphasis.