Mark A. Graber
93 Geo. Wash. L. Rev. Arguendo 41
The Supreme Court in Trump v. Anderson was originalist only in the sense that the Justices offered an original, as in novel, interpretation of the Constitution–unmoored from history and the text. The judicial majority chartered four new “original” paths when concluding that states, under Section Three of the Fourteenth Amendment, could not disqualify candidates for federal office.
First, the per curiam opinion misleadingly insisted that the Fourteenth Amendment limited the power of state governments when the text, in approximately equal degrees, limits the power of the state and federal governments alike. Second, the majority’s superfluous emphasis on whether the Fourteenth Amendment augmented state power ignored the states’ pre-Civil War and current powers to make policies that prevent candidates for federal office from appearing on state election ballots.
Third, rather than examine whether the Colorado state court decision disqualifying President Trump was “unjust” in law or fact, the majority prohibited all state efforts to remove from the ballot candidates for federal office ineligible under Section Three. Fourth, the Roberts Court maintained that judicially approved congressional legislation was the only means for implementing the Fourteenth Amendment, a claim that prominent Republicans during Reconstruction asserted would threaten the goals of constitutional reform.
