The Self-Executing Constitution?
If anything in the Constitution were automatic, what would be the point of the judicial branch?
Suppose — theoretically — that the United States Constitution had been amended to say that no person shall be president or a senator or representative who shall have engaged in murder — but Congress may, by a vote of two-thirds of each House, remove such disability. Let’s stipulate that the disability is automatic. Anyone who shall have engaged in murder is disqualified. Who gets to decide whether someone has engaged in murder?
The question is not so theoretical at the moment. The Constitution was never amended to disqualify a person who engaged in murder. It was, though, amended to disqualify someone who “engaged in insurrection or rebellion” against the United States. Comes now a pair of conservative law professors arguing that President Trump is automatically disqualified from the presidency under this amendment, and no trial for insurrection is necessary.
We don’t mind saying that the professors’ argument strikes us as unpersuasive — and not only because Mr. Trump was already tried, in a formal impeachment proceeding, for inciting insurrection on January 6, 2021. It featured an impassioned prosecution by some of liberalism’s most famous congressmen. In the end, though, the 45th president was discovered by the Senate to be — in Senator Grassley’s words — “not guilty.”
Now, though, those sages — William Baude and Michael Paulsen — find disqualification to be “constitutionally automatic whenever its terms are satisfied.” They maintain that it “requires no legislation or adjudication to be legally effective,” but instead may be carried out by all whose duties are affected by it.” One legal sage, Joshua Blackman, though, tells us that “any big 14th Amendment case began with enforcement legislation or prosecution.”
“Here,” he adds, “you have absolutely nothing.”
We recall Berg v. Obama, from 2012. There, a Keystone State attorney sued to remove the 44th president from the ballot for an allegedly fraudulent birth certificate. His suit reached the Supreme Court, though the district judge called it “frivolous and not worthy of discussion.” Similar challenges were launched elsewhere. They, too, turned on constitutional qualification. What if some clerk, sua sponte, had scotched President Obama from the ballot, as the logic of Messrs. Baude and Paulsen would suggest?
The authors acknowledge that “a small problem with our view that Section Three is self-executing and immediately operative is that the Chief Justice of the United States said the opposite.” The case, from 1869, is “In Re Griffin,” and the chief justice is Salmon Chase, who was then sitting as a circuit rider. He concluded that implementing legislation was necessary. The article calls this decision “just wrong” and a “sleight of hand.” Chutzpah.
We spoke to an attorney, James Bopp Jr., who has represented two lawmakers, Marjorie Taylor Greene and Madison Cawthorn, in their own disqualification contests. He tells us that “nothing is self-executing” and that the Constitution does not allow “freelancing” or “private enforcement.” He labels the opposite position “erroneous” and the “broadest view of the amendment than anyone has ever taken.”
The self-executing position would, it seems to us, lead to a kind of constitutional vigilantism, with, say, a poll worker at Tacoma or an election official at Philadelphia refusing to deal in ballots with Mr. Trump’s name affixed. A disqualification for insurrection and rebellion could happen with no finding of either. Forget about due process — this appears more similar to a magic trick, or an incantatory spell to wish away Mr. Trump from the body politic.
“Who,” the professors ask, “has the power and duty” to disqualify, and the answer is “everybody,” or “anyone whose job it is to figure out whether someone is legally qualified to office.” The authors offer a list that comprises “state election officials; other state executive or administrative officials; state legislatures and governors; the two houses of Congress” and “the President.” Meaning that President Biden could disqualify his leading opponent.
We’d imagine, though, that willy nilly — or any — disqualification would eventually find its way to the Supreme Court. They could ponder why Special Counsel Jack Smith has failed to charge insurrection — nor has a single court anywhere found that an insurrection happened. America has charged more than a thousand persons in respect of January 6, and not one charge touches on insurrection.
Correction: Senator Grassley was the senator who announced the verdict of “not guilty” at President Trump’s second impeachment trial. The name of the senator was given incorrectly in the bulldog edition.