I have never been convinced by arguments that the President is not an "officer of the United States". That makes no sense on its face, and minor textual issues in the Constitution and the 14th Amendment seem de minimis and not determinative of this issue.
Rather than being the strongest argument, this seems the weakest argument against disqualifying Trump.
The stronger argument seemed to be the question of whether Trump actually "engaged in insurrection" which you answered by quoting from Trump's own fillings. But that's not to say that Trump's team won't distance themselves from those filings at some point.
Thank you for this astute post! I was previously unsure on the point of whether the President is an "officer of the United States" as the term was used in 1868, but you've convinced me: both by citing the debate in the Reconstruction Congress, and - even more forcefully - pointing out that when a term's technical meaning is unclear then it should be presumed to have been used in its ordinary everyday meaning.
On the one hand, this makes more significant the questions of whether Mr. Trump actually did engage in insurrection. But on the other hand, I'm very glad to no longer be unsure here of such a significant point.
Nov 6, 2023·edited Nov 6, 2023Liked by James J. Heaney
Well knowing this has been longer then the Great Gatsby does help me feel better about it taking me this long to get through it. I’m excited to still be living in a world where I don’t know anything about the oral arguments and will be hopping over to that tab as soon as I hit ‘POST’ on this comment!
I’m a bit confused by your introduction of “linguistic drift” and how that squares with your very consistent push for originalist/textualist rulings vs the “living constitution” school of thought. How is “linguistic drift” a valid scholarly application to the constitution (“a person” meant <x> at the time and we now all understand it to mean <y>) whereas “living constitutionalism” is a Supreme Court run amuck (“a person” meant <x> at the time but we now also understand that to include <x+y>). I don’t understand the line in the sand you’re drawing between those two applications. Is it just that one is done by the judicial branch and the other is done by legislature/voters? Why would that be a distinction worth making?
(Also, I will admit to skipping not only one but TWO footnotes for my first time ever… In my defense #6 and #8 didn’t seem to add anything new to the piece though! #22 was a fun oddity to read, even if it doesn’t hold any legal weight)
Oh, yeah, I didn't even INTEND anyone to read #6 and #8. #8 was expressly there only for screenreader support -- a very important but oft-overlooked feature of making webpages accessible to disabled users! -- and #6 was just showing my work in case anyone wanted to question it.
I realized the importance of showing my work after the "eligible ghosts" debacle a couple of weeks ago.
Right, fair question, and it may well be that I should have been clearer in my discussion there.
The textualist believes that the meaning of a legal text is whatever the educated public would have understood its objective meaning to be at the time that the text was enacted. That meaning (whatever it is) is fixed for all time, no matter how the language drifts over time. When applying the Eighth Amendment, it doesn't matter if "cruel and unusual punishment" means <x+y+z> today if it only meant <x+a> at the time of enactment, just as you say.
However, linguistic drift can still matter in certain circumstances.
For example, imagine a law passed in Connecticut in 1655 that read as follows: "No one in the vicinity of a consecrated cemetery shall be gay, nor dress in gay garments, nor show outward signs of gayness; violation of this statute shall be punished as a misdemeanor." This imaginary law has a pretty clear meaning: you can't be happy or ebullient in or around a cemetery, presumably out of respect for the dead. A textualist would understand that this law did not have anything to do with homosexuals, and would apply it accordingly. (This law would likely be found unconstitutional under the First Amendment.)
However, the word "gay" has undergone significant linguistic drift since 1655. An educated public using the exact same word today now means something *very different* by it.
Now imagine the exact same law passed again, but in Utah in 1972: "No one in the vicinity of a consecrated cemetery shall be gay, nor dress in gay garments, nor show outward signs of gayness; violation of this statute shall be punished as a misdemeanor." This imaginary law *also* has a pretty clear meaning: no homosexuals near cemeteries, and especially no gay kissing in cemeteries, presumably now because they are "consecrated" ground. (This law would likely be struck down as well, but by the Fourteenth Amendment rather than the First.)
In both cases, we follow the guiding star of the textualist: the meaning of a text is fixed at the time it was enacted, according to the original public meaning at the time of its passage. However, because the meaning of the word is different in different times, the law objectively means something different in different times.
Does that make more sense?
Since the judicial branch cannot enact text at all (but can only interpret it), the judiciary can *never* alter the objective meaning of a text. Legislatures and voters can't alter the objective meaning of an enacted text, either, but what they *can* do is amend the enacted text, using established democratic-republican procedures. When they do so, we interpret the text of their amendment according to the meaning at the time the amendment was passed, not the time the original statute was passed.
If you start from the rule that the textualist believes that the meaning of a legal text is whatever the educated public would have understood its objective meaning to be at the time that the text was enacted, everything else naturally follows.
No reason to have spoken more on this in the body of the piece. I’m just curious as an avid de civitate reader who has spent the last few years being convinced that having Republicans appoint all of these originalist/textualist Supremes is a fine and good thing instead of ideological warfare. You’ve won me over to the ways of originalism. The example in this comment therefor makes perfect sense that the same words passed 100’s of years apart from one another would have different meanings and different effects. I’m still confused by the passage in the actual article though.
Reading it again it sounds like there were originally two lines in the 13th Amendment. One that originally meant that prison labor was OK and a second that meant something more obscure was OK. Then, after 100 years of ‘linguistic drift’ voters repealed that second sentence (thinking they were repealing the intent of the first sentence). At this point doesn’t the 13th amendment still have the original first sentence with the original first sentence’s meaning in it? Just because modern times thought removing that second line would be sufficient doesn’t actually mean that it is sufficient…… right? Would my an originalist reading of this scenario still hold that prison labor is allowed? Feels like only a “living constitution” reading that would disallow prison labor today.
The "nifty little 2022 paper" seems to link to the SCOTUS case, not to the paper.
Oops! Thanks for calling that out. I'll correct. Here is the link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930695
I have never been convinced by arguments that the President is not an "officer of the United States". That makes no sense on its face, and minor textual issues in the Constitution and the 14th Amendment seem de minimis and not determinative of this issue.
Rather than being the strongest argument, this seems the weakest argument against disqualifying Trump.
The stronger argument seemed to be the question of whether Trump actually "engaged in insurrection" which you answered by quoting from Trump's own fillings. But that's not to say that Trump's team won't distance themselves from those filings at some point.
Thank you for this astute post! I was previously unsure on the point of whether the President is an "officer of the United States" as the term was used in 1868, but you've convinced me: both by citing the debate in the Reconstruction Congress, and - even more forcefully - pointing out that when a term's technical meaning is unclear then it should be presumed to have been used in its ordinary everyday meaning.
On the one hand, this makes more significant the questions of whether Mr. Trump actually did engage in insurrection. But on the other hand, I'm very glad to no longer be unsure here of such a significant point.
Well knowing this has been longer then the Great Gatsby does help me feel better about it taking me this long to get through it. I’m excited to still be living in a world where I don’t know anything about the oral arguments and will be hopping over to that tab as soon as I hit ‘POST’ on this comment!
I’m a bit confused by your introduction of “linguistic drift” and how that squares with your very consistent push for originalist/textualist rulings vs the “living constitution” school of thought. How is “linguistic drift” a valid scholarly application to the constitution (“a person” meant <x> at the time and we now all understand it to mean <y>) whereas “living constitutionalism” is a Supreme Court run amuck (“a person” meant <x> at the time but we now also understand that to include <x+y>). I don’t understand the line in the sand you’re drawing between those two applications. Is it just that one is done by the judicial branch and the other is done by legislature/voters? Why would that be a distinction worth making?
(Also, I will admit to skipping not only one but TWO footnotes for my first time ever… In my defense #6 and #8 didn’t seem to add anything new to the piece though! #22 was a fun oddity to read, even if it doesn’t hold any legal weight)
Oh, yeah, I didn't even INTEND anyone to read #6 and #8. #8 was expressly there only for screenreader support -- a very important but oft-overlooked feature of making webpages accessible to disabled users! -- and #6 was just showing my work in case anyone wanted to question it.
I realized the importance of showing my work after the "eligible ghosts" debacle a couple of weeks ago.
Right, fair question, and it may well be that I should have been clearer in my discussion there.
The textualist believes that the meaning of a legal text is whatever the educated public would have understood its objective meaning to be at the time that the text was enacted. That meaning (whatever it is) is fixed for all time, no matter how the language drifts over time. When applying the Eighth Amendment, it doesn't matter if "cruel and unusual punishment" means <x+y+z> today if it only meant <x+a> at the time of enactment, just as you say.
However, linguistic drift can still matter in certain circumstances.
For example, imagine a law passed in Connecticut in 1655 that read as follows: "No one in the vicinity of a consecrated cemetery shall be gay, nor dress in gay garments, nor show outward signs of gayness; violation of this statute shall be punished as a misdemeanor." This imaginary law has a pretty clear meaning: you can't be happy or ebullient in or around a cemetery, presumably out of respect for the dead. A textualist would understand that this law did not have anything to do with homosexuals, and would apply it accordingly. (This law would likely be found unconstitutional under the First Amendment.)
However, the word "gay" has undergone significant linguistic drift since 1655. An educated public using the exact same word today now means something *very different* by it.
Now imagine the exact same law passed again, but in Utah in 1972: "No one in the vicinity of a consecrated cemetery shall be gay, nor dress in gay garments, nor show outward signs of gayness; violation of this statute shall be punished as a misdemeanor." This imaginary law *also* has a pretty clear meaning: no homosexuals near cemeteries, and especially no gay kissing in cemeteries, presumably now because they are "consecrated" ground. (This law would likely be struck down as well, but by the Fourteenth Amendment rather than the First.)
In both cases, we follow the guiding star of the textualist: the meaning of a text is fixed at the time it was enacted, according to the original public meaning at the time of its passage. However, because the meaning of the word is different in different times, the law objectively means something different in different times.
Does that make more sense?
Since the judicial branch cannot enact text at all (but can only interpret it), the judiciary can *never* alter the objective meaning of a text. Legislatures and voters can't alter the objective meaning of an enacted text, either, but what they *can* do is amend the enacted text, using established democratic-republican procedures. When they do so, we interpret the text of their amendment according to the meaning at the time the amendment was passed, not the time the original statute was passed.
If you start from the rule that the textualist believes that the meaning of a legal text is whatever the educated public would have understood its objective meaning to be at the time that the text was enacted, everything else naturally follows.
Hopefully that tracks better.
No reason to have spoken more on this in the body of the piece. I’m just curious as an avid de civitate reader who has spent the last few years being convinced that having Republicans appoint all of these originalist/textualist Supremes is a fine and good thing instead of ideological warfare. You’ve won me over to the ways of originalism. The example in this comment therefor makes perfect sense that the same words passed 100’s of years apart from one another would have different meanings and different effects. I’m still confused by the passage in the actual article though.
Reading it again it sounds like there were originally two lines in the 13th Amendment. One that originally meant that prison labor was OK and a second that meant something more obscure was OK. Then, after 100 years of ‘linguistic drift’ voters repealed that second sentence (thinking they were repealing the intent of the first sentence). At this point doesn’t the 13th amendment still have the original first sentence with the original first sentence’s meaning in it? Just because modern times thought removing that second line would be sufficient doesn’t actually mean that it is sufficient…… right? Would my an originalist reading of this scenario still hold that prison labor is allowed? Feels like only a “living constitution” reading that would disallow prison labor today.