"Griffin's Case" and Trump

It’s all about the Chases

Once more into the breach—and this will be brief (ha)—created by the case to be heard by the Supreme Court tomorrow regarding Colorado’s applying Section Three of the Fourteenth Amendment to throwing Trump off the ballot. I expect to hear some reference to the decision in Griffin’s Case (1869), where Chief Justice Salmon Chase, riding circuit in Rockbridge County, Virginia, ruled that the section is not in fact self-executing—that contrary to what everyone else has been saying, there would have to be legislative action (taken by Congress, according to Justice Chase) in order to make it operative by a state. You can read about Griffin here, read the ruling itself here.

What I find interesting, from a historical point of view, not a legal one, is the confirmation I keep getting, mainly from people’s desperate efforts, from the very beginning, to make sense of the thing, of how operationally un-thought-out the section was by its framers. That’s not the kind of impression historians and lawyers express in their amicus briefs, because it doesn’t serve a cause. But it’s my brief and my cause to say that some of this constitutional stuff and the arguments about it are just plain goofy.

I can definitely envision some members of the Court majority leaning on Griffin. Yet that same decision seems to me to also imply that the term “officer,” as used in Section Three, could definitely be taken to refer to elected rather than only appointed officials; the lawyers’ brief that appeals to Griffin, filed by the conservative side, claims the term wasn’t intended that way. Round and round and round she goes.

Trying to retroactively read the minds of people who may not have been reading their own minds all that well at the time seems like a mug’s game. But hey, here we are. I’ll be fascinated to see the justices trying to process the exhumation of this weird piece of work.

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In case you didn’t get to my previous post, it’s much better now (my apologies to those of you who did!)—to me maybe one of the better things I’ve done for this blog. So fwiw here’s the latest version:

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