. . . that yesterday's oral argument at the Supreme Court, about the 14th Amendment's section 3, vividly illustrates why I do not agree with using the technique of "textualism" in the interpretation of the Constitution: it can produce results at odds with the history of the matter. Three thoughts followed:
No. 1: Textual analysis ignores or even flouts history, the history of the United States. None of the justices evinced concern about, or showed any attention to, the problems the 14th Amendment was formulated and adopted to address: that is, to prevent for the future any repeat of the Civil War, which was the ghastly, costly, and ultimate form of insurrection. Section 3 provides for exclusion of those persons who in the past or in the future engage in insurrection from eligibility for election, in order to prevent any recurrence of insurrection. The justices paid what happened on January 6, 2020, no attention.
No. 2: Textualism focuses exclusively on the exact words of the document, to absurd lengths. For instance, an ordinary American is going to find no meaningful distinction or difference between "office" and "officer," the latter being one who holds an office. The fact that the Framers and the authors of the 14th Amendment used the two terms variously is not of any real consequence, although textualists think because the two words are different (by one letter), it makes a difference. No.
No. 3: My guru was the late Richard B. Bernstein, author of excellent short biographies of Adams and Jefferson and a fine book titled Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (1995). He makes the point that the Framers were normal human being, of high intelligence, yes, but not gods, who were attempting a grand experiment. They hoped that the Constitution's broad provisions and words they used would serve as guidelines, not as some sort of Sanskrit requiring the kind of hair-splitting interpretative exercises such as we heard at the Supreme Court yesterday. They drafted "from whole cloth," without a lot of explicit models of language, and they did the best they could. And the same is true of the drafters of the 14th Amendment. The language is a little rough and imprecise, and the reason "President" is not specifically listed with the other officers subject to Section 3 was because they could not imagine that a person who had been elected and was serving as President could be so faithless as to try to seize political power when he lost re-election--that was inconceivable to them, although the unimagined demonstration of such faithlessness materialized before all of our eyes on January 6, 2020. The word "President" was also not included in the list contained in Section 3 for the same reason they did not include the sentence "The sun comes up in the east and goes down in the west."
So I criticize the High Court’s use of textualism, rather than history. American history clearly lays out the problem that was to be solved and explains what the authors of the 14th Amendment were thinking when they wrote it to solve that problem of future insurrection. Textualism will not provide the answer that is true to history in the forthcoming SCOTUS adjudication of Trump v. Colorado.