Originalism When It Suits You

Historians filed an amicus brief in the recent Colorado disqualification case reaching the Supremes.  The Court found only Congress can disqualify a candidate for federal office. The historians, reviewing the history of the passage of Section 3 clearly disagree. Allan Lichtman at American University who signed the brief told interviewers their brief,“decisively proved not a single one of the thousands of ex-Confederates who were disqualified under section three of the 14th amendment were disqualified under an act of Congress. They were automatically disqualified, as Jefferson Davis himself recognized in his trial and the two judges in the trial agreed.”

Because Section 3 has been so rarely at issue, this fundamental misconstruction of the Constitution is likely to stand for a century unless Congress passes legislation enforcing Section 3 of the 14th Amendment.  

Allowing individual states to control access to their voting ballots, which they already do when it comes to age and residency, would not have created an unmanageable patchwork of disqualifications.  The first state disqualification case to reach the Supreme Court would decide the matter, at it did with the Colorado case; Maine and Illinois promptly fell in line with Supreme Court's decision.   This is not the first time the MAGA court has perverted the historical record. They did something similar in District of Columbia v. Heller, in which the Court construed the right to bear arms as an individual right not a right of a state to raise an armed militia, a position not supported by the historical record. 

The MAGA majority will get another crack at derailing Trump's prosecution for the insurrection in a case styled United States v. Fisher, set for argument before the immunity case.  There the defendant argues that the statute (§1512) prohibiting obstruction of an official government proceeding is limited to the impairment of evidence.  If the Court decides he is correct, despite the clear legislative history to the contrary, the decision would moot the criminal obstruction counts in the indictment against Trump.

Besides speeding up decisions that favor Trump's candidacy and slowing down those that do not, this Court seems only to pay lip service to so-called "originalism" in its interpretations of the Constitution, invoking the doctrine when it gets them to the result they want. The Roberts Court will go down in history as one of the most corrupt in the nation's history.