Yale law professor and author Akhil Reed Amar, one of my go-to commentators on all things constitutional, wrote an amicus brief for the Section 3, 14th Amendment Supreme Court case Trump v. Anderson.
Here is a taste of his piece today at The New York Times:
The Supreme Court will hear arguments on Thursday about whether Colorado may keep Donald Trump off the presidential ballot because of the storming of the Capitol on Jan. 6, 2021. The justices should seek a ruling that is originalist, modest and respectful of America’s democratic federalism.
In particular, they should focus on two phrases: “the first insurrection of the 1860s” and “the fifty-state solution.”
The first phrase explains why Mr. Trump’s conduct squarely falls under Section 3 of the 14th Amendment, which bars from any “office, civil or military, under the United States” any important public servant who, after swearing an oath to the Constitution, engages in an “insurrection” or gives insurrectionists “aid or comfort.”
The second phrase highlights the Constitution’s well-established structure for presidential elections, blending democracy with federalism. A 50-state solution allows each state to use its own distinct procedures and protocols for applying Section 3.
Who is to decide, and using what legal procedures, whether Mr. Trump himself must answer for Jan. 6?
The Constitution provides the answer. It structures a 50-state solution in which different states may properly use different procedures and protocols, and different standards of proof, to apply Section 3. Some states, like Colorado, may carefully police ballot access even in primary elections. Others will focus more on the general ballot. Still others may wait until vote tabulation begins. Yet another cluster of states may defer to Congress as the last actor when Electoral College ballots are unsealed. In past elections, Congress has at times refused to count improper electoral votes.
Under the 50-state solution, facts as found by a state trial court in Colorado permit that state to act. But other states using different procedures are free to act differently, or not at all. What happens in Denver stays in Denver, unless other states choose to follow suit. In 1860, Lincoln was not on the ballot in every state; ditto for Ralph Nader in 2000. Welcome to the Electoral College.
But what about democracy? The first-insurrection concept reminds us that those who attack elections cannot justly complain when they are disfavored in later elections. Turnabout is fair play. And the 50-state-solution notion reminds us that Americans have never picked presidents in a single undifferentiated national contest. Eight years ago, constitutional federalism made Mr. Trump president even though Hillary Clinton won millions more votes nationally. This time around, constitutional federalism may well disfavor Mr. Trump.
The entire piece is worth your time.