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Supreme Court may look to the Civil War to resolve whether Trump can be on the ballot

By 37ci3 Feb3,2024

WASHINGTON — In December 1868, in a packed courtroom in Richmond, Virginia, the former capital of the Confederacy, Chief Justice Salmon Chase ruled that defeated rebel President Jefferson Davis should not be tried for treason.

Little did anyone know at the time that Chase’s decision — in addition to another decision he authored the following year that addressed the same legal issue but reached a different conclusion — would reemerge from the mists of history to play a role in ongoing decision making. Controversy over the suspension of former President Donald Trump.

Both Chase cases — the other involving a black man seeking to overturn a criminal conviction — are on the docket ahead of the Supreme Court’s oral argument in Trump’s case next week. In each instance, Chase sat on a lower court, so he was not acting as chief justice of the Supreme Court.

Both included a rare modern discussion of Section 3 of the 14th Amendment, then recently enacted into the Constitution.

The provision was intended to prevent former government officials who joined the Confederacy from holding office after the Civil War. It says that those who previously took an oath to support the Constitution and then “join in sedition or rebellion” are no longer eligible to serve again.

Chase’s rulings have taken on new urgency as the Supreme Court hears Trump’s appeal to keep Colorado’s Republicans off the primary ballot. He seeks to overturn a Colorado Supreme Court decision that found him ineligible under Section 3 for his role in attempting to overturn the results of the 2020 presidential election in a series of events that led to the January 6, 2021 attack. Capitol.

“I don’t know that any case or any justice from the past will be the dominant type or talisman of what the court is looking at,” said Vikram Amar, a professor at the University of California, Davis School. Law filed a brief addressing Chase’s decisions.

But, he added, “If you’re trying to convince people of the understanding of the day, then you want to make sure you’re addressing what prominent people are saying and doing.”

The history is relevant in part because several members of the conservative-dominated Supreme Court cared deeply about how people would understand constitutional provisions when they were written.

Chase, who had his own ambitions to become president, was an anti-slavery Republican former governor of Ohio who had been appointed to the Supreme Court in 1864 by President Abraham Lincoln. Even as chief justice, he eyed the presidency, and historians say his decisions were swayed. political considerations.

Confederate President Jefferson Davis and Chief Justice Salmon Chase.
Confederate President Jefferson Davis, left, and Chief Justice Salmon Chase.Getty Images file

While Davis’ case was before him, Chase tried to win the Democratic presidential nomination, though that effort failed before he voted against proceeding with the charges.

Cynthia Nicoletti, a professor at the University of Virginia School of Law who has written a book about Davis’ trial, said in an interview that the argument adopted by Chase in the Davis case was “outlandish” driven by political expediency.

“I think it’s a smart maneuver for Chase to get out of business,” he said.

Chase accepted the argument by Davis’ lawyers that Section 3 was a form of punishment that clearly applied to the former Confederate president, thereby barring any prosecution.

The lawyers argued that Section 3 was “self-executing,” meaning that it applied to Davis automatically without Congress having to pass any law to enforce it.

Historians have concluded that Chase himself personally suggested Davis’s lawyers make this argument.

But the next year, Chase took the opposite approach in another case in Virginia, this one involving black criminal defendant Caesar Griffin. on his work was a Confederacy.

Griffin argued that Section 3 applied to the judge because he had previously taken an oath to support the Constitution as a member of the Virginia state legislature.

This time, Chase ruled that “legislation by Congress is necessary” to disqualify someone under the 14th Amendment, in part because of the broad implications of thousands of rulings made by similar Confederate officials to the judge in the Griffin trial. case

The question of exactly how Section 3 might apply is one of several legal challenges raised in Trump’s case, which could have far-reaching consequences if other states follow Colorado’s lead and remove it from the ballot.

Trump’s attorneys are citing Chase’s ruling in the Griffin case briefing, said it helped confirm “congressional executive legislation as the exclusive means of enforcing Section 3.” This is just one of several arguments that say the Colorado decision should be overturned.

The plaintiffs — six Colorado voters — responded own brief that Chase’s opinion was “not binding” and “does not plausibly support the contention that Section 3 is inapplicable here.”

They also noted Chase’s “contradictory position” in the Davis case.

The Colorado Supreme Court said Chase’s decision, dubbed the “Griffin case,” was unpersuasive, but Judge Carlos Samour relied heavily on his dissent.

“I find the holding in the Griffin case compelling,” he said.

Josh Blackman, a professor at South Texas College of Law who supported Trump’s brief, feels the same way, arguing that Griffin’s ruling effectively resolves the issue of how Section 3 applies.

If the Supreme Court is looking for a way to resolve Trump’s case without examining the meaning of Article 3 “insurrection,” he said, “I think the Griffin case is one way to do that.” Blackman added that Chase’s voice in the Davis case carried less weight because the full report of the decision was not published until years later.

Other legal experts strongly disagree with Blackman’s reliance on Griffin’s ruling.

William Baude and Michael Paulsen, Deciding Both Section 3 Cases, “Chief Justice Chase Wasn’t Shooting Straight” authoritative law review article argued that the provision was self-executing.

Ellen Connally wrote a long article on Davis and Chase while studying for her Ph.D. in history at the University of Akron 20 years ago. Like Nicoletti’s, his case is mentioned in briefs filed in the Trump case.

Connally thinks the court should look closely at history, but in the Davis case, “Chase was just looking for that loophole” to avoid some of the difficult legal questions that would have arisen if the case had gone forward, Connally said.

Chase’s decision had little practical effect.

He sat on a two-judge panel, and the other judge did not believe the charge should be dropped. Due to a tie, the case went first to Chase’s own Supreme Court under the rules then in place.

But then there was another twist. On December 25, 1868, outgoing President Andrew Johnson issued an amnesty to all Confederates, including Davis.

The charge was dismissed.

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By 37ci3

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