Six self-described originalists lead the U.S. Supreme Court: Thomas, Roberts, Alito, Gorsuch, Kavanaugh, and Barrett. Some critics assert that these Justices only use originalism as a cover for conservative policy making.  I do not join these critics. I view many of these Justices’ rulings as at least defensible under their judicial philosophy. One recent subject matter presents a glaring exception, however: Donald Trump. 

In this piece, I will not argue that originalism is good or bad. I will not argue that the originalist Justices are hypocrites or anything of the sort. Instead, I only intend to inform readers on why the originalist Justices missed the mark according to their own philosophy in two recent and strikingly important Trump-related cases: Trump v. Anderson and Trump v. United States.

In Anderson, a series of Republican and Independent voters in Colorado sought to remove Trump from the ballot under the theory that he was disqualified from holding the office of the Presidency under Section 3 of the Fourteenth Amendment. Section 3 says that anyone who swears an oath to support the Constitution — and then engages in insurrection or gives aid to those who engage in insurrection — cannot again hold office.

After a trial, a Colorado judge found that Trump did, indeed, engage in insurrection after swearing to support the Constitution. But she held that he was not disqualified because, bafflingly, she felt Section applied to every federal office except that of the Presidency. The Colorado Supreme Court corrected this bizarre mistake on appeal, holding that Trump was disqualified from holding the office of President as one of the oath-breaking insurrectionists contemplated by section 3, and could thus be removed from the ballot. 

Yet, the U.S. Supreme Court unanimously overturned the Colorado Supreme Court ruling for a reason not raised by the parties by that point in the litigation: apparently, states do not have the power to remove from their ballots disqualified Presidential candidates. All nine Justices rallied behind this argument because allowing states to remove oath-breaking insurrectionist Presidential candidates would create the problem of a “50-state patchwork” where some states remove the candidate and others do not. 

This ruling was odd from an originalist perspective for several reasons. 

First, the Constitution actually mandates a 50-state patchwork, rather than prohibiting it. A Presidential election is not a national election for the candidate.  If it was, Hillary Clinton would have been President in 2016. Rather, it is 50 state elections for 50 slates of state electors (plus D.C.), who then choose the President.  

Second, the Constitution grants states control how to pick these electors, and states therefore establish their own procedures for how and when a candidate gets booted from a ballot for failing to meet qualifications. Would anyone really find it unconstitutional if Colorado had procedures to remove a twelve-year-old kid from its ballot? 

Third, the text of Section 3 nowhere makes a distinction between federal or state officers, instead grouping them together. Surely, the Framers would have noted such an important issue if they meant to force states to allow oath-breaking insurrectionists to stay in the running.

Finally, outside the text, there was no historical precedent for the rationale that the Constitution forces states to keep disqualified Presidential candidates on the ballot.  None.  

These critiques are not just my own. Instead, some of the most prominent originalists in the country echo them. For example, William Baude and Michael Paulsen are two conservative legal academic powerhouses who hail from the Federalist Society. They wrote the seminal article on Section 3 disqualification, concluding unequivocally that Trump was ineligible to hold the Presidency.  

The U.S. Supreme Court similarly departed from originalism in Trump v. United States — the recent immunity case. This time, the Court was divided on political lines, with all six originalists stating Presidents were largely immune from criminal prosecution and the three liberal justices lodging some of the harshest dissenting words in recent memory.  

The case again dealt with Trump’s attempt to stay in power despite losing the 2020 election. This time, it dealt with Jack Smith’s federal indictment largely focusing on Trump’s scheme to submit uncertified slates of electors to Congress, premised on baseless claims of mass election fraud. The immunity question had already gone through a unanimous, bipartisan three-judge panel of the D.C. Circuit, widely regarded as the best federal appellate court in the nation. And the D.C. Circuit held, unsurprisingly for us history buffs, that America had no kings. Therefore, a former President could obviously be prosecuted for employing fraud to stay in power after losing an election. 

The originalists of the Supreme Court were less concerned with this seemingly obvious historical conclusion. Five of the six originalists stated that: (1) a President has absolute immunity for core official acts, broadly defined; (2) he has presumptive immunity for anything else within the outer bounds of his official acts; (3) he has no immunity for unofficial acts; (4) a court determining whether an act is official cannot inquire into the President’s motives; and (5) prosecutors cannot even reference the official act in an indictment or to a jury to provide context to the unofficial acts. The sixth of the originalists, Barrett, did not sign on to the last two points.

Again, like Anderson, this ruling cast originalism aside for several reasons. 

First, as all good fans of the musical Hamilton know, Alexander Hamilton was the star of the Federalist Papers, a series of essays defending America’s then-new Constitution to the public. Hamilton wrote in Federalist 69 that unlike the “king of Great Britain,” the chief executive of the United States would “be liable to prosecution and punishment in the ordinary course of law.” He wrote in Federalist 77 that “subsequent prosecution in the common course of law” would be a check on “abuse of the executive authority” in addition to impeachment. And James Wilson, the Framer with the best claim to being the Presidency’s principal architect, told the Pennsylvania Ratifying Convention in 1787: “the executive power is better to be trusted when it has no screen . . . Far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”

Second, the Constitution’s text demonstrates that the Framers intended no immunity. Notably, the Framers knew how to provide civil and criminal immunity, as they did in Article I, Section 6 for members of Congress’ legislative acts. They also state outright in Article I, Section 3 that, even where a President is impeached and removed from office, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” You read that right: the Constitution explicitly says a President can be prosecuted. Nowhere does it make a distinction between core and non-core functions, official and unofficial acts, or make rules of admissible evidence regarding official acts. Nowhere. 

I cannot read the Justices’ minds as to why they ruled as they did. And perhaps some readers are happy with the results of these two cases. But one thing is clear: these were not originalist rulings.

Thomas C. Mandracchia, Esq. is a Penn Law graduate, former prosecutor, and litigator.