All posts tagged: Michael Stokes Paulsen

The Supreme Court Once Again Reveals the Fraud of Originalism

The Supreme Court Once Again Reveals the Fraud of Originalism

Published by skeptic

The justices did not want to throw Trump off the ballot, and so they didn’t. Illustration by The Atlantic. Sources: Eric Lee / Bloomberg via Getty Images / Getty. March 4, 2024, 3:15 PM ET It was always unlikely that the Supreme Court, with its right-wing majority, would uphold Colorado’s ruling throwing Donald Trump off the ballot merely because he tried to execute a coup after losing the 2020 election. As the unanimous per curiam ruling issued Monday overturning Colorado’s decision suggests, a Court made up of nine liberal justices may not have done so either. That’s because sustaining the Fourteenth Amendment’s bar on insurrectionists holding office as written would put the justices in the difficult political position of looking like they were deciding an election. Such a thing could undermine popular support for the Court as an institution. It might prompt Congress to act to constrain the Court’s power. It could have led to a massive and potentially violent backlash from Trump supporters. The unanimous part of the decision found that states do not …

Don’t Read the Colorado Ruling. Read the Dissents.

Don’t Read the Colorado Ruling. Read the Dissents.

Published by skeptic

When I review divided appellate-court decisions, I almost always read the dissenting opinions first. The habit formed back when I was a young law student and lawyer—and Federalist Society member—in the late 1980s, when I would pore (and, I confess, usually coo) over Justice Antonin Scalia’s latest dissents. I came to adopt the practice not just for newsworthy rulings that I disagreed with, but for decisions I agreed with, including even obscure cases in the areas of business law I practiced. Dissents are generally shorter, and almost always more fun to read, than majority opinions; judges usually feel freer to express themselves when writing separately. But dissents are also intellectually useful: If there’s a weakness in the majority’s argument, an able judge will expose it, sometimes brutally, and she may make you change your mind, or at least be less dismissive of her position, even when you disagree. Give me a pile of Justice Elena Kagan’s dissents to read anytime—I love them even when she’s wrong, as I think she often is. You can learn …

Trump Is Constitutionally Prohibited From the Presidency

Trump Is Constitutionally Prohibited From the Presidency

Published by skeptic

As students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president. This protection, embodied in the amendment’s often-overlooked Section 3, automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies. The historically unprecedented federal and state indictments of former President Donald Trump have prompted many to ask whether his conviction pursuant to any or all of …