The Great Clarence Thomas Blows Up Colorado Lawyer’s Argument for Kicking President Trump Off the State’s Ballot and Leaves Him Stumped. They should start a new TV show called “Stump the Moron Lawyer” after Justice Thomas retires, he could be the host.
Thomas: It would seem that particularly after Reconstruction and after the Compromise of 1877 and during the period of Redeemers, that you would have that kind of conflict. There were a plethora of Confederates still around, there were any number of people who would continue to either run for state offices or national offices. So, that would suggest that there would at least be a few examples of national candidates being disqualified if your reading is correct.
Murray: There were certainly national candidates who were disqualified by Congress for refusing to seat them…
Thomas (cutting him off): I understand that. But that’s not this case. I understand that Congress would not seat them.
Murray: Other than the example I gave, no. But again, your honor, that’s not surprising. States certainly wouldn’t have the authority to remove a sitting federal officer.
Thomas: So, what was the purpose of Section 3? The concern was that the former Confederate states would continue being bad actors, and the effort was to prevent them from doing this, and you’re saying that, “Well, this also authorizes states to disqualify candidates.”
So, what I’m asking you for, if you are right, what are the examples?
Murray: Well, your honor, the truth is states excluded many candidates from state office. We have a number of published cases of states that…
Thomas: I understand that. I understand the states controlling state elections and state positions. What we are talking about are national candidates.
There were people who felt very strongly about retaliating against the South, the Radical Republicans, but they did not think about authorizing the South to disqualify national candidates, and that’s the argument you’re making.
And what I would like to know is if you have any examples of this.
Murray (giving up): Many of those historians have filed briefs in our support in this case, making the point that the idea of the 14th Amendment was that both states and the federal government would ensure rights, and if states failed to do so, the federal government would also step in.
I think the reason why there aren’t examples of states doing this is an idiosyncratic one of the fact that elections work differently back then; states have a background power under Article II and the Tenth Amendment to run presidential elections. They didn’t use that power to police ballot access until about the 1890s. And by the 1890s, everyone had received amnesty and these issues have become moot.
Roberts: Look at Justice Thomas’s questions sort of from the 30,000-foot level. I mean, the whole point of the Fourteenth Amendment was to restrict state power. Right? States shall not abridge privileges or immunities. They won’t deprive people of property without due process, and they won’t deny equal protection. On the other hand, it augmented federal power under Section Five. Congress has the power to enforce it. So wouldn’t that be the last place that you’d look for authorization for the states, including Confederate states, to enforce implicitly authorized to enforce the presidential election process?
That seems to be a position that is at war with the whole thrust of the Fourteenth Amendment and very ahistorical.
