Somewhere beyond this mortal din, the late Justice Antonin Scalia is smiling. His legal formalist ways won a victory last month with Denver District Judge Sarah W. Wallace’s ruling in the suit over whether former President Donald Trump is constitutionally prohibited from running for reelection.
Wallace interpreted the Constitution the way Scalia would have, ignoring what some might see as common sense, and focusing instead on word choice and selected bits of history to rule that the 14th Amendment ban on insurrectionists holding public office doesn’t apply to presidents.
The judge gained wide attention for finding that Trump engaged in an insurrection. That might matter during an appeal. But, ultimately, she handed Trump a victory wrought from word manipulation, holding that the president is not “an officer of the United States” who took an oath to “support” the Constitution and the ban applies only to people who are.
Formalists favor “textualism,” the study of word meaning in place of the consideration of concepts and their consequences. Formalists claim this approach is more objective, but Wallace’s word parsing actually proves that Humpty Dumpty was right to say, “when I use a word … it means just what I choose it to mean — neither more nor less.”
Wallace wrote that the president of the United States isn’t an “officer of the United States” because it’s “counterintuitive” to think of the president as a “mere civil officer,” and because in some places in the Constitution the law distinguishes between the president and other officers of the government.
The judge’s intuition is hardly objective. And on examination, her second judgment turned on provisions that refer at best to the president and “other” officers or the president and “all officers.” Being among “all officers” or there being “other” officers doesn’t mean you aren’t one. So Judge Wallace’s view wasn’t compelled by the words. It was subjective.
Wallace’s word work got worse. Insurrectionists are disqualified if, before their insurrection, they took an oath to “support” the Constitution. Without elaboration, Judge Wallace held that this disqualification doesn’t apply to presidents because they swear to “preserve, protect, and defend” the Constitution, not to “support” it.
Apparently, in the judge’s view, you can preserve, protect and defend something without supporting it. This is formalism through the looking glass.
Formalists also advocate an “originalist” search of the history surrounding the adoption of the law as the best indication of what the law means. Judge Wallace proved that, like the word parsing, this search can also take us anywhere we want to go.
Judge Wallace admitted that the only thing said about the disqualification provision in the Congressional Record was that it did apply to the president. But she still gave greater weight to the historical fact that an early specific reference to the president was later dropped from the amendment. She didn’t address the plain possibility that the later drafts broadened the prohibition to embrace everyone who was “an officer of the United States,” including the president.
Wallace also seized on an 1867 attorney general’s opinion that the language “officer of the United States” was intended in its “most general sense” and included all “civil officers of the United States.” Inexplicably she said it was “obvious” this embraced only lower echelons of the government.
So much for a plain reading of history. Judge Wallace’s opinion proves that subjectivity is a foible of formalism at least as much as it is part of any other approach to legal interpretation.
She could have used common sense instead. After looking at the words, Wallace could have looked at the basic principle being vindicated in the disqualification provision and whether her ruling vindicated it.
No party to the case denied that the provision reflected that we don’t want people who have tried to overthrow our democracy to wind up running it. Judge Wallace didn’t address how she could vindicate this principle while exempting from disqualification the highest office of all. If she had, she might have confronted the absurdity of her conclusion.
Wallace has left a member of a low-level body like the Railroad Retirement Board who attacked the Capitol barred from serving on his local board of education, but the president who urged him into that attack free to again hold the most powerful office in the land.
Wallace’s formalism left her myopically focusing on snippets of history and word meaning rather than on common sense. But legal opinions aren’t merely subjective epitaphs judges compose from dead words. They should vindicate the living values reflected in a law. By failing to connect with them, Judge Wallace’s opinion fails us.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, “The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.”