The Originalist Weighs In

 A law professor has argued in the Times that the 14th Amendment's prohibition on insurrectionists was not intended to cover the presidency. The professor - a Federalist Society drone - makes a superficially compelling argument that the framers of the 14th did not want to include the office of the presidency, because they did not include the office of the presidency. Prof. Lash offers this nugget to start:

When Congress passed the 14th Amendment, there wasn’t a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president. Instead, Republicans feared that the leaders of the rebellion would use their local popularity to disrupt Republican Reconstruction policy in Congress or in the states. Section 3 expressly addressed these concerns and did so without denying loyal Americans their right to choose a president.

OK, why didn't they worry about Americans electing Jefferson Davis or Alexander Stephens president? Because in 1860, the North had proven that they could elect a president without any support from the South. That's a huge reason why the South seceded: they had lost control of the presidency. Instead, the 14th Amendment prohibits electors (in the Electoral College) from being insurrectionists. Presumably, stopping Confederates from becoming electors combined with the North's population advantage would prevent insurrectionists from becoming president.

What's clearer - and I agree with Lash here - is that they dreaded former Confederates allying with Northern Democrats in Congress, because Congress was effectively more powerful than the presidency in the 19th century. The ban on insurrectionists was both specific to the immediate events of the Civil War, but also to the broader fabric of the United States. If there could be one Civil War, there might be another, and if that should happen, future insurrectionists should be banned as well.

What Trump plotted, encouraged and rhetorically participated in on 1/6 was not something the framers of the 14th could have imagined - although the ban on Confederates as electors comes close. The specifics of each case can be unique without the clear intent of the framers having to spell out every contingency.

We have seen the Supreme Court use "Originalism" to strike down Roe and other rulings and laws when it suits them. Basically, originalism ask the justice to channel the spirit of the dead writers to find out what they should do today. A reasonable "originalist" interpretation of the 14th would led one to conclude that Trump engaged in insurrection. The stronger argument, of course, would have been if the GOP Senate had convicted Trump at his second impeachment. That would have solved everything. They, however, are cowards So we are left with the Courts.

Lash is, I'm sure, an Originalist. I doubt they would let him in the Federalist Society if he were not. He has, however, decided to let his own preferences about Trump and the GOP create his interpretation of the intent of Thaddeus Fucking Stephens. Effectively, "the framers of the Constitution turn out to believe what I want them to believe". 

That's Originalism at its finest.