The Constitution, Trump, and the Struggles of U.S. Courts to Interpret History with Jack Rakove

The Constitution, Trump, and the Struggles of U.S. Courts to Interpret History with Jack Rakove

Important questions regarding Trump: can he be prosecuted for criminal wrongdoing when he was serving as president, whether the two impeachment trials matter, and if Colorado’s decision to disqualify him from the state’s primary ballots is constitutional. Pulitzer Prize winning historian Jack Rakove joins Pam and Rich for a discussion on the U.S. Constitution, originalism, charges against former president Donald Trump, and the role of historians in constitutional litigation.

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Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us every day. I’m Rich Ford, and I’m here with Pam Karlan. Don’t forget to subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all of our episodes as soon as they’re available.

While lawsuits involving President Trump add up, some people may be wondering which ones are important—whether any of them are important and why they should pay attention. But if you care about the United States, you also care about the Constitution and a lot of the controversy around these lawsuits involving Donald Trump come back to the Constitution.

So yes, it is important and you should pay attention. To explain why, we’re going to talk today to our colleague Jack Rakove, a historian who is well versed in these issues. Jack’s work focuses on the origins of the American Revolution and the U.S. Constitution, and the role of historians in constitutional litigation.

Jack’s been looking at some of the most important questions involving President Trump, such as: whether he can be prosecuted for criminal wrongdoing when he was serving as president, whether the two impeachment trials matter, and if the state of Colorado’s decision to disqualify him from the state’s primary ballots because of his involvement in the insurrection on January 6th is legal. Jack is Professor of History American Studies and a Professor of Political Science Emeritus here at Stanford. He’s also taught at the Law School and is the author of many prize-winning books. 

Jack, thanks so much for joining us today. I’d just like to start with a question that may be on the minds of some of our listeners, which is whether President Trump can be prosecuted for the same things that he was unsuccessfully impeached for, or whether or not this is some kind of double jeopardy?

Jack Rakove: I think it’s absolutely clear that this is not a double jeopardy kind of issue. Impeachment and a criminal trial for the acts that warranted the impeachment are two distinctly different processes. They should really have two different sets of regulations. And they would also have two different kinds of outcomes.

Facts could become available after a president was impeached but not convicted, or after a president left office, that I believe would still warrant pursuing an impeachment proceeding. You probably know that Judge Luttig, who’s done a lot of good work in general on the Trump-related issues, I think made a major error when he argued that once he left office, President Trump could not be impeached. The Republicans in the Senate used that as a kind of fig leaf to gut the second Trump impeachment trial. But I think the key thing to understand is that the different proceedings are just qualitatively and substantively different in nature and I think a big source of confusion has arisen, certainly for the American public, and I think, to some extent, for political commentators, by trying to conflate all the due process rules that we apply to criminal trials to the kinds of rules and concerns and considerations that ought to apply to an impeachment.

I think one big problem with the impeachment clause is that in a certain sense, we’ve over legalized it. Let’s go back to Nixon’s impeachment for Watergate. I mean, it took about a year and a half from the original discoveries in Washington in January 1973 to Nixon’s removal from office by resignation with his impeachment and trial almost certain.

And a lot of that was bogged down with the disputes over the tapes. Were they protected? Did Congress have the right to see them? And so on. When you have an impeachment, it is the public good of the Republic that is at stake. The circumstances that warrant an impeachment suggest that there should be a kind of urgency to decision-making to which due process norms often do not apply—for reasons historians understand, and lawyers know much more intimately and better than I do.

So I think we have had this kind of crazy conflation of two very different kinds of proceedings, and because the outcomes are so different, and the purposes are so different, to, say, a trial following impeachment, which led to an acquittal, is double jeopardy. Just strikes me–I’ll use a Yiddish word that I’ll translate: It’s complete and utter narrischkeit, or foolishness [Karlan interjects joke], and ferkakte, but it’s not ungepatchka

Ford: Sometimes it’s said that impeachment is a political process, whereas a criminal trial is a legal process. And maybe that clarifies some of the reasons that these processes are so different and why it is not double jeopardy. Another question that is now on everyone’s mind is whether or not the 14th Amendment applies to the office of the President and whether or not it might deem President Trump unqualified to hold office, as the Supreme Court of Colorado has held recently. 

Rakove: That’s a great discussion, which I’ve been trying to follow carefully. I can’t say I’ve contributed much to it myself. I’m speaking more as a late 18th- century than a mid-19th-century guy, though I am trying to stay on top of this. I think, again, this is pretty much a no brainer. I mean, there are ample references. I mean, putting Section 3 itself to one side, and what might strike us as a curious omission of reference to the presidency, there are nevertheless ample references in the rest of the Constitution to the President—and also the oath of office—to the President as an officer or holding the office. I mean, how can you hold an office without being an officer? 

And people on the historical side, people like Mark Graber and Gerard Magliocca, who is actually a Stanford BA, but not my student, have worked on this fairly intensively. Mark Graber has just published a big book on all the other purposes of the 14th Amendment once you get past Section 1. The purposes of Section 1 are obvious. It’s Sections 2, 3 and 4, the codicil of Section 5, which Mark argues, I think quite rightly, better situates contextually in what the purpose of the amendment was. So it seems to me, if you take the usual interpretation that you have to make all provisions of the Constitution consistent with one another, there’s ample reason to think that the President is indeed an officer. I mean, what else could he be if he’s not an officer? He is, in fact, the sole holder of the executive power, as the vesting clause of Article 2, the presidential article, says, and I think the insurrection case is pretty much the same. 

Again Mark Graber, for those who follow the literature, has a couple of really lengthy posts on this on [the online publication] Balkanization, which goes through this virtually chapter and verse and is based on the book that he’s just published. So, the civil war is certainly an insurrection and a rebellion–squared. I mean to the maximum extent possible. But since we now know so much about what Trump’s purposes were, and also the amount of planning that went into both the pre-January 6th litigation, then the final maneuvering going down to what happened on January 6th, the insurrection question strikes me as a no brainer as well. 

And Rich, if I could amplify this in one way–because I do think about this more as a historian than as a lawyer–is that there can be these kinds of narrow linguistic obsessions that often seem to me to characterize a lot of legal analysis. Like, “Well, let’s get this very technical argument about ‘officer.’” You can’t take the text out of constitutional interpretation. By definition, the text is the focal point, or at least the initial source of what has to be interpreted. But all historians reason —when we read texts, we try to read them as carefully and closely as we can. And I’ve learned from hanging out with lawyers, particularly that a lot of the stuff I did with your former dean, Larry Kramer, because we taught together, and I just learned so much from Larry and bouncing our ideas off of one another.

There are a lot of things about legal decision making I won’t really understand or grasp. Take jurisdiction. That’s not the more complicated side of the equation, but for historians, when you read a text, de rerum natura, the order of things, our way of thinking is always contextual. You do the best job with the text that you can. You make sure you look at the use of ‘and’ in free speech and the First Amendment – you know “peaceably assemble” and “petition.” You have to think about that, but we reason contextually and contextually means you’ve got to reconstruct the debates. You’ve got to try to do the best to reconstruct the contemporary commentary, which is exactly what Graber and Magliocca have done in their analyses here. So I do think that historians like myself, and, you know, my young colleague Jonathan Gienapp, and everybody works out particular problems. We have a lot to contribute to the story, but we contribute first and foremost, a knowledge of context. 

Pam Karlan: Can I jump in here, Jack, and ask you about this, because it’s one of the things I’ve been thinking about a lot. There are historians who spend their whole lives studying a particular period and the ways to think about it. And what seems to be happening now, in part because the Supreme Court claims to be an originalist court, is people jump in who have spent like 14 minutes thinking about a clause, and they say, “I found this one example from 1789,” or from, you know, 1807, and it proves something.” You’re part of a group that the Brennan Center just announced for historians to be helpful in helping courts and lawyers think about how history can be used. Could you say a little bit about that?

Rakove: Oh, I’d love to. Although, we’re still getting organized. We were just announced a few days ago. The publicity has gone out and we did have one meeting in late September to kind of get together and start comparing notes. So there are a couple of different ways to pose this. Pam, there is a big debate about originalism and, as you know, and I’m sure many of your listeners probably know, there has been a big fissure in originalist circles between people who want to think historically, as I do, and those who really want to think primarily linguistically.

There is what’s called semantic or public meaning originalism, which says that, I think its assumption is that the evidence of history, though interesting in itself, is often inconclusive, and it’s complicated, and it may not always give you the fixed, determined results that originalists want to try to get.

On the other side of the equation–when I first started thinking about this problem, I first started thinking about originalism before Paul Brest invented the term–I started thinking about it in the early 1970s and it seemed to me at the time that if you want to be an originalist, all questions about what constitution originally meant must be inherently historical in nature.

And when I started working on my big book, Original Meanings, essentially my idea was to come up with what would be the method of answering the question of “what did the clause originally mean?” How would you do it? It’s a kind of analytical problem. And I thought historians should pay attention.

I think the problem is people who now are committed to originalism ideologically for a whole array of purposes, political or doctrinal or whatever, I think they found the history to be too difficult or maybe to be a bit too complicated and maybe a bit too multi-vocal and indecisive. So they come up with what strikes me as being an interesting, but in some ways very problematic notion of what’s called semantic or public meaning originalism, which rests on modern theories of linguistics, which were, among other things, unavailable to the authors of the Constitution. So it depends on which linguistic theorist you’ve read.

And it seems to me, the more I think about that, the more it seems to me that far from originalism being a constraint on modern interpretive discretion, the linguistic game really opens it up. I mean, Pam, you know this from your background as a humanist: If you’re a historian, in the end, you need to have some source, some original record, that will sustain or at least document, provide evidence for any claim you want to make.

When you start playing language games, that obligation, I think, fades and you’re kind of delving into a realm of linguistic theory. But anyhow, so our agenda is to say that a lot of this comes specifically out of both the Bruin decision and also the Dobbs decision, which I think in some ways are qualitatively different, and I’m not sure I’d reason about them in exactly the same way, but in both cases, the Court is saying in a somewhat muddled and vague way that we need to have a turn to history and tradition.

So the invitation is out there, and I think historians like myself who’ve thought about this–and I’ve been involved, I’ve been the main author of five or six briefs now, including I’m very proud of having been the main author of the brief in DC v. Heller, which I think is actually—you know, like Jefferson, I probably want that on my tombstone—So we are trying to start thinking about what we can do both as a matter of civic responsibility and professional opportunity.

Ford: Jack, could you tell us a little bit more about the Supreme Court’s use of history and maybe you could use the Heller brief as an example of the way the Supreme Court’s using history and how you think they should use it.

Rakove: Let me start with Heller and then push me where you want to go. I tell you, as a historian, I think that we should not use the term, the case was “wrongly decided.” I mean, to our way of thinking, the case was decided. That chapter is played. Whether it’s right or wrong, I’m not prepared to go there. But I do think, in Heller, that case was wrongly decided, and here’s why. I mean, I won’t go through my own back history here, but I did do a long article in the Chicago-Kent Law Review from a conference that was held in 2000 or 2001, on the whole constitutional issue of the regulation of firearms. And I learned a lot from doing the article that I had not known or even thought about before.

The main thing I learned, the biggest takeaway I would make, goes something like this: It would be to reestablish the context within which the Second Amendment was framed. What issue was at stake? The debate was always, to the kind of 99.44 percent range, always about the militia. It was always going to be about the status of the militia under Article 1, Section 8, I think it’s Clause 16, which gives Congress … which in fact recognizes that the militia is a state- based institution, but Congress is going to have a supervisory authority to determine, which it uses its discretion, how it will be organized, armed, and disciplined. And this leaves open questions about the future status of militia, and Anti-Federalists, actually–with a literature that really goes back to Machiavelli. Machiavelli was, in some ways, in terms of ‘lowercase r’ republican political thinking, Machiavelli was the major theorist of the militia in a republican society. And the prefatory phrase “a well regulated militia being necessary to the security of a free state since,” since Pam is in Firenze right now, the best term used there is uno stato libero, a free state. And it’s a Machiavellian term. I begs the question of what I actually mean by a free state, which is itself an independent problem.

So when I finally went through all the sources, they are predominantly squared, concerned with the status of the militia. There are a couple oddball exceptions. The most famous is the dissent of the minority Anti-Federalists at the Pennsylvania Ratification Convention. They were worried about hunting and so on. But those arguments don’t go anywhere and they don’t form it. And then of course the flip side of this is the major outcome in Heller, and then it’s amplified in McDonald and then more recently in the Bruin v. New York rightful association case, and we’ll see what’s going to happen to the Rahimi case. You know, the argument here is that what the Second Amendment did though, was really to constitutionalize a common law right of self defense.

There’s no evidence from that period–you know, from the late 1780s, 1790s–there’s no evidence that anyone at the time thought the Second Amendment had anything at all to do with a personal right of self defense. 

Pam Karlan: So the Supreme Court’s had a series of cases recently which are about politics and the regulation of politics and how that kind of intersects with their professed originalism. So, for example, they have the Chiafalo case about faithless electors and could states bind the electors to decide. They had a case called Rucho v. Common Cause in which they said, well, the Framers would not have been worried about political gerrymandering, which, of course, is a little crazy since, as I understand the Framers, they thought they were setting up a system that wasn’t going to have political parties at all, which makes it a little strange to think, but they didn’t care if political parties emerged in this.

And then, of course, there’s the Moore v. Harper case, which I know, Jack, you have particular interest in, and that’s a case about something called the independent state legislature doctrine. Could you tell us a little bit about how you think the court thought about history in that case?

Rakove: You know, Pam, for obvious reasons, I’m so happy you asked me this question. I’m going to toot my own horn again, but I’ve been the main author of three reapportionment-related cases going back to Vieth v. Jubelirer. [short tangential cross-conversation deleted for clarity] And then also with the support of the Brennan Center, I was the lead author in the Moore v. Harper case with its independent state legislature theory, which again is another one of those examples of work my way around this, of how if you take a merely linguistic approach, you come up with arguments that, from a historian’s perspective, are A. deeply counterintuitive, B. badly flawed and really probably not worth very much at the end of the day.

So let me do a quick bit of history here because I have a whole chapter in my book Original Meanings on representation, which the starting point there is that it was a commonplace of 18th-century American thinking that a representative assembly, or let’s say the lower house of the legislature, should be, these are the terms I used, a mirror, a miniature, a portrait, or a transcript of a larger society.

John Adams, for example, used that language in his influential pamphlet, Thoughts on Government, in 1776. For a long time I wondered where the phrase came from. Turns out it actually came from an English, a pro-Parliament polemicist during the English Civil War of the 1640s, a guy named Henry Parker was actually the guy who came up with this image which the Americans kind of bought into, and that became something of a cliche in American political thinking, the idea that a representative assembly should be a mirror, miniature, portrait transcript. That’s why just in a general sense, you put all the reapportionment cases together, it strikes me as being either deeply problematic or, since we’re using Yiddish today, completely meshuggah–you know that the Court wants to avoid getting involved in gerrymandering. I mean, I do think it was a fundamental–with or without political parties–you know, political parties obviously refine and complicate the question, but whether you think about this in terms of party, or just think about it in other terms.

But the idea of a kind of one person, one vote, what we now call ‘one person, one vote’ standard was–not just implicitly—was part of the conceptual apparatus of the founding generation. So for the Court to say—I think Robert’s phrase, in one of the cases, I think the one involving the efficiency standard, where it was, ‘this is somewhat sociological,’ that’s gobbledygook, you know, and, you know, Roberts was a history major. At Harvard, he almost could have been my student, although he wasn’t. It didn’t work out that way. But in any case, you know, the idea, the court’s refusal strikes me as being, on historical grounds, deeply problematic.

So there are things I can say about different cases, but that’s the jar point. Let’s go to, let’s go to the independent state legislature decision. So again, the logic of that case takes off directly for the text of the elections clause, which I guess is what Article 1, Section 4, if I remember correctly, of the Constitution, and we don’t have to go back to the whole text. One of the curious things about the opinions —not about the brief we submitted, because in the brief we submitted, we’ve made a big deal about this. If you want to ask, ‘what was the purpose of the elections clause?’ Okay, here, I need to back up here a second. The underlying theory for the proponents of the independent state legislature theory was that the Framers had placed a high value on maintaining the superior, supreme authority of the state legislatures in terms of determining how congressional districts, or for the House of Representatives, how people are represented in the House of Representatives and so on, to the exclusion or to, let’s say, to the minimization of the other branches of government playing some kind of advice and advisory contingent role, depending on circumstances.

And of course, the COVID pandemic and the disruption it created, would be one kind of circumstance that you might want to have other branches of government capable of responding to in a short term way. So what struck me as being really strange about the opinions is that no one discussed the debate in the federal convention on the Election Clause, as is recorded in Madison’s Notes of Debate, which remain our dominant source for the debates at the convention, though, if you know Mary Bilder’s book, Madison’s Hand, you realize historians are asking some interesting questions about, are Madison’s Notes equally valid for every every period from late May down to mid September? 

But what Madison’s Notes seem to reveal, and the exact citation for those of you who want to read it online, if you go to the second volume of Max Farrand’s Records of the Federal Convention of 1787, pages 240 and 241, there are five or six speakers, and Madison seems to have been the most long-winded or at least certainly wanted to have his own thoughts recorded and memorialized.

But what the whole debate reveals, whether you emphasize Madison’s remarks on the one hand or just what the overall context is, it’s the doubts and suspicions about the state legislatures. It’s the idea that they’re not reliable that was the dominant animus behind the whole debate. So to me, as a historian, to reach a kind of strong decision–well, I mean, in the end, we have the right decision– but to reach it without taking into account, what were the animating purposes behind the cause itself, strikes me as being kind of a rather foolish way to pursue what the Constitution originally meant.

Ford: Thank you so much, Jack, for clarifying some of the uses of history, particularly at a time when the Court is operating increasingly along lines of originalism. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating on your favorite podcast app. It’ll help us improve the show and get the word out that we’re back.

I’m Rich Ford, along with Pam Karlan. See you next time.