Derek’s point about the hugely different nature of presidential elections today compared to when the Fourteenth Amendment was adopted is a crucial one and must be kept firmly in mind as one considers the question of constitutional interpretation (or is it constitutional “construction”?) that must be undertaken today in figuring out how section 3 of the Fourteenth Amendment potentially applies to next year’s presidential election.

The difficulties of “translation” that Derek describes are obviously challenging but they are also unavoidable, and as far as I can tell they end with an institutional question of who has authority to make decisions regarding the potential applicability of section 3 to a presidential election. It seems to me that there are only two alternatives with respect to this basic institutional question. One is that Congress possesses a kind of exclusive legislative power over the enforcement of section 3 such that no state legislature is permitted to exercise legislative power with respect to determining the disqualification of presidential candidates in conjunction with regulating the “manner” of appointing presidential electors–unless and until Congress gives prior authorization to state legislatures to exercise their Article II power over the appointment of presidential electors in this way. This first alternative would be an aggressive reading of Griffin regarding the role that implementing congressional legislation must play in order to trigger any enforcement of section 3 at all.

The other institutional alternative is that while Congress obviously possesses preemptive power under section 5 of the Fourteenth Amendment to legislative how section 3 of the Fourteenth Amendment is to be enforced (just as Congress possesses preemptive power under the Commerce Clause, for example), the absence of such congressional legislation under section 5 does not divest state legislatures of authority to exercise their own independently granted powers to enact measures for the enforcement of section 3 with respect to matters that are appropriately within their purview. In this regard, consider the issue of how section 3 applies to a state’s gubernatorial elections. The text of section 3 itself is clear that it disqualifies a member of Congress who engaged in insurrection or rebellion against the United States, or gave aid or comfort to its enemies, from becoming a state’s governor. Is a state legislature prohibited from enacting a method of enforcing this disqualification with respect to its gubernatorial candidates unless and until Congress has enacted prior legislation giving a green light to the state’s exercise of its own legislative authority in this respect? That would seem extreme and a discordant understanding of federalism, even after the adjustment in federal-state relations during Reconstruction. To be sure, under section 5 of the Fourteenth Amendment, Congress could control a state’s enforcement of section 3 disqualification with respect to gubernatorial elections–and even under a general grant of amnesty preclude any state enforcement of section 3 at all–but in the absence of any federal legislation one way or the other, the state legislature presumably would be permitted to exercise its own legislative powers to enforce section 3 disqualification with respect to its own gubernatorial elections.

Consider again the case of Clement Vallandigham. He was a member of Congress from Ohio. He allegedly was part of a conspiracy to aid the Confederacy during the Civil War. (I will spare readers of this blog post all the fascinating aspects of his career, including his military trial and imprisonment during the Civil War–not for his alleged participation in the pro-Confederacy conspiracy, but instead for an earlier anti-war speech.) After the war, he attempted to resume his political career as a Democrat, including running to be Ohio’s governor. (He lost.) The relevant constitutional question, I think, is whether Ohio could have enacted a statute to adjudicate the question of his disqualification to be governor under section 3 without a prior federal statute giving the Ohio legislature this authority. I surmise that the better answer to this constitutional question is that Ohio would have had this independent legislative authority unless and until Congress divested Ohio of it through congressional exercise of its power under section 5 of the Fourteenth Amendment. In other words, the default position is that states could exercise their own legislative power unless Congress preempted it, rather than states were not entitled to exercise their own legislative power unless Congress explicitly granted them permission to exercise it.

An instructive analogy is to the power of each chamber of Congress to judge its own elections under Article I, section 5. I don’t believe that congressional legislation pursuant to section 5 of the Fourteenth Amendment was necessary before each chamber exercised its own independent Article I power to enforce section 3 of the Fourteenth Amendment to disqualify winning congressional candidates whom the chamber adjudicated to be ineligible. An Act of Congress pursuant to section 5 to control section 3 enforcement, including a general grant of amnesty, could supersede and control each chamber’s enforcement of section 3. But absent any such Act of Congress, each chamber could rely on its own Article I power to enforce the section 3 disqualification. The same basic point would seem to apply to a state’s exercise of its own independent authority over gubernatorial elections.

If this analysis is correct, it would also seem to apply to presidential elections. In this context, again, it is the state legislature with the independent authority to enact laws governing the appointment of presidential electors. As Derek has importantly observed, state legislatures have exercised this power in ways that make the appointment of presidential electors look much different than in 1868 or 1872. But as a matter of basic institutional power to legislate on this topic, it would seem state legislatures had the power to legislate the enforcement of section 3 of the Fourteenth Amendment in the context of the appointment of presidential electors for the 1872 election. Recall that section 3 of the Fourteenth Amendment explicitly disqualifies anyone covered by the section from serving as a presidential elector as well as from other types of offices. It would seem odd to say that state legislatures would have needed prior congressional approval in order to adopt their own enforcement statutes to make sure that none of their presidential electors were ineligible by virtue of section 3.

Thus, even though the task of translating section 3 to contemporary presidential elections is a very tricky one–as Derek rightly emphasizes–that translation function is one that institutionally belongs to state legislatures in the first instance, with preemptive supervisory authority belonging to Congress. It would seem incorrect to say that state legislatures have no power to engage in this translation exercise unless and until Congress explicitly gives them permission to exercise their Article II power over presidential elections in this way.