Extracts from Justice Samour’s Dissent in the Colorado Supreme Court Decision

 

Paragraph 279: The Fourteenth Amendment was designed to address a particular juncture in American history. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 3), https://ssrn.com/abstract=4532751. The postbellum framers were confronted with the unprecedented nexus of historical events that gave rise to and shaped secession, the Civil War, and Reconstruction. Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. (forthcoming 2024) (manuscript at 214–15), https://ssrn.com/abstract=4568771. And their response, in some measure, sounded the clarion call of “a constitutional revolution.” Id. at 99.

Paragraph 299: Certain legal scholars have sought to explain this purported incongruence by surmising that Chief Justice Chase’s application of Section Three in Griffin’s Case was politically motivated. Consequently, they criticize Griffin’s Case as wrongly decided and the result of flawed logic. See Baude & Paulsen, supra (manuscript at 35–49). Other legal scholars, however, question whether the statement quoted above from the Federal Reports accurately represented Chief Justice Chase’s views. They point out that the case reporter, a former confederate general, was the very attorney who represented Judge Sheffey in Griffin’s Case.⁷ See Blackman & Tillman, supra (manuscript at 15). Even assuming Case of Davis warrants any consideration at all, there is no need to join this affray because these cases can be reconciled in a principled manner by recognizing that there are two distinct senses of self-execution. Id. at 19. I find this distinction both helpful and borne out by the case law.

Footnote 7: Griffin’s Case was decided in 1869 and the statement from the case reporter regarding Case of Davis appeared in the 1894 Federal Reports. Blackman & Tillman, supra (manuscript at 140).

Paragraph 324: Although Section Three was included in Powell among the so-called Qualification Clauses, closer scrutiny reveals that it is unique and deserving of different treatment. That’s because Section Three is the only one that is “qualifie[d]” by the following language: “[C]ongress shall have power to enforce, by appropriate legislation, the provision[s] of this article.” Griffin’s Case, 11 F. Cas. at 26 (emphasis added) (quoting U.S. Const. amend. XIV, § 5 and stating that “[t]he fifth section qualifies the third”). None of the other Qualification Clauses—even when viewed in the context of the original Articles in toto—contains the “appropriate legislation” modifier. Indeed, that modifier only appears in certain other Amendments, none of which are objectively relevant to the instant matter. I need not contemplate what bearing, if any, this has on the self-executing nature of constitutional provisions more generally. While that might be an open question, see Blackman & Tillman, supra (manuscript at 23) (noting that there appears to be “no deep well of consensus that constitutional provisions are automatically self-executing or even presumptively self-executing”), the demands of the instant matter counsel in favor of limiting my exposition to the Constitution’s presidential qualifications, especially those found in Article II, Section One, Clause Five.

Anderson v. Griswold, Sec. of State and Intervenor-Appellee/Cross-Appellant Donald J. Trump, Sup. Ct. Case No. 23SA300, 2023 Colo. LEXIS 1177, 2023 WL 8770111, --- P.3d ---- (Colo. Dec. 19, 2023) (Samour, J., dissenting), slip op. at 5, 13 n.6, 15 & n.7, 29 (citing Blackman & Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol.), <https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf>;

Seth Barrett Tillman, ‘Extracts from Justice Samour’s Dissent in the Colorado Supreme Court Decision,’ New Reform Club (Jan. 30, 2024, 2:38 AM), <https://reformclub.blogspot.com/2024/01/extracts-from-justice-samours-dissent.html>;