The title to this blog post is the answer to a question facing the U.S. Supreme Court.
The question is:
"What do you do when the plain text of the Constitution conflicts with political convenience?"
This blog post makes a prediction. The Supreme Court will reverse the decision by Colorado and Maine to keep Trump off the ballot. They will ditch the Constitution.
The Supreme Court has a dilemma. So far two states say Trump is ineligible to be president under the terms of the 14th Amendment. The justices watched with their own eyes an organized attempt to overthrow an election that culminated in a violent attack on the Capitol at a pivotal moment. It wasn't an idle tourist visit by some over-enthusiastic partisans. Trump didn't just give the attack aid and comfort. He coordinated it. He authorized it. He made phone calls. He gave speeches. Trump had a plan that nearly worked: Persuade partisans to sign false documents as alternative electors, and then a vice president would pretend to have the power to discard the legitimate electors in favor of the alternates. The president told people to go to the Capitol to intimidate the vice president and Congress, and people did as he urged. People died in the melee.
It nearly worked. Vice President Michael Pence was under intense pressure. He called it a close decision.
It sure looks like an insurrection -- a failed one.
The complication for the Supreme Court is that several members of it -- probably six of the nine -- approved of the potential result of the insurrection had it worked, Trump staying in office. It is awkward for those six to rule that what they witnessed was part of something fundamentally wrong and illegal since the wife of a colleague took active part in the overall plot. She wrote state legislators urging them to ignore the election result in their state and submit an alternative slate of electors. Calling it an insurrection plot implicates her.
Moreover, if the Supreme Cort rules that Trump did what they saw him do, then the Constitution forces them to remove a popular choice for president. They don't want to be in the middle of this.
The Court is hoist on its own petard of textualism. The Constitution repeatedly prohibits popular choices. It puts up boundaries against popular majorities to stop them from decisions that would destroy the republic and our freedom. The Constitutions says that presidents must be 35, native-born, and cannot serve more than two terms -- even if such a person would be the popular choice. Obama was the most popular politician in America in 2016, but he was ineligible to run for a third term. The Constitution said so. Congress and the states might have clear majorities wishing to prohibit speech praising Nazis or communism, or prohibiting the practice of Islam, or banning Latter Day Saints from doing missionary work in the U.S., or prohibiting Americans from bearing arms. Sorry. Cannot do. The Constitution's text prohibits it. A majority of Americans thought that reproductive privacy was embedded in the Fourth Amendment. Sorry. It's implied, maybe, the Court said, but it's not in the text, so no. If people want outcomes that aren't in the text, change the text, not the outcome. That is textualism.
The Constitution says engaging in insurrections, or giving aid and comfort to them, is disqualifying, unless Congress by a two-thirds vote says otherwise. There is a constitutional procedure here, in the text.
I predict the Supreme Court will be rank hypocrites. The majority has a result they want and it is directly counter to the text. It lets the Court rule pretending to disclaim power, saying that the people, not the Supreme Court should decide who is president, at least in this case. They will say Trump was maybe involved in a protest, not an insurrection. That lets them avoid declaring that Justice Thomas' wife was involved in something dangerously wrong. Their hypocrisy on textualism will be an embarrassment, but if Trump wins in 2024, the GOP can whitewash the events surrounding January 6. Trump will pardon everyone and stop all prosecutions, and call the participants patriots. If Trump loses in 2024, the Court can say that the people chose, and it all worked out without them interfering.
The only long-term victim here is the Constitution.
Confirming the Colorado and Maine decisions would be a giant step toward re-establishing the Supreme Court's non-partisan legitimacy, but that is a long-term benefit with short-term pain. Trump will be outraged. Republicans in Congress will pretend to be outraged, even though in reality most will be relieved. But the Court won't do the smart thing. They will do the hypocritical thing. Short term, it is easier to enable Trump. That is the pattern. Officeholders do it. The Court will do it.
The U.S. won't lose our constitutional democracy because German, Japanese, or Russian troops occupy the Capitol. We will do it to ourselves.
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19 comments:
“The U.S. won't lose our constitutional democracy because German, Japanese, or Russian troops occupy the Capitol. We will do it to ourselves.”
As Pogo said, “We have met the enemy and he is us.”
One of the more absurd arguments I’ve heard for not prosecuting Trump is that it could lead to civil war, as if our democracy wasn’t worth defending. The way the Nazis gained absolute power after a failed coup is an ominous lesson about the fragility of a republic. We would be absolute fools to allow Trump and his cult to do that here.
The Supreme Court showed it was political in Gore vs Bush, it’s just more blatant now. When Obama wasn’t allowed to place a Supreme Court nominee because it was too close to the election and then the same republican senate did just that with Trump, it became pretty obvious that it’s political. Or how about when those nominees said they would respect judicial history and then overturned Roe vs Wade, it was the icing on the cake who and what the Supreme Court is. They are big on the constitution until it is inconvenient to be so and then they won’t be. I have faith that the Supreme Court will do the political choice, not the right choice. One step further down the loss of true democracy hole we go.
Man, do I sound cynical and beaten down.
Wrong. Your analysis is facile and cynical. The Fourteenth Amendment is about “due process of law.” When the 14th doesn’t explicitly lay out what process is due to disqualify someone from the highest position in the land (and the most powerful position in the world), the Supreme Court is left to fill in the blanks based on the historical context, precedent, rules of construction, and the apparent purpose of the people in enacting the provision.
This exaggerated example will suffice for this limited space. If you had the choice, would you leave the selection process to the people (“democracy,” even if you believe the other party and half the voters are bats**t crazy), or would you have the appointed dog catcher with an eighth grade education in Eufala, Alabama decide?
Really?
Thanks for an excellent, if mordant analysis, Peter.
I'm afraid I agree with you, that the Supremes are just hypocritical enough to go along with the would-be shredders of the Constitution. I suspect my lifelong Republican Father is spinning in his grave. He'd have been 95 today, had he survived the PTSD he acquired as a 16 year old Combat Veteran of the Pacific Submarine War.
To Anonymous and anyone who agrees with her:
The example is a straw man. Of course this will go to the Supreme Court. It is only a close call if one insists on being blind to reality. Donald Trump argued that Obama was ineligible, because he was foreign born. If a bright red state had taken Obama off the ballot it would have been appealed to the Supreme Court. He would have shown his evidence (birth certificate) and had the Supreme Court said they didn't believe Hawaii, we would have had a constitutional crisis and it would have been on Congress either to overrule them or not. It would be the death of the Supreme Court, however, to deny Hawaii's evidence, so they wouldn't do it.
This will go to the Supreme Court. They saw an insurrection but will pretend they didn't. They will make a decision and it will reflect on the Supreme Court. My point is, indeed, cynical. I think they will decide in favor of Trump. This will hurt the Supreme Court's credibility. They have a golden chance to put the lie to what Trump and the GOP is saying, that the Court is Trump's pet and totally partisan. This is an opportunity to put the lie to that. They won't because Trump's assertion is, alas, in fact correct. GOP officials have been enabling Trump and that is the pattern. They keep hoping that health or Democrats or a guilty verdict will take Trump away. The Supreme Court could do it. But wont.
If Anonymous is self confident enough to call my comment facile, I would hope she would grow enough courage to use her own name. Don't wimp out.
Peter Sage
I think in this you're assuming facts not in evidence: That SCOTUS has any credibility left; what shreds there are, will disappear like smoke in the wind when Clarence Thomas fails to recuse himself from any Case coming before the Court involving the Insurrection, of which his wife was part and parcel of helping plan and encourage.
Does Section One of the 14th override Section 3, which is quite clear in its intent of forbidding insureectionist to ever old any elective Office. I suspect that part of SCOTUS which is owned entirely by the Fascist segments of Congress will turn themselves into knots using that as a pretext for overriding those States exercising their rights to control Elections in their Jursdictuons. So much for States Rights, unless it's something yhe Seditionist wing of SCITUS agrees with, like banning a Woman's right to select her own health care.
Whatever happened to "Innocent until proven guilty?" this means proven by a court of law...not in the fevered imaginations of one or many people.
The facts stand that 1) Former President Trump has not been charged with "insurrection," and 2) not been found guilty of "insurrection." Based on number 2 alone, the decision to remove him from the ballot under the 14th Amendment is incorrect, wrong, and stupid. These acts in Colorado and Maine are political and are far more damaging to our Republic in the long term than the riot on Jan. 6th.
You don't have to like Former President Trump to stand by the rule of law and understand how essential it is for our free society and our Constitutional Republic.
Special Prosecutor Jack Smith did not charge President Trump for insurrection. Why not?
Trump's speech on Jan 6:
From transcript: he made only a passing suggestion that the protest should be nonviolent, saying, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
In case you don't recall, I don't want either President Biden nor ex-President Trump as our next president. I do want the rule of law to be followed. Where are the formal charges, trial, and verdict?
Perhaps the Supreme Court will say this: The courts are not allowed to retry the insurrection issue. It's been tried once already, and once is enough; once is all we get. The House of Representatives impeached President Trump when he was in office, the issue being the January 6th insurrection. The Senate acquitted President Trump. You may not like that acquittal. Nevertheless, the senators were our democratically elected representatives, and the impeachment and trial were constitutional due process for both President Trump and for America. Case closed. Colorado and Maine don't get their own bites of this apple. If this is the Supreme Court's decision, then instead of attacking the Court's integrity we should be sure to vote against Trump's enablers in the senate, and redouble our effort if the MAGA Republicans win on the next go around.
Agreed with the previous stances on Due Process. Courts can't just take rights away without giving you, well, your day in court.
Peter, even the most vehement Trump haters that lurk here should appreciate that constitutional protection. I've said before the issue with the modern Democrat is they only care about the parts of the constitution that can be used to take rights away, none of the ones which protect rights.
After all, someone you dislike might get protections you'd rather them not have.
Section 3 of the 14th Amendment says nothing about someone having to be accused or convicted of insurrection before he can be barred from office. It says no person shall hold any office who shall have engaged in insurrection, or given aid or comfort to those who did. Obviously, it’s up to the courts to decide this. The Colorado Supreme Court already has but ultimately it will be the SCOTUS that makes the final decision, for better or worse.
Peter: You’ve made my point precisely. States have an interest in protecting the integrity of their elections. That job falls to the Secretary of State. Ours grew up in John Day and was appointed Secretary because she served as a long time auditor in the Department. No disrespect, but she is an unelected bean counter. If she was a red state official kicking Biden off the ballot, you’d be screaming bloody murder. Be careful what you wish for…
(BTW, the other anonymous patently qualifies to be a member of Trump’s legal team. The argument that failure to gain a political 2/3 vote in a Republican Senate is the equivalent of being found guilty (or not) by beyond a reasonable doubt by a jury of the crime of insurrection and therefore double jeopardy applies is also a nonstarter…)
I’m with M2inFLA. A trial and a conviction are required before a penalty can be imposed. It’s called “due process.”
Besides, what Colorado and now Maine have done is political ineptitude of the highest order. What better way could there be to fire up populist Trump voters than for elite officials to take away their ability to vote for their preferred candidate?
If Trump wins next year, it may well be that Colorado and Maine were instrumental in that unfortunate result.
I am not qualified to be member of Trump's legal team. For one thing, I support our government; I think government is beneficial. I trust the CDC. I don't believe that there is a "deep state" trying to deprive me of my freedom. But it's the Senate's job to try a President charged with high crimes and misdemeanors. The Senate did that. Let's accept that result. Otherwise, we're like Trump. Democracy is a two way street.
Which version of the Constitution, specifically the 14th Amendment, says a Trial and Conviction are necessary before a person is barred from holding Office after fomenting Sedition or Insurrection? My copies make no reference to either trial or conviction.
Thanks, Mike. As Conservative as he is, I truly wish he were on SCOTUS instead of Alito or Thomas.
The Supreme Court is going to decide this. No one else’s opinion matters.
It will be interesting to watch the contortions the court goes through to make a pretense of being non-partisan. No doubt Clarence Thomas will recuse himself from the case, since his wife aided and abetted the coup attempt – but perhaps I shouldn’t be so sarcastic this close to New Year.
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