"This guy is delusional."
An attorney sent me a link to the article below with that sole comment. The article argued that the Supreme Court should affirm the Colorado decision.
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| Politico |
The article said that by the standards of "originalism" and "textualism" the Supreme Court should affirm the Colorado decision -- but it might not.
Trump and his allies assume that his appointees will vote in whatever way is best for the former president. They argue that, for democracy’s sake, the court shouldn’t deny voters the chance to choose the frontrunner for the Republican presidential nomination.
That is the familiar argument: America should ignore the Constitution in order to protect the supposed real purpose of the Constitution, democratic choice. Critics call out the presumed hypocrisy of Democrats who claim to want to protect democracy from Trump while they try to stop a democratic majority from voting for him if they so choose.
There is a problem with that argument. This is a republic. The Constitution was designed to protect itself by confounding democracy. It is full of prohibitions on majority rule, including on the issue of who is eligible to be president. Barack Obama was the most popular politician in America in 2016 -- far more popular than either Hillary Clinton or Donald Trump. But the Constitution blocked the popular will. There was a reason for that provision. After the long presidency of FDR, the public worried about the risk to our democracy of open-ended re-elections of a popular president.
A president must be aged 35. Age requirements eliminated a risk observed in Europe of father-son political dynasties, a timely concern. William Pitt the Younger took office as Prime Minister at age 24 in 1787, the year the Constitution was drafted in Philadelphia.
The native-born requirement for a president eliminated a democratic choice for the purpose of protecting us from famous or popular Europeans riding that popularity into America government.
Requirements for lifetime tenure for federal judges is profoundly un-democratic; the idea was to protect our the independence of the judiciary.
The Bill of Rights is all about stopping popular majorities to protect rights and liberties. We could not have a durable democracy without freedom of speech, of religious expression, a free press, and the right to assemble. Democratic majorities were forbidden to end the right of militias to bear arms, or to require citizens to quarter soldiers in homes, or to impose cruel and unusual punishment.
The 14th Amendment's Section Three is entirely consistent with the Constitution's effort to protect democracy from itself. After the civil war there was a practical risk that politically popular southern politicians, people who had proven themselves disloyal to the federal union, would re-enter government as southern states were re-admitted. They would repeat an oath of loyalty -- the one they had already broken. They were untrustworthy. Democracy might not survive if people willing to subvert democracy were voted back into the government.
I offer below links to two briefs sent to the Supreme Court in support of the decision by the state of Colorado. This first brief was submitted by a group of distinguished historians. They write that the historical record is clear that a disloyal former president is exactly what the Constitution protects itself from.
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| Historians brief |
Two brothers, both law professors, Akhil Reed Amar and Vikram David Amar co-authored a brief I found very readable. In the months after the election of Lincoln, but prior to his inauguration, President Buchanan's Secretary of War, James B Floyd, carried out the first insurrection, one that took place prior to the Civil War. His goal was to scatter and weaken the army. The authors of the 14th Amendment understood there was more than one way to carry out an insurrection.
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| Amar brothers' brief |
The Supreme Court will do what it will. I don't expect them to affirm Colorado's decision. The lunacy would be to presume this court would risk surprising and angering Americans.
Each of these briefs require a reader to invest more time and energy than fits a format like this blog. It is more of a "curl up with a good book" situation. But the briefs each make a point. There is a strong case to be made that the Supreme Court should affirm Colorado's decision for the simple reason that it is what the Constitution directs them to do.
27 comments:
J. Michael Luttig, a retired Federal Appeals Court judge and conservative legal scholar, also filed an amicus brief with the U.S. Supreme Court, arguing that former President Trump is disqualified to run for public office under Section 3 of the 14th Amendment. Having “incited, and therefore engaged in, an armed insurrection” against the Constitution, Luttig wrote, Trump “disqualified himself under Section 3.”
It seems pretty clear-cut, especially if they take the “textualist” approach they so often espouse, but Peter is probably right – I’d be surprised if they uphold the Constitution in this case.
Whether it's the Civil War itself, or the Amar brothers' "First Insurrection", arguably the salient connection for purposes of defining "insurrection" is arms and armaments. Analogizing them to an hours-long riot in which not a single rioter who entered the Capitol carried a firearm, let alone proved subject to arrest and charge for, um, insurrection, just seems like a stretch. Maybe the students at Sixties sit-ins really did believe they were going to be left in charge of running their universities? Nonetheless, here's hoping the SCOTUS rules substantively and doesn't duck and dodge the issues.
If the Supreme Court decides Trump, they had better make it unanimous or there will be violence in the streets. Like the ruling against Nixon in the tapes case.
Jan. 6 was an insurrection by definition: A violent uprising against an authority or government.
A number of the insurrectionists were convicted of seditious conspiracy, which is pretty much the same thing.
LD, a serious question ?
Would you feel the same way as you say in your post, had those "unarmed rioters" succeeded in actually lynching Mike Pence, or murdering Nancy Pelosi, as they were howling about doing ?
I have no legal expertise. But speaking politically, there is absolutely no way that the Supreme Court is going to find in favor of Colorado.
I can’t imagine anything more inflammatory to populists than having elites decree who they can and cannot vote for. Most of the justices understand this, and will not be eager to pour gasoline onto this particular fire.
Regardless of whether Donald J Trump is on the ballot or not as a result of a Supreme Court decision, voters in the state still have the option of writing in Donald J Trump for president. Whether the states electors would carry that vote to the Republican convention remains to be seen. Notwithstanding the actions of the state or the Supreme Court, there will be confusion and disruption and chaos in the upcoming election. Any reasonable person can see the storm cloud gathering.
This election, like no other in the past, will be fraught with great danger for our Republic and the Democratic processes.
One of the great 1/6 unknowns--thankfully--is what would have happened had members of the mob actually encountered say Speaker Pelosi, or VP Pence. Had violence against one of them occurred, I'd amend "rioters" to "murderous terrorists". Those would be capital offenders if ever there were any.
If--if--insurrection signifies an organized, concerted effort to overthrow the government itself, I believe we're still stuck with the Reuters reporting from 8/20/21 that the FBI found little or no evidence of coordination and specific planned objectives on 1/6, other than among certain extremist subgroups, and even that namely to breach the Capitol. Even those Oath Keeper types were not charged with insurrection, amid a vigorous and thorough law enforcement response to 1/6.
SCOTUS will protect TFG.
SCOTUS has zero credibility with the majority of Americans.
It is not SCOTUS role to pacify the loud, violent, and ignorant minority. Its responsibility is to enforce the Constitution.
Equal Justice Under the Law is dead.
FALSE.
A judge already ruled Trump guilty during a trial in which Trump's henchmen presenter and questioned witnesses under oath.
So, yes, Trump was convicted of inciting a riot.
What's your next excuse?
Populists would find it far too inflammatory if the Supreme Court were to uphold the Constitution in this case. Of course, Trump and his “populists” only accept election results they like, so it would be equally inflammatory for him to lose this year’s election. If the Supreme Court wants to avoid pouring gas on the fire, they might as well declare Trump the winner right now.
FALSE.
So, you're OK with law enforcement being beaten but not with politicians? That's what you've said.
There was proven coordination between multiple groups, including some acting at behest of TFG.
They specifically wanted to delay counting of electors. That is not up for debate.
Your grasp of the GOPee's history of domestic terrorism is inadequate.
When are you going to accuse Obama or Clinton of worse?
Mike. Thank you for acknowledging the SCOTUS is caving to political pressure.
Previous courts (lowercase intended) ruled on politically devisive issues (segregation, discrimination, women's rights).
The Roberts court is a disgrace.
A few people were convicted of sedition and are in prison. TFG will be next.
The SCOTUS argument about the 14th Amendment requiring legislative action is ridiculous.
Since when does Congress need to rubber stamp the Constitution?
We need a courageous SCOTUS and competent Congress.
The idea of leaving it to the states is proper.
ALL states already set criteria for appearing on the ballot.
Disgusting.
Being a member of today's republican party means that you're OK with candidates who rape women and try to overthrow the government.
That's a fact.
If Americans still have anything resembling a conscience, even Biden should have no problem beating a rapist, traitor and pathological liar. Of course, Republicans will only accept the election results if Trump wins. What we have here is a failure to communicate.
After today’s SCOTUS hearing, the money is on Trump being on the ballot. He’s riding the tailwind of popularity to the nomination.
Meanwhile Biden is outraged that he’s portrayed as well-meaning but old and feeble-minded and his response is to make a gaff confusing the president of Mexico with Egypt about Gaza.
Not looking good for “a more perfect union”
L.D . - Let me point out the definition of armed. The courts view an implement used to hurt, maim, threaten, or kill in the commission of a crime as to have used a weapon escalating the severity of the felony.
Looking at the video of 1/6 I see spears (some disguised as flag poles), hammers, blunt instruments, sharp implements (spear points), cans of Mace spray or bear spray in use use to gain illegal entry and bludgeon police. You don't have to carry a gun. Take a good look at the QAnon Shaman, standing in the House Chamber podium, brandishing a war lace (spear). The initial wave of trespassers were, by the legal definition, armed. Guns had been stashed near by but were not deployed. Nevertheless, because you don't see a gun in the crowd doesn't mean they were unarmed.
MS: “What we have here is a failure to communicate.“
If you’re the warden, who’s Cool Hand Luke? And who gets to spend a night in the box?
It seems to me that this corrupt and feckless SCOTUS is judicially legislating policies they make up as they go. The decision in Dobbs was to turn control of women's bodies and choice back to the States, for each State to do as they wish as far as disempowering women, but when it comes to allowing States to run elections as they see fit per the Constitution, States Rights are no longer pertinent.
MT: In the end, Luke said that just before he was shot. We'll soon see whether he's Trump or our democracy.
Mc--
I believe you haven't accurately recounted the record to date, nor my comments here.
John F.--
Points taken. Questions remain re proof of organized intent once the Capitol was breached.
Luke never said that; it was the warden.
Luke said that, mocking the Captain just before Boss Godfrey shot him in the neck. https://tvtropes.org/pmwiki/pmwiki.php/Recap/CoolHandLuke
Yep. Good catch. I forgot that one.
FALSE, LD
Rioters at the Capitol had firearms. Some were charged:
https://flip.it/2Yi-x1
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