A No-Win Choice

The Washington Post recently ran a story about the 91-year old Republican woman who is a plaintiff in the Colorado case that removed Donald Trump from that state’s ballot.

In one way, the piece was just one more reminder of how very far today’s GOP is from the political party it used to be. The woman being profiled, Norma Anderson, was described as a trailblazing former GOP legislator, and she joins people like Liz Cheney and other “Never Trumpers” in reminding us that what is on display these days is a very far cry from both conservatism and what the Grand Old Party used to be.

But that article is only one commentary on a critically-important and unprecedented issue: should Trump be barred from the ballot under the very clear language of Section 3 of the 14th Amendment?

That Section reads as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Guardian was among several media outlets that have reported on an amicus brief filed with the Supreme Court by some of this nation’s most eminent historians. Twenty-five historians of the civil war and Reconstruction argued in support of the Colorado decision to remove Trump from the ballot.

“For historians,” the group wrote, “contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th amendment [ratified in 1868] is most probative. Analysis of this evidence demonstrates that decision-makers crafted section three to cover the president and to create an enduring check on insurrection, requiring no additional action from Congress.”

Sean Wilentz of Princeton is a well-regarded historian who did not participate in the Supreme Court brief, but he too has dismissed arguments for allowing Trump to remain on the ballot.

“By their reasoning,” Wilentz writes, “Trump’s misdeeds aside, enforcement of the 14th amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.”…

 “Whether motivated by … fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, [commentators who say Trump should stay on the ballot] betray a basic ignorance of the relevant history and thus a misconception of what the 14th amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.”

No kidding. And they’re ducking and weaving…

“Textualists” and “original intent” devotees on the Court are faced with unambiguous language buttressed by reams of contemporaneous evidence submitted by the historians. The hearing Thursday telegraphed the Court’s reluctance to give the Fourteenth Amendment language its obviously intended effect. The decision is likely to be another nail in the coffin of this Court’s eroding legitimacy.

It’s true that a decision following the clear Constitutional language would run the risk of unleashing a violent reaction from the populists and neo-Nazis who support Trump.  Recognition of that probability has led some pundits to argue that the Court should punt–that it should “save democracy” by leaving Trump’s fate to the tender mercies of the voting public.

I understand that desire, which the Court clearly shares.

I truly believe that the likely match-up between Biden and Trump will result in a massive repudiation of Trump and his cult–that Trump’s intensifying and increasingly obvious mental decline, on top of his ignorance, narcissism and generally repulsive persona will lead to a massive rejection of the GOP at the polls. (Discount the polling averages that seem to show Trump even with or defeating Biden; as several scholars have noted, those averages include a large number of low-quality, partisan polls with which GOP propagandists have “flooded the zone.”)

It would be far more satisfying to defeat Trump at the polls, but America is facing a crucial test of our commitment to the rule of law. Are we, as John Adams famously proclaimed, a “nation of laws, not men”? Or are we a nation of scofflaws, ready to abandon rules when we find them inconvenient or unpopular?

The Court appears ready to place us among the scofflaws.

20 Comments

  1. “The Court appears ready to place us among the scofflaws”
    I fear you are right. Scary times indeed

  2. Sadly, the court seemed to ignore the insurrection trump invited and his continued support of the insurrectionist, something I’ve seen little comment about while the media focuses on the unprofessional & irrelevant comments regarding Biden made by Hur.

  3. It’s fitting that this corrupt SCOTUS will “bob and weave” in defense of the worst human this country has ever brought forth. They will, I predict, take cert on this case and then put it on the shelf until next session in October. It will reflect their absolute cave-in to their own ideology and will have nothing to do with the rule of law or the letter of the law.

    Republicans are political animals through and through. Even those idiots that Trump appointed will do their master’s bidding. Creatures like Thomas and Alito are so far down the corrupt rabbit hole as to never see the light of day never mind being “Justices”.

    I’ve lived in Colorado since the last days of 2017 and, since moving here from Texas, have noticed a sea change toward voting for Democrats. The egregious Lauren Boebert had to shift districts because even in her deep red district #3, polls showed she was getting trounced by the Democrat. Too bad we provide only 9 electoral votes instead of 19.

  4. One set of questions during the supreme court hearing focused on who this amendment was supposed to be limiting. The originalists focused on the fact it was meant to limit states power from re -electing former conferderates. They also focused on the fact the amendment said who could hold office, but it did not limit who could RUN for office. They ignored the fact the constitution does limit who can hold office so we’ve never seen a 25 year old run for president because states were allowed to regulate elections. The also ignored the fact that the constitution explicitly says states are to run their own elections.

    I expect some twisted ruling ducking the basic question that will allow Trump to stay on the ballot. Worst case scenario SCOTUS is setting themselves up for a constitutional crisis when have to refuse to swear in an elected insurrectionist.

  5. Concerning the part of the 14th Amendment about giving aid and comfort to insurrectionists, Trump is clearly guilty. Beyond just praising them, he has said he will pardon them. If that is not “aid and comfort” nothing is.

  6. I believe SCOTUS is just another corrupt entity in Washington. The billionaire supporter of the Federalist Society was behind the case in front of SCOTUS. He pulls the strings on most justices, just like Charles Koch.

    However, the Democrat appointees will also cave and let Trump back on the ballot in CO.

    Lastly, we are already a nation of scofflaws with our own and international laws. We’ve bailed out our allies numerous times for their atrocities while we stand up and wag a finger when certain countries break internal law. #Hypocrites

    We are a nation of scofflaws and hypocrites.

  7. Much as I would like to see Trump booted off the ballot, KBJ made a good point when she noted that at the time of the 14th amendment, no one was on any voter ballot for president. Rather, the president was chosen by electors, who were selected by state legislatures. Thus, barring electors who had engaged in insurrection or rebellion would have had the effect, back then, of ensuring that no one who engaged in insurrection or rebellion would be chosen as president.

  8. We should recognize the lesson that the 2000 election taught, that is SCOTUS will abandon even the appearance of adherence to principle, if it’s politically helpful. States rights are only right when it’s convenient to the GOP.

  9. better off if we allow a majority again,if possible, to get the electorial scam booted to the curb and reform voting. popular, most votes wins.we may have been able to back with Obama, if?he didnt run with wall streets mob. time to put America in the world view again as a free country,and laws, and lawmakers back into supporting the majority. make SCOTUS a time limit
    for every justice.retire one justice and give the prez the right to install one every election cycle.
    the basic freedom to decide, was kicked to the curb when we allowed to forego real discussions in a public town hall with any canidate running or retreading. the fact is, they now come to town dictate their agenda and leave. back to basics,if you run, you take questions and give up front answers on what how you will serve us. the majority,the worker.

  10. Religion is a human belief.

    Knowledge is a universal, unequivocal certainty from the perspective of homo sapiens at a particular moment in the journey of the species through our spacetime.

    Two critical questions today: What is “religion”? As knowledge expands, does it displace religion?

    Which things that require faith to motivate actions are considered “religion”?

    English defines “knowledge” as something that requires “learning” to motivate actions.

    Of course, “faith” requires learning, too, so the difference between the two words is in the concept of “certainty.”

    It seems intuitively obvious (to quote every science/engineering professor I’ve ever had) that knowledge does deplete religion. Still, as complete knowledge is a far-fetched dream, there will always be things we “believe” that motivate human actions.

    Liberals know. Conservatives believe.

  11. Paula. That argument seems to be a red herring. The amendment says nothing about voting. It is about who is not eligible to “hold any office” as described. You are also assuming that certain electors would be barred but they wouldn’t be unless they had taken the oath and then engaged in insurrection. Also, the amendment is not time limited. It does not refer only to the time when it was enacted. It is in effect now. SCOTUS may unlawfully choose to ignore it, but they do not have the authority to eliminate it. That can only be done by amending the Constitution.

  12. Leonard Leo owns the supreme court . He chose Gorsuch, Kavanaugh and Coney Barrett. Maybe he chose Roberts too.

    Has he been in contact with all of the right wing extremists regarding this case? Has he urged them to ignore the 14th Amendment and order Colorado to put trump back on the ballot?

    Corporations and extremely wealthy people know that trump is their best chance to eliminate more regulations and taxes and I’ve no doubt that they donate massive amounts of money to Leonard Leo’s Federalist Society.

  13. I listened to the oral arguments. As a layperson with no experience in the legal profession, it made me a little angry to hear what appeared to be a closed discussion between opposing parties that could not even agree on the meaning of a single word, let alone an amendment. The case will affect every voter in the country in one way or another. If anyone wonders why so many are disengaged, the oral arguments gave ample evidence as to why that happens.

    It was clear to me that Justices generally seemed to rebut the Colorado decision for a variety of reasons, not the least of which was the chaos that could result in candidates of any party being removed from the ballot in any state that took that action.
    I did not hear anyone make the point that voters can write in their choices regardless of the state’s allowing a name on the ballot but even that may or may not count depending on the state. (https://www.usa.gov/write-in-candidates)
    How is that different from the Colorado decision and its effect on other states’ determination of who can be on the ballot?

    The fact is that major political party has chosen to put forward a candidate who is an mulit-indicted and twice convicted (so far) man who has clear mental decline. He uses surrogates to do his dirty work and defies the law in obvious disdain for how it corrupts the lives of We the People in both subtle and obvious ways. That same party has control of the majority of the states’ governments.

    We seem to be in the same conditions that preceded the Civil War, with skirmishes breaking out but no declaration of armed hostilities, YET. Texas has decided to defy a SCOTUS order and is being supported by our own lame duck governor with State Guard being trained and ordered to deploy for 11 months in support of the Texas governor’s orders to defy federal law.

    Where does that leave those of us who have no power to act in a deeply gerrymandered state with a super-majority in power in all three branches of government?

    If anyone has any doubts about how deeply their reach goes, please see what this group has planned for the faculties of all of Indiana’s public universities. It is as insidious and intimidating as anything the Florida governor has done. It feels like being drowned.

  14. I thought this court would vote 6-3 on the issue presented in the application of 14-3 on der Trump. I now think after hearing their questioning of counsel a few days ago that it will be more than that, and that 9-0 is a possibility. It is clear that the court was searching for a rationale which would exempt its members from having to apply the plain language of the Amendment, i.e., future applications, violence, election interference etc., all according to the old but unstated judicial doctrine of “The Amendment doesn’t mean what it says; it means what we say it means.”

    Trump will be on the ballot in Colorado, and though theoretically the court’s finding is only applicable to that state, the court’s reasoning is a red light to any other state contemplating a challenge to Trump’s candidacy based on 14-3.

    I am reminded of the old story about Joseph Stalin the Russian dictator when asked about the vote of citizens. He said something to the effect that he had scant interest in voters and a lot of interest in those who counted the votes, a vision Trump has followed in his attempts to send phony electoral votes electing him rather that the 50-state certified count from both Democratic and Republican states electing Biden. His narcissism has no bottom.

  15. Originalists on SCOTUS believe they can know the minds of long dead founders living in times completely unlike those of today and even more so all of the tomorrows their decisions regulate.

    I can’t know the mind of my wife of 60 years so how is that possible? In fact it is increasingly delusional as progress continues to define us.

    We do need however the ultimate intellectual defender of our “natural” rights. Of course they exist not because of religion but, in many cases, despite religion.

    Lots stop the pretense.

    Presently there is existential disagreement between religion and human knowledge that will face a significant confrontation in November.

  16. US congress kicked the can down the road when they could have/ should have convicted trump of criminal acts while POTUS. Looks like Supreme court is going to continue to kick the legitimate can further on down. If that happens then it undermines the Colorado Supreme Court and causes further confusion and mis-trust in the Constitution. Also, the spin trump would give the decision to keep him on the Colorado ballot, as backed and cleared by the highest court in the land might cause some undecided voters to think trump is innocent and worthy of their vote.
    Pundits are wondering if the supreme Court will take an appeal of the DC circuit court of appeals that trump is not immune from criminal prosecution in the 1/6 insurrection case. The trajectory and momentum of the can getting kicked that far is a dire matter.

  17. The majority Neo-Fascist Supreme Court forgot a few things. Notably the infamous order President Donald Trump gave when he declined to clearly condemn white supremacist groups and their roles in political violence during 2020 first presidential debate. Trump told the Neo-Fascist group “Proud Boys” to, quote, “stand back and stand by.” “Stand back and stand by” FOR WHAT???!!! Guess they must have missed the fist debate. Yeah….whatever…..The Court is Supremely WORTHLESS for doing anything right, moral or good. They are clearly in the hands of Big Money (aka The REAL evil behind the curtain of our Democracy) and doing their dirty deeds. Period.

  18. Even if SCOTUS cannot abide the term “insurrection”, there is no question that Trump encouraged and promoted the “rebellion” and continues to give “aid and comfort” to the enemies of the constitution and our democracy by PUBLICLY PROMISING pardons for volumes of the January 6th violent protestors.

    Too often I’ve thought that the Supreme Court ignores all practicality when interpreting our constitution and laws. This time, however, they appear to be going the other direction entirely – ignoring ANY legal application of the clear language of the 14th amendment for fear of upsetting partisans. When Joe Biden did not appear on the New Hampshire ballot, did that somehow jeopardize the whole nation? Of course not.

    I don’t know who said it first, but I agree – if you’re going to be criticized no matter what you do, you might as well do the right thing. Supreme Court Justices, are you listening?

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