Despite the risk of TOO MUCH INFORMATION, I’ve put together this TL;DR compendium of writings addressing the constitutional challenge now facing the country. I realize it is a lot to go through, but when the regular media treats Trump vs Biden as “the horse race no one wants to see” while ignoring the growing insurrection by other means that is taking place in real time, it’s worth having some resources to fall back on.
The governor of Texas is openly defying the Federal Government and the Supreme Court. Trump is calling on other governors to join in by sending troops. Red states are passing increasingly draconian measures aimed at controlling women, speech, voting, and anything else that threatens their grip on power. The wealthy are openly stacking the judiciary against us. Theocrats are working to impose Christian Dominionism on the country. Republicans in Congress are openly putting partisan politics above the national interest, both at home and abroad. Right wing media is spreading a constant stream of disinformation and outright lies 24/7. The Supreme Court has been stacked with activist conservative justices with an agenda to roll back FDR’s New Deal and Lincoln’s Civil War victory.
With all that, stopping Trump, the Republican Party, and the theocrats and oligarchs behind them has to take a high priority, because we have to start somewhere. Book mark this for some things to think about.
xaxnar
Here’s something from a recent email from David Corn with “Our Land”, a newsletter I subscribe to and find very informative. What caught Corn’s attention was the dilemma now facing conservatives, who may not have been crazy about Trump, but now face the certainty that he is going to be the nominee — again. From The Dilemma of the Anti-Trump Conservatives:
...These are right-wingers who oppose Donald Trump—because of his efforts to overthrow the 2020 election, or his often-incoherent policies, or his utter lack of decency, or his destructive influence on the right, or all of the above—but who devote more energy to decrying liberals for overreacting to and for persecuting Trump. I’m not referring here to Never Trumpers like neocon Bill Kristol or the gang at the Lincoln Project—those onetime Republicans who have readily joined forces with Democrats and progressives to oppose Trump. This is a different group of conservatives who strike a rather complicated stance. They see Trump as bad for the republic, but they cannot yield that age-old position (or reflex?) that the greatest threat to the nation is from the left. This can tie an anti-Trump-but-more-anti-anti-Trumper into knots. As I witnessed just the other day.
I was invited to appear on C-SPAN’s Washington Journal to discuss the New Hampshire election results. The other guest was Rich Lowry, the editor-in-chief of the National Review, which was once the flagship publication of the conservative movement. I like Rich. Years ago, we used to tour college campuses debating each other on policy and politics. He's a smart fellow who's fun to argue with. In the Trump Era, his NR, which was founded in 1955 by William F. Buckley Jr., has had a tough time maintaining its central role in the conservative cosmos, as it has resisted the urge to MAGA-fy.
emphasis added
To make a long (but very readable story) short, Corn was waiting to see how Lowry would deal with the prospect of another Trump run as the nominee after New Hampshire.
With Republican voters overwhelmingly not heeding the wisdom of the NR sages—that is, with DeSantis bounced from the race and Haley likely soon to be—these conservatives have a dilemma on their hands. Can they countenance the return to power of a lying thug who committed “serious offenses against our constitutional order”? To protect the nation, will they have to put ideological preferences aside and support the reelection of President Joe Biden? This was the question I had for Lowry
emphasis added
Can you guess the answer? Watch the video at this link.
At about 9 minutes in, Corn asks Lowry where he is now, when two weeks before New Hampshire, National Review was basically saying vote for anyone but Trump. What he wants to know, is where are constitutional conservatives like Lowry going to end up? “Will they advocate, in a race against Biden, [that] voters and American should put into office a man who, on their own terms, committed “serious offenses” against our constitutional order?”
Lowry shucks and jives around the question by saying they wanted anyone but Trump — but Joe Biden is just as bad. Biden was exceeding his legitimate constitutional authority... by trying to cancel student debt. And anyway, what Trump did on January 6 wasn't a crime as Jack Smith is alleging...
As Corn observes, this is major whataboutism. Lowry is trying to argue Biden is just as big a threat to the constitutional order as anything Trump has done. The critical exchange is only around 4 minutes long, but it’s telling.
Corn, in his newsletter:
At this point, our always-diplomatic host John McArdle politely cut us off, noting, “This debate could go on for a while.” That was fine by me, for I figured this back-and-forth had fully revealed the weak gameplan of Lowry and his comrades. They’re going to push a false and absurd equivalency between Trump and Biden, dubbing each a threat to the Constitution. Yes, Trump attempted to mount a coup and propelled an attempted violent insurrection with his lies. But, but, but…Biden tried to alleviate a portion of the student debt burden for up to 43 million Americans through executive action!
emphasis added
Read the whole thing. It also includes a regular feature: Dumbass Comment of the Week and additional items as they come up in the news, plus feedback from readers. (Corn invites engagement, and every so often holds Zoom sessions with full subscribers for some back and forth.)
You can subscribe to Our Land here, and I strongly suggest subscribing to Mother Jones as well. (The latest issue is a massive look at American Oligarchy.)
How is the Constitution is supposed to defend itself?
Meanwhile, still speaking of the constitution, Timothy Snyder at his Thinking About newsletter on Substack offers up this concept:
Constitutional Self-Defense — A constitutional tradition with immediate relevance
...One of the principles of West Germany's postwar constitution -- known as the Basic Law -- was constitutional self-defense.
According to section 1 of article 21, the "internal organization" of political parties "must conform to democratic principles." According to section 2, parties that “seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional." Section 3 excludes from state financing parties that "are oriented towards an undermining or abolition of the free democratic basic order or an endangerment of the existence of the Federal Republic of Germany."
What this means is that Germany’s highest court, the Federal Constitutional Court, can rule a party “shows disdain for the free democratic basic order." and deny it state financing or even ban it. From the BBC:
Germany's constitutional court has ruled that a right-wing extremist party should be barred from receiving further state funding and tax breaks that German parties legally receive.
The court's ruling on excluding Die Heimat, formerly known as the NPD, comes after days of German protests against the rise of the far right.
A million Germans have taken part.
The ruling also marks the first time that Germany has cut state financial support for a party without banning it.
Many now see this as a model for dealing with increasing support for the far-right Alternative for Germany party.
America also has provisions in the constitution to defend itself from antidemocratic forces and insurrections. As Snyder notes:
...One of the principles of America's postwar [post Civil War] Constitution, as amended, was constitutional self-defense.
According to section 3 of the Fourteenth Amendment, no one shall "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."
Snyder concludes with this observation — and a warning:
So, yes, a constitution can defend itself. The Fourteenth Amendment of the United States Constitution and Article 21 of the German Basic Law show how. Constitutional self-defense is part of the American and the German constitutional tradition.
A constitution can defend itself against almost any threat. The one point where it is helpless, though, is when judges refuse to read and apply its plain language. As German judges have just reminded us, the relevant verdict has to be issued at the relevant time.
emphasis added
I highly recommend subscribing to Snyder. He brings a level of scholarly insight to these matters that is invaluable. See also Snyder’s January 1, 2024 missive. (Hat tip to Charlie Pierce on this):
The Pitchfork Ruling — The Trap the Commentariat Sets for the Court. Snyder addresses those who say Trump should be on the ballot despite the clear language of the 14th Amendment because it should be left to the people to decide, not the courts:
This form of opposition to the Constitution poses as expertise. It takes the form of advice to the Court: find some way to allow Trump to be on the ballot, because otherwise people will be upset. Because we are used to hearing endless conversations about politics on television, where everyone seems to be a political advisor, it can seem normal to reduce sections of the Constitution to talking points. But we must pause and consider.
In fact, rejecting the legal order in favor of what seems to be politically safe at a given moment is just about the most dangerous move that can be made. It amounts to advocating that we shift from constitutional government to an insurrectionary regime. Indeed, it amounts to participating in that shift, while not taking responsibility for doing so. Let me try to spell this out.
In advising the Court to keep Trump on the ballot, political commentators elevate their own fears about others' resentment above the Constitution. But the very reason we have a Constitution is to handle fear and resentment. To become a public champion of your own own fears and others' resentments is to support an insurrectionary regime.
Funny how conservatives reject democracy as “mob rule” — unless it’s their mob in the streets.
Fear Stalks the courts
See David Kurtz of TPM on where the judicial system is now. He is concerned that the courts are moving far too slowly and are too intimidated by the threats coming from Trump, the Republican Party, and their supporters. There’s no shortage of evidence fear is a factor.
In the January 30 issue of Our Land, David Corn talks with two veteran investigative journalists, Michael Isikoff and Daniel Klaidman about their new book: Find Me the Votes: A Hard-Charging Georgia Prosecutor, a Rogue President, and the Plot to Steal an American Election .
Isikoff has this alarming comment on what Fanni Willis was up against when she began the proceedings against Trump in Georgia:
News of the Trump-Raffensperger phone call breaks on January 3, 2021, the week she takes office. She was coming into an office in chaos. Thousands of unindicted murders, rapes, and assaults were backed up, and she had a responsibility to deal with them. Also, she didn’t get a whole lot of cooperation from anyone in Georgia. Not even Raffensperger was willing to cooperate. He demanded to be subpoenaed. Other people took the same position. She had a hard time of finding people to help her handle the case because of the threats from Trump. She reached out to Roy Barnes, a former Democratic governor of the state, who turned her down, saying, “Do you want to have a bodyguard following you around for the rest of your life?” She tried to recruit a top former federal prosecutor, Gabe Banks. He, too, turned it down. His wife was concerned about the threats his family would receive. It took a while, and she ultimately ended up with Nathan Wade.
emphasis added
This is what we are up against.
The 14th amendment is not ambiguous: insurrectionists are barred from holding office. Colorado and Maine have taken steps to keep Trump off the ballot; Illinois is considering it too. Will the courts follow the intent of the constitution?
...The Illinois effort to keep Trump off the March ballot is similar to those filed in several other states. The U.S. Supreme Court is set to hear arguments next month in an historic Colorado Supreme Court ruling to remove Trump from that state’s ballot. The case presents the high court with its first look at a provision of the 14th Amendment barring some people who “engaged in insurrection” from holding public office.
We either have a constitution and the rule of law or we do not. (See Snyder above on Pitchfork ruling.)
Jamell Bouie has some pointed observations about what is an insurrection, and how Trump fits in:
While we await oral argument in Trump v. Anderson — the U.S. Supreme Court case that will evaluate the Colorado Supreme Court’s decision to exclude the former president from the state’s Republican primary ballot — it’s worth revisiting the arguments leveled against the Colorado court’s decision and, by extension, its interpretation of Section 3 of the 14th Amendment to the U.S. Constitution.
The first argument Bouie discusses is that what happened on January 6 was not an insurrection. To which he replies:
I’ve argued before, relying on evidence drawn from an amicus brief to the Colorado Supreme Court, that the former president’s actions make him an insurrectionist by any reasonable definition of the term and certainly as it was envisioned by the drafters of the 14th Amendment, who experienced insurrection firsthand. If that isn’t persuasive, consider the evidence marshaled by the legal scholars Akhil Reed Amar and Vikram David Amar in a more recent amicus brief. They argue that top of mind for the drafters of the 14th Amendment were the actions of John B. Floyd, the secretary of war during the secession crisis of November 1860 to March 1861.
The Supreme Court is packed with a conservative majority who fancies ‘originalism’ when interpreting the constitution. It means what it was meant to mean at the time it was written, no more, no less — according to their version of history. (This gets thrown out the window when it gets in the way of their agenda, of course.)
Floyd is relevant because he used his office as Secretary of War in the period leading up to the inauguration of Lincoln to disperse weapons around the south to prepare for insurrection, and includes efforts by him and others to block Lincoln from taking office. The drafters of the 14th amendment had his and similar actions in mind when they were writing it. If Floyd was an insurrectionist, so is Trump.
The argument that Trump as president is not a officer of the United States as defined by the 14th amendment also does not accord with history; neither that following the Civil War nor the intent of the 1787 drafters of the constitution. This has come up in several impeachment proceedings.
Further, Bouie makes one more point. The 14th Amendment was not simply addressing the events of the Civil War — it was written to address future threats.
The last point to make here comes from still another amicus brief, this one prepared and filed by the historians Jill Lepore, Drew Gilpin Faust, David Blight and John Fabian Witt. Section 3, they note, was not written for the past; it was written for the future. “In the 14th Amendment the United States now possessed the blueprint of a new Constitution, a new kind of federalism, a commitment to equality before the law, and a method to legally guarantee the essential results of the Civil War,” they write. “That blueprint included prohibiting past officeholders from holding federal or state office after engaging in an insurrection against the Constitution.”
This was recognized at the time. “The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come,” Senator John B. Henderson of Missouri said as he cast his vote for the amendment.
emphasis added
Charles P. Pierce has also taken look at the historic background of the 14th Amendment, in his Last Call newsletter on January 6, 2024. (If you aren’t subscribing to Pierce, what are you waiting for?)
Section 3 of the 14th Amendment Means What It Says
Pierce cites the words of Rep. John Bingham of Ohio. He was chosen as one of the judges in the military tribunals that passed judgment on the alleged co-conspirators in the assassination of Abraham Lincoln. He had no faith that the southern states had seen the error of their ways, or that the threat would never recur. John Bingham introduced what became the 14th Amendment to the Constitution on April 28, 1866. If the Supreme Court needs to know what ‘the original intent’ was behind the amendment, Pierce goes right to the source:
Sir, we are no longer permitted to doubt that whole communities are capable of so great infamy and perfidy. They did this in eleven of these States five years ago, and if they did it once may they not do it again? We are told they will be in terror of the prowess of j'our arms. Ay, they have occasion to be in terror of the prowess of your arms, and they will doubtless avoid any such conflict again. But the point I desire to make clear is, that unless you put them in terror of the power of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they may defy your restricted legislative power when reconstructed: they may dismember your Union and rend it into fragments and drive into banishment every loyal man in all those rebel States, and hold as their heritage a territory half as large as continental Europe without firing a gun or daring again to commit the overt act of treason.
...Many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none. It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment.
emphasis added
You can’t get more original than that.
Let’s not forget Section 2 of the 14th Amendment
Pierce also brings up Section 2 of the 14th Amendment and considering the jiggery-pokery around the Electoral College and Republican attacks on voting rights and elections in general, it’s a biggie. Written before women got the right to vote, it’s nonetheless pretty clear about the right to vote:
Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
emphasis added
Pierce links to Michael Meltsner at The American Prospect:
The election lawsuit about the 14th Amendment that you might not know about
...About a year ago, I reported in the Prospect on a pending lawsuit filed on behalf of a citizens group by former Department of Justice lawyer Jared Pettinato. The suit asks that the Census Bureau be required to enforce Section 2 of the 14th Amendment, enacted in 1868 to strip congressional representation from states that disfranchise voters. The text applies to general methods states adopt that keep people from voting and is not limited to racial discrimination. The proportional loss of congressional representation would also reduce the votes that states would get in the Electoral College.
Here’s the kicker:
Wisconsin’s 2011 voter ID law prevented 300,000 registered voters who lacked identification from casting a ballot, according to U.S. District Court Judge Lynn Adelman. This finding was accepted as true on appeal, and should be accepted as true at this stage of the Section 2 litigation. As 300,000 registered voters is approximately 9 percent of Wisconsin’s total registrants, the complaint reasons that Wisconsin should lose 9 percent of its representatives, equal to one member of Congress and one electoral vote. Another state would gain that representative.
emphasis added
There’s no question we need reforms about elections and voting — but the 14th amendment is a tool that we have now and really should be taking seriously. The question is — can we force the current Supreme Court to do so?
Regardless of the outcome in the court of appeals, the Supreme Court will be asked to decide whether the Constitution’s explicit remedy for disfranchisement has life or should be ignored. The Court has many tools that can be used to continue the tradition of nonenforcement. Standing to sue doctrine allows avoiding decisions on the merits; but with respect to Section 2, continued use of it in case after case amounts to saying that what the Constitution says doesn’t matter. For a judiciary that roams across the scope of American life in its decisions, such an outcome can only be seen as random, and thus really political, decision-making. And deciding the Section 3 case to allow Trump back onto the ballot while avoiding a decision in the Section 2 case would have clear political overtones.
Plus, failing to recognize the vitality of Section 2 will surely raise the specter of hypocrisy, as conservative justices have often looked to the original understanding of constitutional texts to justify decisions, an approach that would bring the 1868 disfranchisement remedy to the present day.
So much turns on the Supreme Court. Remember how people ignored what having Hillary Clinton in the White House would have meant for the court? What it means to have Joe Biden nominating Federal judges? Depending on how the Supreme Court handles what is coming at it, the case for reforming the Court is getting stronger all the time — if we still have a democracy after November.