PERSONAL NOTE: I got started with diaries at DailyKos back at the end of 2008, writing updates on the Franken-Coleman Senate recount in Minnesota. It was a winding journey through the courts for me, a “Lunatic with a Laptop” and Lutheran pastor. I learned a LOT about law, lawyers, motions, etc., and an awful lot of it from the Kossacks here who were lawyers or paralegals or legal secretaries. They all endlessly and patiently explained, corrected and expanded on what I was noting in the daily news on the Recount, which made for better reading and understanding for everyone, including me.
While I have written other diaries at times and regularly contribute to the Good News Round Up in a History Corner sort of way, it seems I can’t get away for courts and laws and cases. So here we go again!
TUESDAY The ball has dropped/hammer has fallen/jello has jiggled/cookie has crumbled/pickle has dripped from the US Court of Appeals on a federal case dealing with Presidential and post-Presidential immunity from the Law. The comments and analysis are still flying, and likely at Mar-a-Lago the Ketchup is hitting the wall.
Tomorrow/Thursday is another show, different scripts, same cast. The US Supreme Court will hear oral arguments from the state/Supreme Court of Colorado vs. The Orange Smelvis on barring from the ballot said Ferret-Haired Aroma, firstly in Colorado, and then other states, or even nationally.
The attention is centered on the US Constitution’s 14th Amendment, the 3rd section. This Amendment was added to the Constitution in 1868, 3 years after the end of the Civil War. In a nation “conceived in liberty, and dedicated to the proposition (try that clause out loud a few times; talk about rhythm) that all men (sic) are created equal” a whole raft of people had “engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure.”
Well, that nation HAD endured and HAD advanced liberty and HAD extended the proposition that a whole lot more men (and women and children) were created equal to a whole lot of other people. There was also a long and major list of people had taken up arms to fight AGAINST that liberty and AGAINST that proposition, and they had been DEFEATED.
So now, what to do about the Defeated? There were several historical examples to draw from: round them up and execute them. Plow their fields and sow their ground with salt (see Rome vs. never-a-threat-again Carthage!) Hunt them down and send them into exile. Imprison them for various terms. Strip them of citizenship. Confiscate their property and reduce them to poverty.
All these penalties, and others, and in various combinations, could have been done. But President Lincoln had insisted that the Union be preserved, that “we must not be enemies, but friends.” He steadfastly refused to recognize anything Confederate, including their territory, or government, insisting LEGALLY that nothing had actually changed. He was only treating e.g. Alabama or North Carolina, etc. as having fallen out of “a right relationship” among the states, and that if the war would be won by the Union, that relationship would be righted and restored.
But still, there was the matter of what to do about those who could be fairly described as having stirred up the National Ruckus in the first place. After debate, and law-making, and a desire to spare the nation anything like this ever happening again, the 14th Amendment was debated, passed, and ratified. Since certain political persons had shown their willingness to overturn the nation and violate their oaths to the Constitution (NOT to a party; NOT to a Fearless Leader; NOT to a political ideology; NOT to a certain religious outlook/interpretation), these persons, and others in coming years who might try to do likewise, should be kept from the seats of power. The 14th Amendment announces that such persons, by their actions, are already “out of a right relation” to the Constitution, and so are barred from holding office under a Constitution they have spat upon.
That is my take on what is the staked out ground of Thursday’s oral arguments. I like to think this in some way reflects one of the amicus curiae briefs already submitted to the Court: a “friend of the court” filing from a couple dozen American history scholars who have spent their professional lives immersed in the Civil War era and its fallout. Mind you, a stunning 78 (and counting?) parties have filed an amicus curiae Brief so far in this case, trying to clarify something or explain something so that the Court, in applying the Law, can take everything into account in order to strive for Justice.
I have NOT read all 78 of these. I am not a lawyer and have never read even ONE such brief or any other legal brief in my life, and up until the other week, I never thought I’d do it. These Civil War scholars freely admit the same, that court filings are not in their wheelhouse. But allowing for that, I want to impress upon all the Kossacks stopping by to read this, that if you ever in your life want to say or even brag you “have read an amicus curiae brief”, this is the one.
Now don’t be afraid. You have to don’t call up your brother-in-law the lawyer or your next door neighbor with the “I Heart Jack McCoy” lawn signs who binge watches Law & Order reruns (especially the Order parts that are the courtroom/lawyer parts instead of the police work, catch the bad guys Law & parts.)
Before you click ON THE LINK HERE that will bring the Brief of the Historians into your viewer, you should know this thing in PDF is 44 pages. BUT there is Good News! You can completely skim over the first 10 pages while practicing sneezing. Yes, lawyers and scholars and law clerks and judges and justices are paid to read those and even look up all those references and footnotes but You Don’t Have To. You have my non-lawyer permission to do/not do so. But given that, look! They spot you practically 1/4 of the whole thing right out of the box!
And then, on pages 11, 12, and 13, there is your Executive Summary, the “give it to me quick and dirty” Short Version of what they are saying. Its really good, so, if you want quit right there you can! See that? 44 pages long, skim/skip the first 10, pay attention to 11-12-and 13 and call it “Done!” You can even brazenly semi-brag, “I got through it (sorta.) Not as tough as I thought it would be!” (Say that after a quick buff of the nails and a certain toss of the eyebrows and you, too, can impress your friends and mystify your enemies in over 90% of social situations. Not a bad percentage at all!)
OTOH, having gotten that kind of a running start, you’ve only got 30 pages left, (with fat side and top and bottom margins with a lot of white space) so you might give it a crack. And remember, these are NOT lawyers writing this (although the final draft was done over by some lawyers to give it that “amicus curiae” form and polish so the Justices would find it familiar.) Also, while these are highly regarded scholars in their field, the reason they are popular with their students and other faculty is they CAN WRITE really well for anybody. They are going for CLARITY and HISTORY and they succeed.
You can chug right along as the scholars come down STRONGLY on the side of keeping Benedict Donald on the sidelines. And they answer all 3 Trump arguments with history.
1) YES, the President is an “officer” of the United States; this came up in 1867 and 1868 and was smacked into place then and has stood ever since. During an 1868 debate, one Senator arguing against this Amendment said it did not name the President as an “officer” and asked out loud if this meant it didn’t apply to him. He was soundly and roundly answered by other Senators…..and convinced. The Historians go this one better and reach back to 1787-1788 to note that Alexander Hamilton and James Madison both flatly considered the new-fangled President in the new-fangled Constitution (that was still being ratified) to be such an “officer.” If Madison thought so as author of the Constitution, and Hamilton as one of the most articulate defenders of that Constitution in the Federalist Papers also thought so, well that should settle THAT. I mean, even if the Supremes want to reach for the “Originalist” theory of the “Founding Fathers”, its not possible to get more Originally Founding than Madison and Hamilton! (A direct answer to the Trump argument on pages 20-23 of the Brief.)
2) And YES, having violated your oath to the Constitution (whether by taking up arms, like various generals and Confederate officers, since, as a condition of their becoming a commissioned officer, they have to swear to uphold the Constitution, OR by being a member of the Confederate Congress or Executive or Judiciary OR being the governor or legislator or such in a seceded state) you have engaged in Insurrection. This Amendment says insurrectionists canNOT now hold office in the (re-) United States……UNLESS Congress grants you amnesty for your Insurrection. (And they did so in the 1870s and 1880s in several batches on several occasions. And yes, both House and Senate needed to agree on your name, AND it had to be by a 2/3 majority vote in each chamber……so you had to really, truly mean it, and they had to really, truly believe you.)
This is the “self-executing” thing the talking heads are and will talk about. NO court action or civic action is necessary: you did the crime, and you ARE TAGGED. You only get out of it if Congress, by a 2/3 count, lets you off the hook. (Pages 27-30 in the Brief, using the damning example that otherwise Jefferson Davis himself (charged, but untried and un-convicted….ever) could run for election to the White House, something no one on the winning Union side would stand for.)
3) One final argument raised is that the 14th Amendment is time-bound, and referred only to the Confederates and the Civil War era. While it hasn’t been flat repealed (see Amendment 18, Prohibition, being Constitutionally repealed by Amendment 21) the MAGA side says with a straight face that since no one set up a Confederacy in the Trump Rising of J6, (trying REALLY HARD to tie it to the 1860s ONLY….and totally ignoring some of the J6 Coup types stomping around the halls of the Capitol carrying Confederate flags) it doesn’t apply to today. The historians meet this head on in the final pages of their Brief and actually conclude on page 34 with the following (emphasis mine)
Section Three [of the 14th Amendment] also gave the federal government the authority to guide reconstructed, ex-Confederate states to find new leadership committed to equal rights for all. With an eye toward establishing enduring fundamental law and ensuring domestic tranquility, they framed a provision designed to hold future insurrectionists accountable by the same means. They knew that no one in the United States is above the law, not even the President, and that no republican government can afford to return insurrectionists to office. As Missouri Republican John B. Henderson declared the day he cast his vote for the Fourteenth Amendment in the Senate, “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.” May the curse of that hereafter never come again.
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Finally, to move out of the 19th Century to be TOTALLY 21st Century, where nothing seems to have really happened unless there’s a YouTube about it, I give you MSNBC’s Lawrence O’Donnell. In this first YouTube fo about 9 minutes he is interviewing Dr. David Blight of Yale University about the Brief he and the other historians wrote.
Dr. David Blight is the one on the left for this split screen deal. (FULL DISCLOSURE: I have met Dr. Blight once, where he thanked me for my novel (“Encampment: A Novel of Race & Reunion”) on the 1913 Civil War Veterans Reunion at Gettysburg. He was kind enough to read my manuscript pre-publication and provide a back-jacket blurb about my “layered story-telling” and “haunted characters” reflecting on their War years. Yes, I am a fan of his….)
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About a month after that segment, O’Donnell returned at the end of January with another segment, quoting at several times from the Brief itself over the course of 12 minutes. (So, if you REALLY don’t want to do the reading and you still want to get some solid information, this clip may well serve you well.)
Yes, this is a monumentally important case. But also, for once, as I see it from my Not-a-Lawyer perch, the Constitution is plain and clear. On this matter it is timeless and current to our situation. The violation of oath to the Constitution by words, actions and inactions is damning for all of them: Orange Presidents, stinky Senators, high-haired or screeching members of the House, self-righteous prigs of so-called Christianity bowing their knee to the nationalist powers and principalities of this world.
No man is above the law and no man is below it: nor do we ask any man's permission when we ask him to obey it.------- Theodore Roosevelt.
NEMO SUPRA LEGEM, NE REX QUIDEM…….(No one is above the Law, not even the king…..but as Father Mulcahey from M*A*S*H noted, it sounds nobler in Latin.)
Shalom.
