The Outrage Machine
Punditry, complexity, and democracy.
Memeorandum points me to an essay by Teri Kanefield that dissects how the 14th Amendment’s Insurrection Clause went from vestigial afterthought to novel legal theory to cause of partisan outrage in a span of three years. It’s part of a larger project of hers on what she terms “The Misinformation-Outrage Cycle,” the tendency of the pundit class to paint complex issues as black and white and thus generating anger if the outcome doesn’t go their way.
Edited to add: It’s worth noting at the outset that Kanefield isn’t a Trump defender. Indeed, she’s a longtime Democrat, going back to at least the Carter campaign in 1980, and has spent most of her long legal career working for indigent defendants and fighting for voter rights and just treatment of asylum seekers.
The piece is worth reading in full but the timeline is roughly this:
Before the 2020 election, nobody gave much thought to Section 3 of the 14th Amendment.
December 29, 2020, and January 19, 2021, Law professor Gerald N. Magliocca wrote a detailed paper entitled Amnesty and Section Three of the Fourteenth Amendment outlining the history of Section 3, how it has been applied, and it might in the future be applied. Then he published a similar piece in Lawfare.
Indeed, my first OTB commentary on the idea, “The Disqualification Clause and January 6,” came the very next day, in response to a NYT piece by the late Blake Hounshell and Leah Askarinam. I was “highly skeptical” of the idea but noted that it “really hasn’t been tested” and speculated as to how it might be.
Regardless, the idea gained steam:
February 4, 2022: This is from law professor, Brian Kalt, who was interviewed for Politifact, said this about section 3:
In the same Politifact piece, Princeton political science professor Keith Whittington observed that Trump was “potentially” among the “likely candidates” who could “reasonably” be kept from office under Section 3:
June 6, 2022: Democracy Docket published an explainer on How the 14th Amendment Could Disqualify Trump and His Allies. Among other things, the article asks: “How does Section 3 apply to those who engaged with the Jan. 6 insurrection?” and concludes that, “Important legal questions remain unanswered.
December 16, 2022: House Democrats introduced a bill to bar Trump from office under the 14th Amendment. The proposed legislation went into detail about how Trump pushed Pence to refuse to certify the election, failed to do anything to stop the mob, etc. (Obviously the bill was never passed.)
Common to all of those pieces, Kane notes, was that “the issues in applying section 3 of the 14th Amendment are complex and good arguments could be made on both sides.”
Indeed, in what appears to be my second post on the matter, “Banning Trump From Office,” a response to the January 6 Committee invoking the Clause, quotes numerous legal scholars noting that many questions, including whether it even applied to the Presidency, were completely unsettled.
So what happened?
August 19, 2023: Laurence Tribe and Judge Luttig publish a piece in The Atlantic with this headline:
The Constitution Prohibits Trump From Ever Being President Again
The subtitle is this:
The only question is whether American citizens today can uphold that commitment.
September 6, 2023: CREW filed a lawsuit to remove Trump from the ballot in Colorado under section 3 of the 14th Amendment. Here is their press announcement. As you would expect from litigants filing a lawsuit and making a press announcement, what they release is powerful advocacy:
Suddenly, there were no questions! It’s black and white! Any answer other than banning Trump from office as an insurrectionist was dereliction of duty!
Tribe is a recurring character throughout the rest of Kanefield’s essay. What’s amusing—and I only realized going back through my own writing on this—is that he was quoted in the aforementioned NYT report twenty months earlier:
Laurence Tribe, an influential law professor at Harvard University, has held private conversations with several members of Congress on the topic as they puzzle through how statutes written in the 1860s might apply in an entirely new context. And while Tribe’s view is that Jan. 6 was indeed an insurrection, it is by no means obvious how courts will interpret the 14th Amendment without clearer signals from Congress.
“You’re dealing with a very murky and open area of constitutional law,” Tribe said in an interview.
But, having gone on the record with a bold declaration on the matter and the filing of a lawsuit trying to bring this once-novel idea to fruition, steam gathered.
Kanefield embeds a series of ever-more-excited Tweets from Tribe on the matter, including this one:
And various pundits going on television and declaring that the Constitution and democracy itself were at stake in the case. And, suddenly, it was no longer a murky legal theory but a slam dunk. The only question was whether the courts would have the fortitude to do what was right.
Fast forward to a unanimous SCOTUS ruling striking down the Colorado ruling and, quite naturally, people are angry. Even the three liberals are coming under attack for failing to do their obvious duty under the clear language of the Constitution.
Kanefield’s argument is not that the Court got it right. Rather, it’s that by giving the impression that no other outcome was reasonable, legal pundits did a disservice to the public.
Tribe and Luttig are not behaving the way an expert should behave. Instead of trying to educate the public about the law and how it works, they are acting like advocates. People think everything Larry Tribe says is true and he lets them think that.
As a result of Tribe’s time on TV and social media, the public is less educated, not more. I consider that a problem.
In the context of her larger project:
If everyone who appeared on cable news was an emotional hothead, the network would have zero credibility. But when reasonable opinions are set alongside emotionally charged doomsday opinions, people remember doomsday opinions.
Moreover, putting lots of opinions next to each other doesn’t clarify an issue, particularly when the opinions are not flagged as opinions but are put forward as if they are facts. It creates noise.
Noise, in fact, is a Russian propaganda technique. Here is how it works: Russian TV doesn’t shut down truth-tellers. Instead, they release a lot of noise, putting bad information alongside the truth. People come away confused and feeling like the truth is unknowable.
As a result of our current information disruption, people who inhabit certain media ecosystems are being sprayed with a firehose of speculations, conjecture, and hype. They get confused. They don’t know what the truth is.
[…]
Unfortunately, many people who are continually confused (and who are accustomed to casting blame) may conclude that the entire system is hopelessly broken. People who believe a democratic system is hopelessly broken, instead of seeing that democracy is flawed, will give up on democracy. Russian disinformation deliberately tries to confuse people and make them think democracy is hopelessly broken so they give up on it.
Intellectual humility is the lifeblood of a scholar but, alas, deadly for a pundit. “I don’t know” is the beginning of wisdom but makes for a lousy debating stance. And, even if the incentives didn’t otherwise mitigate against it, it’s next to impossible to convey complexity in 15-second sound bytes or 160-character Tweets.
It’s also, frankly, just to become too caught up in the rightness of our own analysis. Two years ago, Tribe had no stronger opinions about the Insurrection Clause than I did, having given it very little thought. When Magliocca introduced the idea in the aftermath of the 2020 election, it would likely have remained that way were it not for the events of January 6 gave rise to applying it to Trump and others. The more he thought about it, the more Tribe liked the idea and, eventually, hardened his stance such that what once was a “murky” and “open” question was now one with no room for debate.
While I started and remained skeptical that the “14th Amendment Solution” would or should remove Trump from office, the more I read about it, the more plausible the idea seemed. While originally dubious, I came to agree with my colleague Steven Taylor that the processes in both Colorado and Maine were actually thorough and well-considered. But, not being a renowned legal scholar like Tribe, I never developed anything like his level of certitude.
Indeed, when I blog about novel suggestions or most areas outside a few areas of genuine professional expertise, I’m almost always doing so to generate conversation and enhance my own understanding through the back-and-forth. Unfortunately, too much of our national conversation takes place in the arena that rewards loud declarations that things are Black or White with no room for gray.
Let’s just add this to the ever evolving rationales for the Supreme Court to reach their favored political outcomes.
To me, the text is clear, and Trump should have been disqualified. Others, like Andy, claim that it’s not clear. But the Supreme Court gave no clarity, other than to, basically, punt the insurrection question. If what Trump did isn’t “an insurrection”, the word has no meaning.
Nothing to see here. Move alone.
This from the piece James linked to is so stupid:
Yeah, and before around February 2020, nobody gave much thought to bat coronaviruses in China.
@Kathy: This was my immediate reaction.
@EddieInCA: It was always more complicated than simply declaring what happened on January 6 an insurrection. Indeed, a Congressional Research Service piece later that month argued that doing so might well be an unconstitutional bill of attainder.
@Kathy: Sure. But her point is simply that, until a law review article raised the issue in December 2020—just before the Capitol riot—there was essentially no legal scholarship, jurisprudence, legislation, or anything else that established with any certainty how the Clause should be implemented. She’s making the case for intellectual humility about that issue.
FWIW, while as noted in the OP, I have become far more sympathetic to the notion that Trump should be barred based on section 3, I do understand that it is complicated.
And my frustration with the SCOTUS ruling is that I think they punted rather than actually deal with that complexity.
It’s all about the primacy of Truth. With a capital T.
One legitimate use of certainty in cases of punditry is to provoke and invite counter-argument. But this is only valid if you are genuinely open to being contradicted. You’d think pundits would be open to contradiction because their goal should be to find the truth. And it’s not as if pundits aren’t shown to be wrong every hour on the hour, but very, very few adjust their thinking, let alone acknowledge error. IIRC William Safire used to do a yearly round-up of where he was wrong. A few others. But most don’t because they aren’t seeking or selling truth, they’re selling themselves as a brand. They aren’t pushing ideas nearly as much as they’re pushing the ‘idea’ of themselves as pundits.
People will value loyalty above truth, that’s a mistake. They’ll value consistency, or the poetry and flow of their words, or even knowingly sacrifice truth to serve an agenda. Now we live in a world where truth is dismissed, seen as lesser, or completely irrelevant. But without truth nothing works. Science doesn’t work, art doesn’t work, relationships don’t work.
Early in my relationship with my now wife the notion of people having their own truths (plural) was coming into vogue. Experts advised giving each other space, not pushing for agreement. In a rare (and very damn rare for me in those days) moment of insight, I had an instinct that this was wrong. So from the start, and for 44 years now, we’ve only ever told each other the truth. There was no ‘agree to disagree’ on important matters, and we often would argue into the wee hours, each defending our positions with all the operatic verbosity of born writers. And we always, in the end, came to agreement on what the truth was. More than four decades of wild changes in circumstances and we are still welded together, unbreakable.
The best thing about ending my fugitive days (aside from being able to drive again) was the lifting of the massive burden of lying. It is corrosive. From that day on I just stopped lying. I never even told my kids there was a Santa Claus. Without truth there is no meaning.
That’s the end of the sermon, now turn in your hymnals to page. . .
@Steven L. Taylor: I don’t know that they punted so much as to put the ball into Congress’ court. If the 14th Amendment is self-executing, then it makes sense that the courts would simply adjudicate whether Trump engaged in or supported an insurrection. But they seemed to rule that it isn’t and requires Congress to pass legislation pursuant to Section 5.
I’m actually persuadable either way on that front but all nine justices agreed that state courts and officials lack the authority to enforce the clause. I’m not sure they’re right for reasons you articulated in your day-of reaction but 9-0 is pretty definitive.
@EddieInCA:
The text clearly states that those who have “engaged in insurrection or rebellion” are not eligible for office. However, the text is largely silent about who gets to adjudicate that, who gets to enforce it and how, and by which specific process and burden of proof. Largely silent except for section 5, which specifically authorizes Congress – not the courts – to pass legislation to “enforce” the Amendment’s provisions.
So the court “punted” those questions to be resolved by Congress, which is exactly the body that should resolve them, unless you like the idea of major questions that Congress can resolve instead of being resolved undemocratically by activist courts.
@Andy:
That was my position from the outset and remains where I am. Where I’ve moved as the debate has gone back and forth is in coming around to the idea that the clause isn’t merely a one-off meant to deal with the Civil War. But the only enabling legislation Congress ever passed, alas, was about the Civil War insurrectionists.
It’s just not clear how it’s to be applied to other incidents or, indeed, what level of incident is required to meet the threshold. Is it conviction under the Espionage Act? A simple finding by preponderance of the evidence as in Colorado?
Strawman arguments are fun, but even those who wanted Trump disqualified recognized the potential chaos and problems.
Tribe and Luttig may be a convenient scapegoat, but they not the reason those who wanted Trump disqualified are disappointed. People saw what happened on Jan 6. They can read the 14th Amendment. The plain language disqualifies Trump. So people are right to be appalled that a thug who incited terror attack on Congress may become president again. That is not a irrational, nor the creation of any media machine.
As someone more concerned with outcomes than textualism, I did not want Trump disqualified and I’m glad the Supremes found a way out. That way should not have included their overreach in rewriting the 14th Amendment to provide a roadmap for future insurrectionists to obtain power.
Hence why critiques of that overreach sound similar, whether from more activist, outcome-oriented viewpoints (Mark Stern, and the liberal justices) or from more conservative, textualist/originalist perspectives (Amy Coney Barrett, David French, George Conway). So thank you SCOTUS for an unnecessarily broad ruling so poorly considered, they accidentally provided a bit of cross-ideological unity.
@EddieInCA:
Worse than that, they gave potential future rebels license to avoid disqualification. They gave the greenlight to insurrection.
And it was not necessary for them to do so after they’d already gotten to 9-0. All they needed to do was say Colorado’s secretary of state and high court had improperly ruled by fiat, disallowing Trump his day in court through established legal proceedings. They could have accomplished their preferred, predetermined outcome with a negative argument, rather than overreaching with a positive one that may handcuff future Americans facing their own insurrectionist unknown unknowns.
@Steven L. Taylor:
I think Trump would probably be disqualified by Section 3 under many different standards, but there needs to be a single set of standards to adjudicate that, just like there is with being a “natural born citizen.” And those standards ought to be created by the legislature and be clear so that everyone knows what they are – the democratic body of our government, and not the courts or piecemeal by individual states.
One of my soapboxes here has long been that process matters – and often matters more than outcomes. Political legitimacy comes more from a legitimate process than anything else – people will usually accept being on the losing side if they think the rules were fair and the game was fairly played. And that’s why I think a standard process is important here, not post-hoc ones made up along the way and applied retroactively using novel and untested arguments and theories.
The problem with SCOTUS deciding the merits of whether Trump is disqualified or not is that it wouldn’t be a legitimate result – whichever way they decided. And the reason is that they’d have to make up a standard, identify the burden of proof, and all the other details, and then apply it to him. As noted, there is a pretty wide latitude in doing that, which would give them a huge amount of discretion in their determination. Whatever they decide, there will be ample room to criticize their rationale and decision on multiple grounds. Because, again, this isn’t a well-tested area of law.
In short, they’d have to make a lot of shit up to adjudicate this. We should not want them to do that!
And the reality is that SCOTUS legitimacy today is completely partisan based on the outcomes of decisions and not how they arrive at those decisions – as we see in this case. People are mad that a 9-0 decision didn’t go their way, first and foremost.
Things would be even worse if SCOTUS ruled on the merits of Trump being disqualified. It would be the very definition of an activist court effectively making law, one that could not be changed or overruled except by a future SCOTUS. That would be bad. Very bad and viewed as illegitimate by the “losing” side regardless of the arguments used to reach the decision.
@DK:
Neither Kanefield nor I are complaining about people being disappointed in the outcome but rather specific pushback coming from many otherwise credible sources that the ruling represented cowardice, was outrageously wrong, etc. We went from everyone involved acknowledging that excluding Trump under Section 3 was a novel legal theory that was completely untested to a large contingent thinking it was Simply Demanded By The Plain Language of the Constitution.
@James Joyner:
Yep, I’d add that we’ve seen a huge reversal in principles as well.
People who mocked it have suddenly turned into originalists and textualists and are now arguing for state’s rights and state authority as being superior to federal authority in federal elections, but only in this one particular case. They argue specifically against any legislative action and instead support a sweeping and conclusive activist decision by undemocratic courts in an area that, as you say, is novel and previously untested in the courts. All to remove a Presidential candidate via undemocratic means after having spent years extolling the virtues of democracy and letting the people decide.
@James Joyner:
These are not mutually exclusive. People haven’t necessarily changed their positions.
Disqualifying Trump would indeed be novel, untested, and unprecedented — because there’s never been a past and potentially future president who incited a terror attack on Congress.
But because there is now, indeed, a major party insurrectionist candidate, yes, he should be disqualified by the Constitution’s plain language.
Trump is novel, but the clause is pretty darn clear. Of course we are not enforcing it because of cowardice. Of course. Are we pretending otherwise? We are or have become a deeply cowardly people, from our abandonment of Ukraine to our refusal to even call the Jan 6 terrorists “terrorists” (like we would have from day one were everything the same except they were brown and clad in turbans or burkas).
Re: Trump’s disqualification, our fears are legitimate. We’re busy lying to ourselves that maybe Trump is not an insurrectionist and about what the 14th Amendment says and demands of us, are we now going to start lying to ourselves that the reason we’re not enforcing it is because we’re afraid of what would happen if we do?
I had to be pretty tough being who I am growing up where I did, so if I didn’t want Trump disqualified because I’m scared, I cannot possibly be alone in my terror. I am not typically fight shy.
@Andy:
There SHOULD be a single set of standards – but there isn’t. The whole problem is that Trump has raised a whole set of issues that had never come up before. So what do we do in the here and now with the rules we have?
Also, GOPs are disputing current interpretation of natural born citizen.
This will surprise no one.
@Andy:
Authorizing congress to pass legislation is not the same as saying that there is no enforcement unless congress passes legislation.
It could mean that courts and administrative bodies will muddle through best as they can without that legislation guiding them. As they often do on the various constitutional clauses where the legislation isn’t clear. Most 1st, 2nd and 5th enforcement is through the courts muddling along. A lot of 14th too. Same sex marriage was legalized based on the “equal protections” clause in spite of legislation.
Here the court punted, rather than muddling through.
@James Joyner:
One wonders where the editors were.
“Before the 2020 election, nobody needed to give much thought to Section 3 of the 14th Amendment. Not even constitutional scholars.“
@Kathy: She’s a blogger, so she likely doesn’t have editors. Your formulation works just fine but she’s not making that argument. She’s simply saying that our understanding of how Section 3 applied to cases other than the Confederacy was a blank slate until December 2020.
@gVOR10:
This is a be careful what we wish for scenario, whereby attempting to make things better instead of leaving well enough alone, we make them worse.
Standardizing language is limiting. Regarding age or citizenship requirements, sure, standardize it. Age is set by an immutable date, the circumstances of your birth are what they are.
But Congress has no way to predict what future insurrection and rebellion will look like. So, ideally, Congress would not try to set such stadards. This would provide a blueprint to future traitors on how to wage war on the republic while remaining eligible.
The authors of the 14th Amendment affirmatively removed limiting language. Legislators of the day declined to clarify further. They were wise. Their restraint meant they didn’t burden future Americans with having to pass new laws before dealing with previously unknown scenarios.
This is why it was unwise for SCOTUS to eschew such restraint and go beyond the narrow smackdown of Colorado preferred by the women on the Court, rewriting the 14 Amendment before letting the election and Trump’s trials render a verdict on his treasonous acts first.
Now no matter what happens to Trump, future troublemakers will either a) know that absent new federal law, they can repeat Jan 6, or worse, and still run for office or b) know that if future standards become law, they can tailor their rebellion accordingly to avoid running afoul of it.
@James Joyner:
IANAL nor a Court watcher, but this seems a consistent MO for Roberts, at least in major, contentious cases.
In Shelby County he pushed voting rights back to the southern states, pretending he didn’t know, and want, exactly what they would do. (A couple days ago I saw an article saying Black voting is way down across the Southern states.)
In Dobbs he pushed abortion back to the states, pretending he didn’t know that many states would ban abortion, the outcome Roberts wanted. In so doing he created a patchwork of chaos, the outcome he said is unacceptable in the CO case.
In the immunity case, it’s hard to see how he could, within the law, support broad presidential immunity. But he can give Trump the delay Trump, and Roberts, want.
In the CO case, you’re right, he handed the ball (more the hot potato) to Congress, knowing full well Congress will do nothing, leaving Trump on the ballot nationwide, the outcome Roberts wants.
Roberts is consistently producing outcome driven decisions, while pretending to just call balls and strikes.
@gVOR10: Darn. Thought I had corrected that. Must have forgotten a SAVE. I lost the conclusion that Roberts is consistently driving outcomes while pretending he’s just letting the chips fall where they may from calling “balls and strikes”.
@Andy:
I came to the other thread super late, so I feel compelled to say after reading through the comments that your contributions were treated unfairly. To be fair to all, I understand why everyone is grinding their teeth at the moment. But still, you took it on the chin and the punches should have been pulled.
On the other hand, one of the things causing anxiety is the state of the courts and the cottage industry squarely aimed at getting long standing precedents overturned if they are inconvenient to right-wing goals. We have seen it come to fruition with the 2A and Roe. We are on the verge of seeing it with Chevron Deference.
Though it hasn’t reached that point yet, there are pieces floating around attempting to argue that “Natural Born Citizen” has been wrongly interpreted. Indeed, Rubio and others have begun to take public aim at how it is currently understood.
I can’t speak for the others on this point. And in the end, I agree with you on the substance and that many people will reverse their previous positions if the ground state changes. But I also feel compelled to push back a little.
It doesn’t require a reversal of positions to say that the current electoral system(s) is (are) is administered at the state level, that eligibility is determined by processes developed and enforced by states, and that this specific question of ineligibility is different. One can merely point to this situation as evidence that the system of national elections should be handled at the federal level.
Likewise, one of the recurring themes on the front page and in comment sections here is the fact that our system does a poor job of capturing majority views. So I don’t think it’s quite the contradiction you’re claiming here.
Indeed, the composition of SCOTUS and now the rest of the federal judiciary is a direct result of the anti-democratic Electoral College and underhanded Senate tactics. Without saying it directly, many of us, with good reason, at least lean toward the conclusion that it’s really difficult to view the government as legitimate in a democratic sense.
I think what this Court is trying to say is, ‘don’t expect us to take the heat, you know, like they did in Bush v Gore.’
Also, the conservative justices of the Court just could not resist setting forth that gratuitous secondary opinion that somehow bothered Justice Barrett too.
@gVOR10:
I think it was important that the “one neat trick” was allowed to work its way through the courts. That’s what was done in the here and now. Unsurprisingly, that effort wasn’t the expedient, easy-button method of getting rid of Trump many hoped it would be.
Now it’s got to be done the more difficult way by winning elections and then getting the necessary legislation passed in Congress to operationalize Section 3. Is there enough time to do that before November? No. Is it still worth doing? Yes.
Thank goodness we have a law and a case history that ensures their efforts will be futile.
@Gustopher:
Yes, as an academic exercise, you could perhaps argue that there could be enforcement without legislation, but it’s not clear how that would function in practice in the real world when no one knows what the rules are and what gets enforced, how, and by whom.
The Constitution doesn’t mandate that Congress write any piece of legislation, but there are many instances, like Section 5, that are put there for a reason.
Those are all different because they involve individual rights, which do not need enabling legislation for individuals to assert them in court. And the same-sex marriage decision applied the principles of the 14th to existing legislation, it did not create marriage rules out of thin air in the absence of legislation by muddling through.
@Andy: I’d disagree; I think it’s that people who have been on the loosing end of disagreements about textualism/originalism (ie, I think it’s an incredibly stupid/unachievable method of deciding things) get really upset when all of a sudden the people who have been lecturing us about how important it is to adhere to the text of the Consitution/law decide that the text doesn’t matter, and the outcome/intent is what matters. You can’t tell me that that’s the standard now, and then when the constitution seems very clear to me in what it’s saying, suddenly say that the text doesn’t matter, or that you aren’t going to even grapple with the text.
So I’d disagree; I think that originalism/textualism is a stupid way to do things, but if you’re going to tell me that that’s the way we’re doing things, then that needs to be the standard.
@Kevin:
Hypothetical scenario — if the new, hip slang for shooting up with heroin was to “bare arms”, and that caught on and was used by everyone, would the second amendment now offer a constitutional right to shoot up with heroin?
I think every reasonable person would say no.
The problem arises when justices are picking and choosing when to apply originalism or textualism, to meet their policy goals.
(Also, relying on the Federalist papers, rather than the discussions at the constitutional convention…)
@Andy:
And Trump’s eligibility on the ballot is an individual right, and he was able to assert that right in court.
Courts in several states found that he had engaged in insurrection, and that the Secretary of State for that state was correct in excluding him from the ballot. We (stupidly) have a system where states manage these elections, and thus the standards for getting on the ballot.
The Supreme Court could have knocked it down by saying that the finding of insurrection was made with the wrong standard (I think they were using preponderance of evidence), requiring a conviction under a certain law (or any of a set of laws), etc. Or they could have upheld.
Any of those outcomes would have been in keeping with how states currently handle elections, rather than creating a carve out where insurrection disqualification is handled differently than age, place of residence, gathering signatures, etc.
@Andy: Today’s discussion has served mostly to reinforce my belief that for most of us citing something as “an affront to the rule of law” simply means that the outcome in question offends our sense of a correct political outcome. At heart, most of us are probably in the “ends justify the means” camp.
@Kevin: While I see the merit to your argument, I don’t think the principle helps in this situation. Congress–specifically the Senate–had the chance to resolve this issue one and for all and chose to be called “out on strikes” by standing at the plate not swinging. All originalism will get you is another unresolvable debate about whether trying Trump for sedition again will constitute double jeopardy.
ETA: “I think every reasonable person would say no.” (in re: Gustopher following)
I would agree. Especially since “bare arms” and “bear arms” are two different rights altogether. The key for the 2nd Amendment “problem,” though, is in the right to arm bears–another completely different right.
@Kurtz:
Lol, it’s not the first time, it won’t be the last, but I appreciate you mentioning it. I knew what I would be getting into.
And those efforts ought to be opposed.
In my view, the federal government should set the standard on questions of Constitutional eligibility, not the individual states. The states should then be able to apply that standard supervised by the federal courts. That is basically what happens with age and citizenship requirements for federal office. State courts do not substitute their own legal interpretations of the meaning of “natural born citizen” to determine eligibility and they ought to be slapped down hard if they tried. They should not be able to do so with Section 3 either IMO. I would have much preferred a ruling limited along those lines, but it is what it is, and the path forward from here is pretty clear.
Well, this is the huge irony. Many of the people who complain about the anti-majoritarian aspects of our system are, in this case, forcefully arguing that the courts—the most anti-majoritarian and undemocratic of our three branches of government—ought to be the sole decider of Section 3 interpretation. They’ve argued vigorously against the idea that the legislature, which is the most majoritarian and democratic branch, should have a role. And they are arguing this in service to a cause that would undemocratically disqualify a major party candidate in the middle of campaign. This dissonance has boggled my mind these last couple of days. How am I supposed to take future claims of fealty to majoritarian and small-d democratic values and principles in the face of that?
@Kevin:
Yeah, there’s a lot of hypocrisy there too.
My view is that justices should consider everything—the plain textual meaning, the original intent, various changes over time, and contemporary reality—and strike a balance. I don’t agree with those who think only originalism/textualism matters, nor do I agree with those who think it’s a “living Constitution” that can be interpreted however convenient.
@Gustopher:
Section 3 confers no right at all – it confers a penalty – unlike all the other Amendments you mentioned and the other parts of the 14th. Penalties require adjudication and enforcement.
@Just nutha ignint cracker:
I totally agree. I long ago concluded that most highly motivated partisans care about outcomes above everything else. That is especially true with court decisions. Process, judicial philosophy, reasoning, etc. don’t matter.
@Just nutha ignint cracker: Many who agree with the political outcome in this case — i.e., not allowing states to short-circuit the democratic process by prematurely disqualifying Trump — find the way this was done faulty. Far more importantly than the powerless commenters here, this cohort includes all the women on the Supreme Court: Barrett, a hyper-conservative Scalia protégé; liberals Sotomayor and Jackson; and Kagan, who leans left but is known as a seeker of consensus.
There was 9-0 agreement with the outcome. The sharp 5-3-1 elbow throwing is all about method, procedure, and interpretation. So I’m not sure how one could look at this debate and conclude it’s just people being mad about the outcome. People across ideologies and partisan lines are affronted by the dangerous implications of the male justices’ overreach — which will stretch well beyond immediate outcomes involving the acute case of Trump.
@James Joyner:
I see this statement:
But then also this:
This is what is so frustrating to laypeople, that no matter what mechanism is proposed, it is somehow not the right one. The right mechanism is This One Over Here.
Oh, and when that is proposed? Oh no no, that is not the right one, it is That Other One Over There.
Article 3 can’t be enforced by a court, only Congress.
Oh, but if Congress passes a law, it is a bill of attainder.
@DK: If you wish to carve out an exclusion for those “many,” go right ahead; I’m content to back peddle from “most” to “many” or “quite a few” or “a lot” or any number of other variations. I understand your point. It doesn’t alter my worldview about the partisan nature of the conversation about Trump or my understanding of how poisonous the partisanship in our nation is.
@Andy:
I have come to believe that ‘Originalism’ and the attendant ‘Textualism’ is now used as a convenience, whenever it can be conscripted to justify whatever end result those Justices happen to want. Dobbs, to me, was a good example – the desired result was to sharply curtail abortion access. Alito went far and wide to come up with a rationale that fit the desired outcome. A lot of Originalism is a just fig leaf.
This is not really very different from how many Christian Evengelicals use the Bible: So, you’re thinking impure thoughts? They’ve got chapter and verse that tells us you’re immoral. You can write forever on examples of this shell game.
@DK:
Well, except that, the problem isn’t that they “found a way out”. It’s that they found 6 different mutually-incompatible internally-inconsistent “ways out”. It’s such an obviously, egregiously flawed legal ruling that nobody can take it seriously. Including (one would hope) future Supreme Courts.
You could never hope to find a clearer example of “we’re going to rule the way we want this to come out, whatever the hell the law actually says.” And that is bad — very very bad — for America and the Constitution in the long run.
@Andy:
I just finished my response. At that moment, two things happened.
The first was I looked at its length and wondered whether I needed to employ a hatchet. Or an editor. Or an editor with a hatchet. After all, from the perspective of the person pointing out a contradiction, it is pretty easy to apply a heuristic: if it takes that many words to resolve a contradiction, then the tension cannot be resolved without pretzeling. I have my original response saved, so if you’re interested, I can post it in the open thread tomorrow.
The second is substantive, easier to explain, and potentially more powerful than my original approach.
Keep in mind that my reply to you was aimed at explaining why those on the other side of the issue don’t see their position as contradicting their appeals to move our system closer to democratic ideals. It wasn’t written to persuade you to change your position. Rather, it was an attempt to explain how it only appears contradictory if the is limited to the design theory of our system. Once we get past that theory and look at how that system has worked in practice, that tension can be resolved. In short: you may not agree with the justification, but my hope was that you could see how it would be justifiable to see a difference here.
But I think you may have overlooked something in your explanation of how the design of our system interacts with democratic theory. One reason for the separation of courts from the levers of policy making is that politics often interferes with the process of determining facts.
In this view, the judicial branch is better equipped to determine the facts of an issue than the legislative branch, which is incentivized to play a little fast and loose with the concept of truth. If that’s the case, then we probably should not want Congress determining the eligibility based on participation in an insurrection.
I mean, we already saw how that works in real time, right? We also saw those who initially blamed Trump reverse their positions over time. Some even said kick it to the criminal justice system, then criticized the subsequent investigations and prosecution as politically motivated.
Moreover, none of us are advocates of pure, direct democracy–it isn’t feasible beyond a tiny group and is probably a bad idea because expertise matters. In that sense, your claim of contradiction can seem to be a version of No True Scotsman.
Finally, advocating for elimination of the EC, expanding the House, and/or versions of proportional systems are a separate issue. One can believe we should change election procedures to improve legislative fidelity to the will of the people and simultaneously believe that legislators are terrible fact finders.
And yes, my original response was significantly longer. But I think this is a better argument. Having said all of that, I want to emphasize that my position on the court decision is pretty close to yours.
@Kurtz:
Thanks for the response!
I don’t disagree with that. As I wrote:
The courts need criteria and terms to determine the facts. That’s what laws are for. For example, we have laws that explain in detail the different levels—standards—when one person kills another person, ranging from justified self-defense—in which case there is no crime—all the way up to first-degree murder. We don’t leave it to the court to come up with those standards and make those distinctions. We have legislation that creates the standards and criteria against which behavior is assessed in the courts.
The example I’ve repeatedly used is the “natural born citizen” clause. We have a law explaining exactly what it means and the courts use that as their guide to evaluate the evidence. I’m not saying and have never said that Congress should evaluate candidates directly to determine whether they are natural born citizens or not.
My view is you need the same thing for “insurrection” in section 3. Legislation defining things like what behavior qualifies? What level of evidence is sufficient (beyond a reasonable doubt, preponderance, or something else?), how do you enforce it? Those are all issues that need to be determined by legislation.
I’ve never said that anyone here wants direct democracy. But I do think the dissonance I described exists. I don’t think one can seriously make claims about representation, majority/plurality rule, will of the people while at the same time trying to invalidate one of the most popular candidates in the country – which is denying the ability of people to vote for him – via blatantly undemocratic means, all while arguing the democratic institutions – like the legislature – should have no role, only the courts.
Again, I’ve never said or argued that Congress should be the fact-finders here. I’ve consistently said that Congress needs to pass enabling legislation that provides the missing elements necessary for the courts to actually do their job in a way that is coherent and not arbitrary.
And, ironically, there is a new “one neat trick” out that says the recent SCOTUS ruling means that Congress’ impeachment and Senate removal vote is sufficient under this ruling. An interesting theory.