432 Comments

I threw up a little bit when you enumerated the gradual elimination of guardrails. I am so afraid, and so profoundly sad about the times in which we live now. I am probably as guilty as anyone. I never took the hateful streams that evolved into MAGA seriously. I always knew they were there. I didn't understand the scope or the danger. I am baffled by the MAGA agenda. I am horrified that the former Republican party has fallen into an abyss. I feel so helpless.

Expand full comment

Let's not forget that the reason the Constitution has endured is that at least for the first 200 hundred years it was effectively ignored. First slavery, then the occasional use of state supported militias to terrorize workers. Women's rights. 100 years of Jim Crow and segregation. The various Red Scares culminating in the McCarthy era. It's only been in the last 50 years that we've attempted to apply Constitutional freedoms to all.

I cringe every time the word "genius" is used in the same sentence as Trump. It's more a matter of him being a desperate sociopath who lucked into wealth, was sustained by a smarter father and got boxed in by his own stupidity.

Expand full comment
founding
Feb 4·edited Feb 4

The Supreme Court is no longer a court, it is a group of people with law degrees from an extinct arrangement of affairs —

Three of whom are full on apparatchiks for the future Fascist regime, and anticipate being rewarded by the new broom for their service;

One of whom wishes for the old days but is not wuite willing to jump onto the side of the three until he can be sure,

One of whom may or may not be a religious fanatic who will go with the three and their Fuehrer, or maybe not— maybe even an unexpected Cato;

And the others just GITMO bait.

This court, if you can dignify it with that appellation for form’s sake, will do everything it can to stay out of the fray until the direction of the wind is assured.

Sorry about that, Justice Marshall. one cannot be forever blessed.

Expand full comment
founding

You omitted to note that Floyd was not only a pusillanimous oath breaker but, luckily, also incompetent as a military leader. If he had been made of sterner stuff, Grant's victories at Donelson and fort Henry, resulting in his famous "unconditional surrender" victory, might not have turned out as the successes that insulated him later in his career, with adverse consequences to the Union, including the failure of Sherman to capture Atlanta in time to assure the re-election of Lincoln.

The saying goes, for want of a nail, a horse is famously lost, and so forth. It could be justly said, for want of an incompetent coward, the Union might have been lost.

Yet the worm of history loves to turn. Many people are saying that for want of a pathological enraged narcissistic demagog, the Republican party and the American Union might have been saved.

We will unfortunately never know. Counterfactuals are a bitch.

Expand full comment

Sure, but I mean is not just all that, but also the filming design decisions the directors are making. They choose dark colors, dark dialog, dark music, dark, dark dark. The same thing happened to Batman. It became the unwatchable Gotham that apparently a lot of people watched anyway. Or that spate of dark, dark, dark apocalyptic series over the last ten years. Or Thrones. Even a lot of sitcoms are dark these days. I find myself giving a new show one or two chances,. Maybe if people refused to assimilate all that negativity into their minds and lives, society would be better off. We need more positive inputs like the immensely popular Lassie, or Leave it to Beaver, etc. Darkness is not necessary to be popular.

Expand full comment

The point about the Twenty-Second Amendment is very important. I’m just as conflicted about using the Fourteenth Amendment to disqualify Trump. But if a candidate (or especially a court) can just ignore the plain text of a passage of the Constitution concerning qualification for office, then he/she (it) can ignore ANY passage.

“Trump is immensely popular and it would be in democratic to remove him from the ballot!”

Now substitute “No person shall … hold any office who … shall have engaged in insurrection or rebellion“ with “No person shall be elected to the office of the President more than twice.” The excuse can neuter them both.

Expand full comment
founding
Feb 3·edited Feb 3

We are seeing that the Constitution matters only to the extent of the number of divisions it commands. Moral force alone is simply an amusing curiosity without power to affect events in the real world.

Expand full comment

Thank-you JVL. As always, you give us great analyses based on true facts. The only thing I don't agree with you is calling Trump a genius. What he did was not based in knowledge of The constitution, he did it because he is a malignant narcissist and thought that he could do whatever he wanted, including "grabbing them by their P...".

Expand full comment

Outstanding and fascinating piece. Thank you! Eerily similar to what happened on January 6. But still, I wouldn't bet on SCOTUS eliminating TFG from ballots, more's the pity.

Expand full comment

"Not worth the pain"? To the contrary, consequences of Court abandoning section 3 will be far worse indeed potentially catastrophic.I

1. MAGA threat of actual violence, effective, organized violence, is grossly exaggerated. Since Jan 6 itself, now three full years, for all the threats and harrassment, there has not been one such act. And only one individual act, by a single person - the failed attack on an FBI field office (the nail gun guy). These people are deranged, out of touch with reality, they live and act in a fantasy world, the one really dangerous thing they do is vote. And if Trump's disqualified, they can't do that.

2 The People the same non MAGA majority already buy disqualification. ABC/Ipsos 56%, either nationwide or state by state. The logic of it is obvious, because all understand cheaters and rulebreakers have to be kicked out of the game, or they'll ruin it.. Baseball fans will remember Pete Rose being banned for gambling. It's the same logic. So how will the People react if Court lets Trump run for reasons that are utter garbage ( there is no legit off ramp, not even close)? Immediately, they will lose what little respect for the Court they still have.

So, if Trump loses, what happens? The Court will be remade, probably by making every Justice with 18+ tenure non voting "Senior", meaning 6-3 liberal, at a stroke. Too bad, Mr Leo.. Maybe Roberts gets this. If he does, why would he NOT disqualify?

Especially since, if Trump wins, he's going to be destroyed by Trump. Already Trump is threatening the Court, remember he expressed disappointment in Roberts on Jan 6. He's praying the Court has the courage to do the right thing, just like he did with Mile Pence! If he gets back in, he'll be able to make good on those threats. He can't now. As President, he'll control the people who protect them, and he'll have the pardon power to protect his thugs. Like Enrique Tarrio and his merry band. Trump will get the Court rulings he wants by the simple expedient of putting Judges in fear of their lives -for real. Maybe Roberts sees that, too.

The right play the smart play, the only SAFE play for the Court is to disqualify.

Expand full comment
founding

The only SAFE course is for the court to supply whatever figleaves of putative legal affirmation Trump calls for. Because after he takes power the careers, and indeed the very lives of the individual justices, will hang upon whether the new regime cares to tolerate them. Given who Trump is, and given the ambitions and intentions of the coterie of sycophants and Svengalis surrounding him, dissent and independence in any quarter will be treated as dictators always do. The Supreme Court of the United States, having nothing more to rely upon to enforce its dictates than moral suasion, should not expect to be any exception. The entire system including the court will, indeed must, fold up like a wet paper napkin when the choice presents itself to stand for erstwhile rule of law or look ahead and embrace the new order.

Expand full comment

The safety of the Court lies only in disqualifying, thus effectively disempowering him while they have the chance. Disqualified, he (and his minions) will be impotent (I refer you to point 1. above); as a candidate, he would have more power; as President, far more, indeed the power to destroy them. Of course he will use it. Folly not to destroy a threat you cannot appease.

Expand full comment

The US Constitution & its Amendments are the foundation of our US Democratic Republic, as established by our Founding Fathers & as modified as intended by our Founding Fathers over time. If the 14th Amendment causes Trump to be banned from the ballot, that is not undemocratic. The same would apply if Bill Clinton chose to run for President- it would NOT be left up to the voters. Clinton would be banned as the Constitutional Amendment says he cannot be elected to a 3rd term. As to dishonest Republicans saying that the 14th Amendment does not apply to people running for President, that is clearly not what is meant, as the drafters of the 14th Amendment definitely did not want Americans to be able to vote for and elect Robert E Lee or Jefferson Davis.

Expand full comment

Are you doing a Half Liz on the 14th? Pretend you simply had to make a decision in re Trump on/off the ballot or something bad would happen to your kids. You have to decide. What’s your decision? I grant that it’s not easy. And the problem is McConnell et al didn’t convict in January 2021. But here we are. What’s your decision?

Expand full comment
founding

It comes down to (a) whole world, (b) Wales, or (c) one's soul. Not a hard choice in America. Souls are negligible considerations in today's world and being cheaply made of inferior stuff these days, are readily replaceable. We can, and in fact do, import new soles by the millions from China and other nations where considerations of human life and dignity are valued at modern specifications. All that is required to exchange the former for the latter is omission of a single vowel -- the You.

Expand full comment

The progression of authoritarianism in the US mirrors its progression in Weimar Germany. Weimar collapsed ten years after the failed Beer Hall Putsch of 1923. Will the US collapse a decade after the failed J6 putsch of 2021? Weimar collapsed because Hitler got a do-over. Will the US give Trump a do-over by letting him run for president again?

Expand full comment

JVL wrote:

*****I’m a ball of conflicting views on the attempt to use the Fourteenth Amendment to remove Trump from the ballot. One thing I am not terribly conflicted about is the original intent of the Fourteenth Amendment and the extent that it applies extremely well in the case of Donald J. Trump.

[...]

The Fourteenth Amendment wasn’t a creative writing exercise. It was drafted carefully in response to specific concerns about actions that real men had taken in the real world, just a few years prior.

John B. Floyd was one of those men, and his actions map remarkably well onto Donald Trump’s actions during the period between November 2020 and January 2021.

Section 3 of the Fourteenth Amendment was written expressly to prevent men like Floyd from returning to power because they had violated their oath of office and could not be trusted if administered the oath again.*****

.

As a prudential matter, this all is inarguable. Whether the drafters of Section 3 of the 14th Amendment had in mind that it would ever apply to a president and whether as worded it actually does applies to a president are other matters entirely.

I find Kurt Lash's December 29 opinion essay in the New York Times highly persuasive. Excerpts from it appear underneath the (gift) link to it further below. The link immediately below goes to Lash's law paper upon which the essay is based, "The Meaning and Ambiguity of Section Three of the Fourteenth Amendment."

Were Section 3 unambiguously meant to apply to the president, I would wholeheartedly support its application in this case, other prudential considerations notwithstanding. Given the ambiguity, I can well understand a United States Supreme Court decision that goes against that of the Colorado Supreme Court. The decision and the dissents will make for extremely interesting and important reading.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838

.

https://www.nytimes.com/2023/12/29/opinion/trump-section-3-14th-amendment.html?unlocked_article_code=1.SE0.yNzS.1V-QnJSw-42A&bgrp=g&smid=url-share

To date, much of the debate over Section 3 has focused on whether the president is an “officer” who takes an “oath.” This is an issue in the second part of the provision. What neither scholars nor courts have yet focused on is the first part of Section 3. The threshold issue is whether the framers and ratifiers thought that the president holds a “civil” office “under the United States.” This is a much more specific and historically difficult question.

Here are the key opening words of Section 3: “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.”

The text begins by expressly naming offices that rebel leaders might secure for themselves on the basis of their local popularity. The greatest fear was that these rebels would return to Congress and join Northern Democrats in thwarting Republican Reconstruction policy.

As Representative Thaddeus Stevens warned his colleagues, without a properly worded Section 3, “that side of the House will be filled with yelling secessionists and hissing copperheads” — a reference to Northern Democrats who had opposed the Civil War. It was possible that a coalition of Southern and Northern Democratic presidential electors would nominate a “hissing copperhead.”

Congressional Republicans were so concerned about mischief in the Electoral College that they delayed the passage of the 14th Amendment in order to make sure the issue was properly addressed. The joint committee’s draft of Section 3 prohibited rebels from voting for presidential electors, but this left open an enormous loophole. As Representative John Longyear pointed out, this prohibition would be “easily evaded by appointing electors of president and vice president through their legislatures.”

Senator Jacob Howard agreed that Section 3 would not “prevent state legislatures from choosing rebels as presidential electors,” and he led the effort to rewrite Section 3 in a manner that closed the loophole. The result is the final version that prohibits leading rebels from serving as presidential electors, whether elected or appointed.

The only reason to secure a trustworthy Electoral College is in order to secure a trustworthy president. So Section 3 focuses on state-level decision making. It expressly addresses three key positions for which leading rebels might use their remaining popularity to disrupt Republican Reconstruction: the Senate, the House of Representatives and state-selected presidential electors.

[...]

It is possible to read Section 3 as impliedly including the office of president as one of the “civil” offices “under the United States” covered by the general catchall provision. It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers, but the text is ambiguous enough to make this a possible reading.

However, if the framers meant the catchall provision to include presidents and postmasters, they were remarkably negligent. According to longstanding congressional precedent and legal authority, the phrase “civil office under the United States” did not include the office of president of the United States. As Joseph Story explained in his influential “Commentaries on the Constitution of the United States,” the congressional precedent known as Blount’s case established that the offices of president, senator and representative were not civil offices under the government of the United States; they were the government of the United States. The phrase “civil office under the United States” referred to appointed offices.

In addition to legal authority, there is also common sense to guide us. The text of Section 3 is structured in a manner that moves from high federal office to low state office, and the apex federal political offices are expressly named.

Expand full comment

Thank you for more background on the 14th. Can we shout this from the rooftops? My only question, which I would love a few of the Bulwark crew to tackle..is Trump smart? Is he is genius? I’m 100% serious. Is he? Even those who oppose him, like myself, can’t take him seriously because I think he’s an idiot. Is that my blind spot? “Trump’s genius is that he realized this truth long before the rest of us did.”

Expand full comment

I was planning a similar comment. Calling Trump genius drives me crazy. I feel like he's a clueless grievance ridden idiot. He doesn't even know that the things he does are wrong, unpopular, dangerous, etc. He just says whatever comes to mind at the moment, with no thought at all. Unfortunately, those thoughts appeal to a fair number of our fellow citizens. Those fellow citizens are worrying me, because together they feel like a raging wildfire in the making.

Expand full comment

But if JVL is always right☺️...I think it’s worth reframing our thoughts. What if Trump is a genius? An unstable one though. 😤

Expand full comment

It doesn't matter what it's called. I never would have and never will vote for him. And as long as "his" party considers him representative of their beliefs, I won't vote for any republican, for any office.

Expand full comment

Nah, sociopaths suck up info that they need to manipulate people, and their brain reacts to things in the form of "does this help me." That is not genius. It is narcissistic and why he has no knowledge of simple information [Nambia] much less the ability to process complex ideas [COVID]. JVL is being sly, IMHO, although he could correct me. "Genius" at being a sociopath is not actually what most people would consider "genius."

Expand full comment

I have to say something about Vikram Amar. He was a terrific Dean of the University of Illinois Law School. And his academic work is rigorous and trustworthy. He is worth following on Justia.

Also, I too am very surprised that I have never heard the story of John B. Floyd until now. What a story! It maps on to Trump’s nefarious misconduct almost perfectly.

Expand full comment
founding

You weren't a civil war buff. Those of us who are particularly appreciate JVL's historical note. Donelson and Henry were, I submit, critical events in creating, and later protecting, the career of US Grant, without whose particular appearance on the stage of history, the American experiment might well not have lasted to the present day.

Alas, in even the largest hourglass, there is only so much sand.

Expand full comment

Why are all the people in congress who participated in insurrection by parroting trumps narrative about the election and voting not to certify biden not disqualified from serving? Why is the qanon shaman allowed to run for office? The heritage foundation openly supports overthrowing our form of government in their project 2025 - gop governors are actively supporting defying rulings by SCOTUS -arent these all insurrectional acts that should trigger the 14th amendment?

Expand full comment

They have to be challenged and a complaint made to have it triggered.

Expand full comment