This isn't a good application of Schmitt because neither the CO court nor the Maine SoS have the final say. They are also not couching their argument in the emergency/state of exception terms, but in terms of obedience to the ordinary textual meaning of existing constitutional law.
In Schmitt's terms within Political Theology, a "general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm." So in this 14th Amendment case, the officer and the CO Supreme Court were claiming to act within a preexisting judicial norm in the form of the ordinary textual meaning of § 3 the 14th Amendment (the bit about participating in insurrections or giving aid and comfort to enemies barring one from office). They were not claiming to act as Schmittian sovereigns, departing from legally defined norms in the pursuit of their own definition of public safety or the public interest.
The split nature of sovereignty under a liberal constitution was part of what Schmitt critiqued in Political Theology (PT). "If such an [emergency] action is not subject to controls, if it is not hampered in some way by checks and balances, as in the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety. All tendencies of modern constitutional development point toward eliminating the sovereign in this sense."
So straightforwardly applying this to our situation, the liberal constitutional order is working as intended, because the sovereignty football is always being snatched away by various Lucys before the would-be sovereign could kick it.
A State of Exception would be a hidden council of Tyrants declaring that the normal constitutional processes had to be suspended without reference to preexisting constitutional norms. As Schmitt writes in PT referring to an analysis of the post-WWI German Constitution, the division of emergency powers between parliament and the Reich president "[corresponded] to the development and practice of the liberal constitutional state, which [attempted] to repress the question of sovereignty by a division and mutual control of competences." However, unlike in our system, he points out that Art. 48 of the German constitution potentially provides unlimited power without check. Our system doesn't do that, so any would-be tyrant would not find an easy textual justification.
I think this is a fair point, but I think the 14th Amendment itself has the flaw that it doesn't describe what participating in an insurrection is in fact. The closest to a legal definition I can find is from the Supreme Court opinion on the Prize case, and even there it isn't super clear, other than Courts of Law not being able to operate being a signal. That obviously doesn't apply in this case, but it isn't entirely clear to me that there is anything that defines legally the difference between insurrection and general disorderly conduct. For instance, why are those who attacked police precincts in 2020 riots not called insurrectionists but the Jan 6 people are? It would seem that someone would have to be convicted in a court of law as participating in insurrection (however defined) for the 14th Amendment to kick in, because there does not seem to be another definition that is obviously factually agreed upon to work from. Otherwise whether or not someone engaged in insurrection depends merely on the say so or whim of the official applying the law.
All that to say, it isn't clear to me that someone can have the 14th Amendment applied against them without first being convicted of engaging in insurrection by some defining statute. Otherwise, invoking the 14th Amendment in absence of a generally agreed upon definition of insurrection is in and of itself an exercise in declaring a state of exception. The Secretary of State of Maine does not have the constitutional power to declare someone an insurrectionist, so without a court case to declare such there is no legal authority to make the decision that leads to applying the 14th. In other words, there is no legal authority to go from the default rule of "he can run for president and be on the ballot" to the exception of "we decide who can be on the ballot".
That is a similar definition to the Prize case regarding Courts of Law, where at best an insurrection is defined as the courts or other justice apparatus not being able to function. Which is fine, although it is a very finnicky definition that doesn't seem to include Jan 6 or exclude the 2020 riots. Nor does it make clear what it means to participate in those insurrections means. At a glance, the President seems to get to decide what is, currently, an insurrection based on whether or not the normal execution of courts is going on, which makes it unclear as to whether a sitting president even can participate in insurrection. It is also worth noting that insurrection is lumped in with domestic violence and conspiracy in the middle of that statute, so the definition is again a little questionable.
So, again, the issue is that what counts as "insurrection" is not really defined clearly outside of preventing the courts from functioning, but rather seems to rely on a colloquial understanding of what insurrection is. By the definition of courts functioning, Jan 6 wasn't an insurrection, as the functions of a state (DC isn't one, anyway) were not impeded, and post facto signs that it was an insurrection such as the President making a proclamation to disperse, and that not being followed proceeded to send in the National Guard didn't happen.
The relevant section is here "Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1)so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2)opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution."
So, again, if the courts are functioning and the people involved can be tried normally, it can't be an insurrection, and even if the courts aren't functioning it isn't clear who counts as participating in the insurrection. Arguably the capital guards who let the protestors inside would count as giving aid, or those in charge of security who didn't do more to stop it.
I think the best we can come away with is "If that is the definition, there absolutely was not an insurrection." If we want to say "Well, that is too narrow, we all know what insurrection means and that early statute assumes the meaning" that needs to be demonstrated, and trials held to determine whether a particular person counts as being a participant in the insurrection, and what that means. Both points are required for the 14th Amendment, that an insurrection happened and the specific person participated.
You could make a gonzo-originalism Bostock style argument that what "insurrection" meant at the drafting doesn't matter, and what really matters is the popular and accepted meaning of the term in 2024. That it wouldn't work today also exposes why Bostock was a mistake. In the Bostock type of analysis, the media and academia decide what it means because they have strong powers of persuasion to alter even such load-bearing terms as "for reason of sex" over time.
It'd be harder to win on a Bostock style argument today because, as another commenter has mentioned, there's a statute that does define it, and that should be what controls even notwithstanding a gonzo Bostock argument.
Forgive me, I went to law school. One of the things I saw there is how much judges "interpret" terms and precedents to get the outcome they want. Everyone says they are staying within constitutional norms but in reality, they may not be. In the words of Alice in Wonderland's Humpty Dumpty, "When I use a word, it means just what I choose it to mean — neither more nor less."
In the 240 history of the United States how often has a state official unilaterally decreed a person unfit for election due solely on their opinion?
Colorado & Maine are exceptional actions. They are not following an existing norm but creating an argument and without Due Process acting on it. They are being tyrannical all while claiming to defeat tyrants.
This is the nature of despots. They argue the "other" is such a threat to civility that the "other" must be removed from civil society by any means possible.
To be fair, we have did it numerous times, we just generally do a better job fluffing the justification and lip service. Eugene Debs immediately jumps out and I'd bet on a deep dive one could find thousands of other instances especially once you got down to state or munipal elections.
Right, Schmitt defined the state of exception not as extraordinary or emergency circumstances but specifically those for which rules, procedures, grants of authority and controls limiting their use had not been provided for by pre-existing laws, and which would be declared and with power seized or self-authorized in a manner indifferent to established law.
There is the tricky situation of when the law has a general procedure for any kind of 'emergency' worded so vaguely that one cannot really tell the difference between law and the making of exceptions to the law, and such is alas the case in the US today.
A state of exception would be to suspend Habeus Corpus which is not unprecedented in the US. The whole notion that Schmitt was describing was to point out the flaws in liberal constitutionalism because in his words, liberal constitutionalism, like all legal forms, has its own flaws and blind spots and those blind spots will inevitably be exploited which reveals the true nature of what is behind said concepts of juridical form which is power. He recognized that these forms of law are basically extensions of religious articles of governance coded in secular language and the exception is effectively what would be considered a miracle in theology. Well who has the power of miracle or the suspension of the laws of nature? God. But in secular world, it's the sovereign and the sovereign is the one who can suspend what ppl would consider norms or the way things are. The structure is the norm or the rule but in his words the rule proves nothing, the exception proves everything since the exception reveals that the norm was simply a rule that was enforced until it wasn't by a power who exceeds said rule thus proving that the rule was arbitrary to begin with by the person or ppl who have actual power/sovereignty to exceed the rule.
Suspension of Habeas Corpus doesn't count as the Constitution specially provides for it and is explicit as regards the only circumstances in which it may be done. For example, during rebellion. Lincoln suspended it (in a limited manner) early in the Civil War, and SCOTUS ruled his action unconstitutional, but he just ignored the ruling. It's arguable that continuing to suspend in defiance of the ruling was Lincoln effectively declaring a state of exception.
No him ignoring the ruling and going about his own business demonstrated what legal theorists would like to point to as a violation but in practice a reflection of realpolitik aka sovereignty in reality. One can hold onto the notion of formal declarations but they mean nothing if not believed or followed in practice. The Soviet Union had a constitution and it was a formal document of tremendous influence haha. One's mind who insists on following rules and a soul tied to myths needs to believe in certain formal states because entertaining the possibility that its actual just a bunch of ppl with power over others under an obfuscation methodology combined with an audience steeped in denial, it makes one very uncomfortable
Obviously it wasn't a formal declaration, it's just the way of describing what Lincoln did using Schmitt's framework and terms, at least, from Chief Justice Taney's point of view.
As for the rest, you are making the same error the old-school "Legal Realists" and "Critical Theorists" made, which is to treat the question as Boolean and one solely of kind instead of degree.
In a way, sure, the way any government justifies its legitimacy and explains how power actually works is always kind of a sham, and a lot of people fall for it.
That this ever got treated like some subtle insight only uncoverable by modern academic super-geniuses would have made any astute observer of human affairs from any other time in history laugh out loud. The follow-up claim that, knowing this, it should now be possible for the first time in history to fashion a sham-free governing structure for society would have made them weep even louder.
On the other hand, while some degree of sham seems unavoidable, the mythos of power is not always completely a sham, and the level of sham turns out matters tremendously as regards the quality of governance.
The feedback interactions between stories, institutions, behaviors, attitudes, and rules is such that when sincerely believed in and pursued vigilantly as ideals by a critical mass of people in a society, then shams can sometimes bootstrap themselves into far more than mere cover-stories as odds with the underlying reality, and instead become the accurate description of how things actually work and the real underlying state of affairs.
It was once common to write about the collision of some newcomer with the cynicism typical in and adaptive to the low-trust society from whence he came, to hear about the formal description of how some high-trust Anglospheric institution worked, and then tug on his lower eyelid remarking, "My eye! What a ridiculous joke. Now, tell me, how does it *really* work, eh?"
And then it would be explained and shown to the newcomer that, actually, things really did in fact work that way, and this would completely blow the newcomer's mind as prior to that very moment he could not have imagined such a thing to be possible. And he is then exasperated by the fact that he simply cannot convince anybody in the old country about this, who all agree that this guy is telling fables and is probably up to something sneaky. This exact scenario played out in my own family, and I would not be surprised to learn something similar occurred literally millions of times.
If getting back to the widespread norm-following of that kind of high-trust society requires participation in the perpetuation of a bunch of those old small salutary, self-reifying shams, then, having seen the alternative, all I can say is sign me up. But apparently we'll have to run out of ruin in a nation before there's any chance of getting back to that situation.
Well said and yet the AI ran technocracy is coming and hopefully for once we can dispell with the shams. A long time ago Arnold spoke about legamorons and how arbitrarily enforcement is what allows them to exist, once we an AI with near perfect information, execution, and no discretion the government is going to have to finally for the first time in history pass well written and concise laws and actually follow them themselves for fear of the AI, i.e. no more everyone commiting multiple crimes a day because the law is just intentionally poorly written.
Probably not in my lifetime but I can hope in my grandchildrens.
Sometimes the winds of destiny aka the cycles of civilization have a say that no one wants to admit. Those who deny it fail to realize that seasons are cyclical and predictable, and so is the cycle of a human life. But somehow societies are different. Denial is the drug that keeps on giving
Our elites in government, media, academia, and elsewhere, frightened at the prospect of rising popular rejection of their incompetent and corrupt dominion, are trying to turn everything into a "crisis" that demands normal constraint of law, custom and even morality be discarded so as to allow perpetuation of their rule of grift.
They do this by exaggerating to absurd levels any and all possible dangers. They have exemplify H.L. Mencken's statement that "The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." Even better for these purposes are hobgoblins that are not entirely imaginary, but which offer risks that can be greatly exaggerated,
I'm trying to imagine a world in which Trump didn't get three appointees to the Supreme Court. Either because he lost in 2016, or because three people died earlier and Obama got to pick.
I could imagine a Supreme Court full of Sotomayors keeping Trump off the ballot. I don't think you need to imagine much to imagine what the other rulings would be like.
Trump is a problem. His existence makes people lose their mind. However I see no Constitutional argument for disqualifying a person from being elected because his or her existence leads certain people to become irrational.
The irrationality of an official decree to keep Trump off a state ballot is obvious. If it were obvious Trump was unqualified to be elected than a vast majority of voters would concur and Trump would not win that state's electoral votes. A ban on Trump is a reflection of the delusion of the official. If anything warrants an emergency response it is in protecting society from such deranged government officials.
If the SC rules in favor of Colorado and Maine and simply states whatever excuse it chooses to make and despite all that you still don't agree with it, you'll still accept the results because rulings will simply be rationalized underneath an underlying acceptance that power is what makes decisions and rules are simply followed to avoid acknowledging this stark reality
You weaken your case by falsely claiming that Trump was disqualified because his “existence leads certain people to become irrational.” Trump was disqualified because rational people made a rational interpretation of the Constitution’s insurrection clause in the light of Trump’s actions before, on, and after J6. Their interpretation may well be wrong, as the fact that SCOTUS has agreed to hear the case suggests, but it is not insane.
Disagreeing with Trump or with your interpretation of the Constitution is hardly proof of either irrationality or derangement.
I understand the point you are making here, Richard, but I have asked the various supporters of this effort to remove Trump what they would think of a similar effort to remove Biden or any Democrat. I have also asked them, when they point me to the Colorado court's decision for the evidence of the legality of the action, what they are going say when SCOTUS over-rules these decisions and explains why- are they going to acknowledge that the Colorado court and the Maine SoS got it wrong afterall. I never get an answer to those two questions. I suspect that I don't get an answer because they really don't believe these inferior branches in state government have the right to make these decisions by matter of law, but because they think it is the right decision, they are going to support it full-throated regardless. I consider this a kind of madness at best, dishonesty at worst.
So Maine and Colorado are implementing federal law - but Abbott in Texas is being sued because he is trying, if extremely belatedly, to implement federal law.
Health and education and marriage laws should be at the state level.
Letting tyrannical judges rationalize grabbing federal power thru penumbras or other meaning twisting fake logic was and is wrong. Every state should be making their own laws, which might be… what is that word? Diverse.
I expect that SCOTUS will consider two preliminary issues: (1) Did J6 constitute an “insurrection”? (2) Is the President an “officer”? If the answer to either of these questions is no, then Trump stays on the ballots. If the answer to both is yes, then the Court will have to decide a third question: Was Trump part of the insurrection?
Perhaps a fourth question that the Court could decide is how much control do the states have over federal elections.
One problem that norm breakers like Obama, Trump, and Biden cause is how to clean up the messes that they create.
Possibly, equally I think they might take the easy way out and go the Michigan route and simply state "The insurrection clause only prevents holding office, it does not does prevent running for office. As such no state may bar someone from running for office period hard stop. Should said person be elected, normal succesion rules would be followed, so in this case, the president would be sworn, immediately be ineligible, and the VP mere seconds later would immediately assume power and be sworn in as president"
What is the "Due Process" for judging a person guilty of Rebellion / Sedition / Treason? What of Trump's actions constitute rebellion against the government? Is opinion sufficient proof? Or is actual legal determination needed?
Observe that Biden refuses to enforce the border and is literally enabling an invasion. Do you agree that a state official could unilaterally decide these actions of Biden constitute a rebellion and this justifies Biden being removed from the ballot?
What is the future of the United States if individual officials of each state can decree on their own regard who can and cannot be on the ballot?
The fact that this is all unfolding with an actual invasion going on in the background certainly doesn't incline one toward a generous interpretation of the actions of the Maine and Colorado Democrats.
It should be the other way around. The circus on Jan. 6th should be the background. The border should be the story.
Ok, those are reasonable arguments that might sway someone who is on the fence. I don’t think that your original claims would have convinced anyone not already on your side. “You’re wrong because you’re insane,” is not a great way to win a debate.
Both Mr. Trump and President Biden are known quantities with most people having a firm, formed opinion of each man's character and abilities and are unlikely to switch and not vote for their candidate in 2020.
If President Biden beats Mr. Trump by 6 million votes then it proves there were no shenanigans in 2020.
If Mr Trumps wins the popular vote then it strongly suggest there were irregularities in 2020.
If you thought it was stolen in 2020, why would you not think it will be stolen in 2024? Have there been substantial changes to the electoral process that would prevent this?
I don’t think that the election was stolen in 2020. Trump hired a team to investigate the election and they found no evidence of fraud large enough to affect the outcome.
I believe that Trump lost and lost largely through his own action and inaction. First and foremost, he handled the two big crises of his presidency - COVID and the BLM riots - badly. He told his supporters not to use mail-in voting, thereby putting himself at a disadvantage. He refused to prepare for the first debate. During the debate, he refused to keep his mouth shut while Biden was self-destructing.
Yes, a number of states - including states that Trump won - violated their own laws in the way they ignored procedures when altering the election rules. However, Trump failed to protest the changes prior to the election. Had he been competent, or had a competent legal team, he would have filed lawsuits well before the election. Instead he waited until after the election to protest, and then only in the states he lost. Condemning illegal rule changes only when you lose and ignoring them when you win is hardly a principled stance.
Yes, Joe Biden lied, and got fifty former officials to lie, about Hunter’s laptop, but Hunter’s foibles weren’t a key issue. Even now after all the revelations so far, the worst that has been revealed is that Joe might have taken money from foreign interests when he was not in office. Sleazy, but not illegal. That’s not to say that we won’t find out more, but right now, we don’t know that he broke any laws.
The bottom line is that Trump lost the election to a very weak candidate because of his own incompetence. Neither he nor his supporters are willing to admit that, so they’ve been casting around for another, any other, explanation, including North Korean frogmen wading ashore in Maine to stuff ballot boxes and claims that the ballots were counted in India.
I was asking the other guy. I'm trying to understand the mindset that if you thought it was stolen in 2020 that wouldn't happen again in 2024. If you don't think it was stolen that wouldn't really count.
Let's say you felt that election procedures in 2020 were "not on the up and up", Trump not challenging them doesn't really matter for this question. Which procedures and have they been changed?
Like, if you thought mail-in or absentee ballot procedure was wrong, in what states has this been changed since 2020? If you think drop boxes are wrong, in what states has this been changed since 2020?
I ask from genuine ignorance. I do not follow all this. I vaguely think that election procedures seem lax, and my preferred method of election would be paper ballots in person on Election Day requiring a government issued photo ID, with procedures in place to announce the results that night if possible and if not the next day.
Have any state election procedures become more like that compared to 2020? I don't know. You would think this would be a major issue and all over the news, but I haven't heard a thing.
Unless someone can give me a list of what's changed, I don't really understand why someone who thought it was stolen in 2020 would think it would not be stolen in 2024 (using as broad an understanding of stolen to include "legal in 2020 but probably shouldn't be legal".
"Neither he nor his supporters are willing to admit that"
Bro, did you see 2016? I'm fairly certain we are fighting a proxy war with Russia because people think Putin hacked the ballot machines.
This isn’t entertainment. This isn’t a production of Hamlet in which, at the end, the actors who have been slaughtered in the course of the play stand up and take a bow. This is real life and the lives of a lot of real people will be affected - and possibly ended - as the result of who is elected in November.
Unfortunately, the election will likely be won by one of two men who are uniquely unfit for office. One who has pledged to dedicating his presidency to revenge, and the other who is visibly failing, both mentally and physically, every day.
We’re facing huge challenges at home and abroad. We need real leadership - leadership that we are very unlikely to get from either of the probable candidates.
I would certainly prefer a Trump vs Biden rematch to Biden being declared president by default.
Let's try to remember that Biden was THE BEST CANDIDATE that the DEMs put up in 2020. This isn't just a popularity thing (Biden has anti-charisma). The rest of the docket were a bunch of socialist and woke scolds that would have been a lot worse. If anything most of the disappointment with Biden is that he's a spineless senile old man letting those people run the show anyway.
Trump was the only non-RINO in 2016. The rest couldn't even admit the Iraq War was a mistake in the primary. All of them wanted to run Bush/Romney-ism over again.
I could maybe argue for this or that other candidate. DeSantis would have been my favorite, but he's also run a terrible campaign and doesn't seem to have any ideas what to do with the presidency. Overall I'd take Trump over the GOP establishment candidates in a second.
If DeSantis has won any primaries by the time of the CA primary, I’ll send my absentee Rep primary voting for him. Or the wild Ramaswamy (8 year term limits for bureaucrats). But I’m 90% sure Trump’s Rep popularity with the working class voters will have him dominate.
I think it’s some 60-80% chance Biden won’t be on Nov ballot.
Articulating Opinions and Opposing Viewpoints: The essay does a thorough job of articulating the author's perspective on the Vietnam War, particularly in terms of U.S. foreign policy decisions and their consequences. However, it lacks a clear articulation of the opposing viewpoint, especially regarding critiques of U.S. involvement in Vietnam and alternative interpretations of the war's legacy. The essay could benefit from a more balanced presentation of different historical perspectives on this complex issue.
Respect and Avoidance of Attacks: The essay maintains a respectful tone throughout and avoids name-calling or attacking motives. It demonstrates an understanding of the complexities of war and the challenges faced by leaders, though it could benefit from acknowledging the moral and ethical criticisms more explicitly.
Rebuttal of Opposing Arguments: The essay does not effectively address or rebut the strongest arguments of the opposing side. While it provides a detailed analysis from the author's point of view, it misses opportunities to engage directly with counterarguments about the war's justification, conduct, and consequences. A stronger essay would include a more nuanced discussion of these points, possibly acknowledging areas of valid criticism.
Overall, the essay presents a detailed and thoughtful analysis from one perspective but falls short in fully engaging with and respecting opposing viewpoints. It would benefit from a more balanced approach that includes a clearer presentation and rebuttal of the strongest counterarguments. This would enhance its intellectual humility and openness to diverse perspectives.
Grade: B-
The essay is strong in its detailed historical analysis and respectful tone but needs improvement in balancing perspectives and engaging with opposing arguments.
The argument is that Trump was inciting insurrection, which is violence to overthrow the govt. nobody was doing insurrection, and nobody has been charged with insurrection.
No matter how many times The NY Times lies and calls the Stop The Steal protest an insurrection, it wasn’t. Ashli Babbitt’s family just filed. 30 mln $ wrongful death lawsuit.
There are only two legal ways to bar Trump from the Presidency- the House can impeach him again, the Senate convict and then set the punishment of barring him from future office- this could have been done in January of 2021- it wasn't. Congress could do this again tomorrow if it chose, and while I would disagree with the action and vote accordingly, I would admit that this was an entirely legal method of barring him from the ballot- a decision I am sure SCOTUS would not attempt to overturn. The other legal way is to allow Trump to run and then have Congress, on January 6th of 2025, refuse to accept his electoral slate throwing the election into the House and choosing, in the end, someone else as President- I would also view that as entirely Constitutional, though I would again dislike the decision.
One of my conditional predictions for the coming year is that if Trump does win the election in November, the Democrats are going to do exactly the same thing Trump tried to do on January 6th 2021- get the VP to refuse to accept the electoral slate, only with a mob of armed Democrat protestors camped out in the Capitol building to make sure it is done this time.
But now there is a new law requiring the VP to submit the electoral slate. Passed, ?, Oct. 8.
Pence might not have been acting illegally, but Kamala Harris would certainly be. Tho that law could, of course, be declared unconstitutional by the SC if ever tested.
Congress is sitting right there and can throw out any rule it likes in that setting- no need to even have a president sign anything. The idea that Pence could act in that way was always silly- Congress would have simply overruled him that day and Biden still becomes the President. The legislation passed, such as all of the legislation governing elector counting, are almost certainly constitutionally invalid since it is one Congress seeking to bind another.
I promise you that if Trump wins, the Democrats will attempt to do exactly this- get Trump's electoral slate thrown out on January 6th 2025 and hope to win the Presidency in the House. The difference from 2021 is that the media will support this effort shamelessly and the rioters occupying the Capitol will be Democrats this time. Yes, Trump opened a door in 2021 that might well be used against him by more cunning politicians. However, I think this a scenario that is extremely unlikely- with mail-in-voting, the Democrats can't lose next November.
It’s not just the Left either. Here Jaffa in “Crisis of the House Divided” offers advice from Aristotle on true statesmanship:
“If . . . there be some one person, or more than one, although not enough to make up the full complement of a state, whose virtue is so pre-eminent that the virtues or political capacity of all the rest admit of no comparison with his or theirs, he or they can be no longer regarded as part of a state; for justice will not be done to the superior, if he is reckoned only as the equal of those who are so far inferior to him in virtue and in political capacity. Such a one may truly be deemed a god among men. Hence we see that legislation is necessarily concerned only with those who are equal in birth and capacity; and that for men of pre-eminent virtue there is no law—they are themselves a law.”
There are circumstances in which that's exactly how it should be.
Specifically: You can't have Rule of Law if you don't already have Rule of Law.
By "Rule of Law" I mean a system that works in accordance with Lon Fuller's and Hayek's descriptive principles. I don't mean perfectly, but it's easy to imagine an 'index' or 'score' for such a thing. The score in the US used to be quite high and a justified source of national pride, but it didn't last, got really terrible, and has been continuously deteriorating for a long time.
It is really foolish to favor or insist on a particular application of the Rule of Law which relies on a system that can only be sustained by a widespread commitment of elites from all factions to scrupulous and good-faith honoring of norms, when the species of officials so committed has been endangered for decades and is nearing the verge of extinction.
And so when your Rule of Law index falls below a failing grade, then there's a solid argument that many laws should indeed *not* apply to officials.
There were a number of countries - for example in Latin America - which explicitly provided for this exact form of lifetime legal immunity for top elected leaders or certain senior-level public officials, because of very bad experiences with the common failure mode resulting from their lack of Rule of Law.
The failure mode of making public officials subject to ordinary law has two related elements.
First, that it makes those officials subject to malicious prosecution, selective application of rules only to ones enemies, bad faith abuse of discretion, results-oriented interpretation, and lawfare harassment when their political opponents are able to obtain control of or otherwise leverage those legal systems to produce such outcomes, with very little risk to themselves but potentially personally-ruinous risk to an innocent accused in the manner of "the process is the punishment".
The second part is what you might call Silverglate's "Three Felonies a Day" plus Beria's, "Show me the man and I'll show you the crime" on steroids, because the laws purporting to regulate political and public activity are extremely numerous and extremely vague and often - because the particular activity being regulated provides no good bright lines or limiting principles- operate as no more than a smokescreen enabling a deciding official to hand-wave away corrupt favoritism and double-standards, and to get away with treating the same behaviors differently depending on who did them.
In particular, every system claims it is justified in going after corruption on the one hand and threats on the other. People instinctively think this makes sense, but it often doesn't. That's because in reality the ways you can influence another person to get them to use power to do what you want fall along a whole vast spectrum of dangled carrots and menacing sticks, and any attempt to draw any line on what is allowed or not will be arbitrary, gamed, and impossible to capture in mere text without opening the door to all kinds of political mischief camouflaged as 'interpretation'.
Of course the trade-off is that lifetime immunity allows politicians to get away with all kinds of corrupt behaviors and, knowing this, most of them are not the sort of people who have sufficient character to resist those kinds of temptations. On the other hand, in a system where one faction dominates in terms of relative power to engage in lawfare, you end up with a system that *pretends* to be one of Rule of Law, but which, in reality and in effect, is guaranteed lawfare harassment for members of one faction, and lifetime immunity for members of the other.
It is really kind of depressing to watch the obscenity of American lawyers who have intimate familiarity with exactly how far the Rule of Law has collapsed in the US to somehow compose their arguments as if that wasn't true and to try to seriously argue with each other over what might make someone Constitutionally disqualifiable, but without starting every post and counter-post with, "Now, none of this matters because we don't, but, assuming for the sake of argument that we did had good Rule of Law in such matters in this country, then ... "
You can imagine the equally obscene - though much more excusable - case of some legal scholars in the early Soviet Union trying to have a serious argument about the proper way to interpret the rules of criminal procedure but without starting their legal notes with, "Now, see, there's Comrade Stalin, so, none of this should be read by anyone as if it described or would be properly applied to our actual legal reality because, duh, it doesn't and it wouldn't. But, like, imagine an alternative universe with a non-Stalin legal reality, and then one should say that the law is ... "
"Political philosophy" could mean a few things, but I'll simplify and put it this way:
Assume: "Doing A is beneficial if and only if B."
In that case, there is no inconsistency between saying, (1) "If B, Doing A would produce Nice Things" and then pointing at the absence of B when adding, (2) "And this is why we can't have Nice Things." There is also no inconsistency with adding, (3) "We should try to establish B, so that we could then do A, and have Nice Things."
One doesn't favor or contribute to the death of liberalism when one wishes it were otherwise but nevertheless accepts that it has unfortunately become counterproductive in our current cultural equilibrium to implement a particular liberal program. It is likewise not necessarily the case that "liberalism is already dead" just because it's sick enough to make doing this one thing unwise.
That being said, l would indeed argue that liberalism is very, *very* ill in the US, with condition and prognosis deteriorating steadily all the time.
That being the case, we are just well past the point where it makes any sense whatsoever to discuss whether this or that liberal rule should or shouldn't apply. Those questions must be tabled so long as we still have to figure out how to revive the formerly high-trust equilibrium and then sustain it against the forces that led to its deterioration.
Reasonable take, though Trump tried to create a state of exception to hold onto power. 14A section 3 is part of the regular legal order in responding to some such attempts. Its mechanism, and its application here, are unclear and therefore problematic. So while I broadly agree with the post, the essay grader may find some fault.
The Constitution designates Congress with the authority to validate or invalidate a presidential election. The argument of Treason against Trump is that he illegally appealed for Congress to exercise its legal authority.
This is a simple First Amendment case. Is it Sedition / Treasin to make a political argument? The political Left is willing to argue Yes, which ought to put a chill in the heart of anyone who loves Freedom and loathes Tyranny.
That ship sailed long ago for anyone not a standing politician. People are routinely jailed for pure speech while in other cases speech is curtailed because the Courts have determined via writ and precedent that certain speech is strictly liable with the only intent needed to be proven was it was said, not the intent behind the words themselves.
“I forget which governor, but I recall that one county ordered a lockdown but was over-ruled by the governor of the state.”
Our own state of Maryland had a similar situation. In the late Summer of 2020, many private schools (mostly religious ones), were gearing up to return to in-person schooling full time, when Montgomery County’s board of education issued a decree prohibiting in-person schooling. Montgomery County public schools were going to be remote. I don’t think it takes a cynic to figure out what prompted the board to do so.
Then Governor Hogan had to overturn the board of education, but it had a chilling and disorienting effect, and a lot of private schools ended up doing a hybrid for the first couple of months.
The pandemic emergency opened a hornet's nest of of bad governance. In such situations where government officials argue over who has the right to destroy human liberty the proper answer is None. But if the majority of people want to be captive than politicians are inclined to oblige.
I think the ballot proposal along with many other actions fit better in the (also German) idea of “militant democracy.” This concept dates back to the decade before World War II when theorists looking back thought “it would have been much better to suppress the National Socialists even if it meant profound limits on civil liberties.” You have to risk destroying the village to save it, basically. See https://en.wikipedia.org/wiki/Defensive_democracy. As always, beware false positives, the incentives for such errors are significant.
It's amusing how so many people use the word democracy as if there is shared understanding of details, but with a nevertheless idiosyncratically-tweaked definition to mean "what would be done in the complete absence of democracy and everything were run by a totalitarian dictator, that is, me." That is, instead of meaning "rule of the people even with results I don't like" True Scotsman Democracy apparently means "rule by the people only allowed when the results are the ones I do like."
Confucius was right about the rectification of names. There is no possibility of intellectually constructive discussion when everyone is applying their own version of Humpty Dumpty linguistics.
Thanks for these insights. Do we really know how dangerous a time these rogue state officials are creating when they unilaterally decide to abrogate authority based on an amendment to the U.S. constitution, not based on laws of their own state?
I think it’s understandable to be quagmired in a conflict between a state of non-conviction vs a political perspective about something that (did or didn’t) happen on the federal level.
Colorado and Maine have implied that Trump was guilty of something describe in the constitution against the federal interest but there was no ruling in the matter at the federal level. Time will tell. In my view, the debate would be more interesting if the ballot rejection were coming from Georgia after such time as its state supreme court might find him guilty of such behavior. At that point, things should get interesting.
This isn't a good application of Schmitt because neither the CO court nor the Maine SoS have the final say. They are also not couching their argument in the emergency/state of exception terms, but in terms of obedience to the ordinary textual meaning of existing constitutional law.
In Schmitt's terms within Political Theology, a "general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm." So in this 14th Amendment case, the officer and the CO Supreme Court were claiming to act within a preexisting judicial norm in the form of the ordinary textual meaning of § 3 the 14th Amendment (the bit about participating in insurrections or giving aid and comfort to enemies barring one from office). They were not claiming to act as Schmittian sovereigns, departing from legally defined norms in the pursuit of their own definition of public safety or the public interest.
The split nature of sovereignty under a liberal constitution was part of what Schmitt critiqued in Political Theology (PT). "If such an [emergency] action is not subject to controls, if it is not hampered in some way by checks and balances, as in the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety. All tendencies of modern constitutional development point toward eliminating the sovereign in this sense."
So straightforwardly applying this to our situation, the liberal constitutional order is working as intended, because the sovereignty football is always being snatched away by various Lucys before the would-be sovereign could kick it.
A State of Exception would be a hidden council of Tyrants declaring that the normal constitutional processes had to be suspended without reference to preexisting constitutional norms. As Schmitt writes in PT referring to an analysis of the post-WWI German Constitution, the division of emergency powers between parliament and the Reich president "[corresponded] to the development and practice of the liberal constitutional state, which [attempted] to repress the question of sovereignty by a division and mutual control of competences." However, unlike in our system, he points out that Art. 48 of the German constitution potentially provides unlimited power without check. Our system doesn't do that, so any would-be tyrant would not find an easy textual justification.
I think this is a fair point, but I think the 14th Amendment itself has the flaw that it doesn't describe what participating in an insurrection is in fact. The closest to a legal definition I can find is from the Supreme Court opinion on the Prize case, and even there it isn't super clear, other than Courts of Law not being able to operate being a signal. That obviously doesn't apply in this case, but it isn't entirely clear to me that there is anything that defines legally the difference between insurrection and general disorderly conduct. For instance, why are those who attacked police precincts in 2020 riots not called insurrectionists but the Jan 6 people are? It would seem that someone would have to be convicted in a court of law as participating in insurrection (however defined) for the 14th Amendment to kick in, because there does not seem to be another definition that is obviously factually agreed upon to work from. Otherwise whether or not someone engaged in insurrection depends merely on the say so or whim of the official applying the law.
All that to say, it isn't clear to me that someone can have the 14th Amendment applied against them without first being convicted of engaging in insurrection by some defining statute. Otherwise, invoking the 14th Amendment in absence of a generally agreed upon definition of insurrection is in and of itself an exercise in declaring a state of exception. The Secretary of State of Maine does not have the constitutional power to declare someone an insurrectionist, so without a court case to declare such there is no legal authority to make the decision that leads to applying the 14th. In other words, there is no legal authority to go from the default rule of "he can run for president and be on the ballot" to the exception of "we decide who can be on the ballot".
Keeping Section 5 of the 14th Amendment in mind, Congress does have, and did have in 1871, a definition of insurrection.
https://www.brookings.edu/wp-content/uploads/2020/12/ReferenceSheet_InsurrectionActAndRelatedAuthorities.pdf
That is a similar definition to the Prize case regarding Courts of Law, where at best an insurrection is defined as the courts or other justice apparatus not being able to function. Which is fine, although it is a very finnicky definition that doesn't seem to include Jan 6 or exclude the 2020 riots. Nor does it make clear what it means to participate in those insurrections means. At a glance, the President seems to get to decide what is, currently, an insurrection based on whether or not the normal execution of courts is going on, which makes it unclear as to whether a sitting president even can participate in insurrection. It is also worth noting that insurrection is lumped in with domestic violence and conspiracy in the middle of that statute, so the definition is again a little questionable.
So, again, the issue is that what counts as "insurrection" is not really defined clearly outside of preventing the courts from functioning, but rather seems to rely on a colloquial understanding of what insurrection is. By the definition of courts functioning, Jan 6 wasn't an insurrection, as the functions of a state (DC isn't one, anyway) were not impeded, and post facto signs that it was an insurrection such as the President making a proclamation to disperse, and that not being followed proceeded to send in the National Guard didn't happen.
The relevant section is here "Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1)so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2)opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution."
From : https://www.law.cornell.edu/uscode/text/10/252 and https://www.law.cornell.edu/uscode/text/10/253
So, again, if the courts are functioning and the people involved can be tried normally, it can't be an insurrection, and even if the courts aren't functioning it isn't clear who counts as participating in the insurrection. Arguably the capital guards who let the protestors inside would count as giving aid, or those in charge of security who didn't do more to stop it.
I think the best we can come away with is "If that is the definition, there absolutely was not an insurrection." If we want to say "Well, that is too narrow, we all know what insurrection means and that early statute assumes the meaning" that needs to be demonstrated, and trials held to determine whether a particular person counts as being a participant in the insurrection, and what that means. Both points are required for the 14th Amendment, that an insurrection happened and the specific person participated.
You could make a gonzo-originalism Bostock style argument that what "insurrection" meant at the drafting doesn't matter, and what really matters is the popular and accepted meaning of the term in 2024. That it wouldn't work today also exposes why Bostock was a mistake. In the Bostock type of analysis, the media and academia decide what it means because they have strong powers of persuasion to alter even such load-bearing terms as "for reason of sex" over time.
It'd be harder to win on a Bostock style argument today because, as another commenter has mentioned, there's a statute that does define it, and that should be what controls even notwithstanding a gonzo Bostock argument.
Forgive me, I went to law school. One of the things I saw there is how much judges "interpret" terms and precedents to get the outcome they want. Everyone says they are staying within constitutional norms but in reality, they may not be. In the words of Alice in Wonderland's Humpty Dumpty, "When I use a word, it means just what I choose it to mean — neither more nor less."
I can't resist nitpicking: That's from Through the Looking Glass, not Alice in Wonderland.
I stand corrected. Well, to nitpick, I'm actually sitting :)
In the 240 history of the United States how often has a state official unilaterally decreed a person unfit for election due solely on their opinion?
Colorado & Maine are exceptional actions. They are not following an existing norm but creating an argument and without Due Process acting on it. They are being tyrannical all while claiming to defeat tyrants.
This is the nature of despots. They argue the "other" is such a threat to civility that the "other" must be removed from civil society by any means possible.
To be fair, we have did it numerous times, we just generally do a better job fluffing the justification and lip service. Eugene Debs immediately jumps out and I'd bet on a deep dive one could find thousands of other instances especially once you got down to state or munipal elections.
my grandparents met on a Debs protest march, so I appreciate this comment!
Right, Schmitt defined the state of exception not as extraordinary or emergency circumstances but specifically those for which rules, procedures, grants of authority and controls limiting their use had not been provided for by pre-existing laws, and which would be declared and with power seized or self-authorized in a manner indifferent to established law.
There is the tricky situation of when the law has a general procedure for any kind of 'emergency' worded so vaguely that one cannot really tell the difference between law and the making of exceptions to the law, and such is alas the case in the US today.
A state of exception would be to suspend Habeus Corpus which is not unprecedented in the US. The whole notion that Schmitt was describing was to point out the flaws in liberal constitutionalism because in his words, liberal constitutionalism, like all legal forms, has its own flaws and blind spots and those blind spots will inevitably be exploited which reveals the true nature of what is behind said concepts of juridical form which is power. He recognized that these forms of law are basically extensions of religious articles of governance coded in secular language and the exception is effectively what would be considered a miracle in theology. Well who has the power of miracle or the suspension of the laws of nature? God. But in secular world, it's the sovereign and the sovereign is the one who can suspend what ppl would consider norms or the way things are. The structure is the norm or the rule but in his words the rule proves nothing, the exception proves everything since the exception reveals that the norm was simply a rule that was enforced until it wasn't by a power who exceeds said rule thus proving that the rule was arbitrary to begin with by the person or ppl who have actual power/sovereignty to exceed the rule.
Suspension of Habeas Corpus doesn't count as the Constitution specially provides for it and is explicit as regards the only circumstances in which it may be done. For example, during rebellion. Lincoln suspended it (in a limited manner) early in the Civil War, and SCOTUS ruled his action unconstitutional, but he just ignored the ruling. It's arguable that continuing to suspend in defiance of the ruling was Lincoln effectively declaring a state of exception.
No him ignoring the ruling and going about his own business demonstrated what legal theorists would like to point to as a violation but in practice a reflection of realpolitik aka sovereignty in reality. One can hold onto the notion of formal declarations but they mean nothing if not believed or followed in practice. The Soviet Union had a constitution and it was a formal document of tremendous influence haha. One's mind who insists on following rules and a soul tied to myths needs to believe in certain formal states because entertaining the possibility that its actual just a bunch of ppl with power over others under an obfuscation methodology combined with an audience steeped in denial, it makes one very uncomfortable
Obviously it wasn't a formal declaration, it's just the way of describing what Lincoln did using Schmitt's framework and terms, at least, from Chief Justice Taney's point of view.
As for the rest, you are making the same error the old-school "Legal Realists" and "Critical Theorists" made, which is to treat the question as Boolean and one solely of kind instead of degree.
In a way, sure, the way any government justifies its legitimacy and explains how power actually works is always kind of a sham, and a lot of people fall for it.
That this ever got treated like some subtle insight only uncoverable by modern academic super-geniuses would have made any astute observer of human affairs from any other time in history laugh out loud. The follow-up claim that, knowing this, it should now be possible for the first time in history to fashion a sham-free governing structure for society would have made them weep even louder.
On the other hand, while some degree of sham seems unavoidable, the mythos of power is not always completely a sham, and the level of sham turns out matters tremendously as regards the quality of governance.
The feedback interactions between stories, institutions, behaviors, attitudes, and rules is such that when sincerely believed in and pursued vigilantly as ideals by a critical mass of people in a society, then shams can sometimes bootstrap themselves into far more than mere cover-stories as odds with the underlying reality, and instead become the accurate description of how things actually work and the real underlying state of affairs.
It was once common to write about the collision of some newcomer with the cynicism typical in and adaptive to the low-trust society from whence he came, to hear about the formal description of how some high-trust Anglospheric institution worked, and then tug on his lower eyelid remarking, "My eye! What a ridiculous joke. Now, tell me, how does it *really* work, eh?"
And then it would be explained and shown to the newcomer that, actually, things really did in fact work that way, and this would completely blow the newcomer's mind as prior to that very moment he could not have imagined such a thing to be possible. And he is then exasperated by the fact that he simply cannot convince anybody in the old country about this, who all agree that this guy is telling fables and is probably up to something sneaky. This exact scenario played out in my own family, and I would not be surprised to learn something similar occurred literally millions of times.
If getting back to the widespread norm-following of that kind of high-trust society requires participation in the perpetuation of a bunch of those old small salutary, self-reifying shams, then, having seen the alternative, all I can say is sign me up. But apparently we'll have to run out of ruin in a nation before there's any chance of getting back to that situation.
Well said and yet the AI ran technocracy is coming and hopefully for once we can dispell with the shams. A long time ago Arnold spoke about legamorons and how arbitrarily enforcement is what allows them to exist, once we an AI with near perfect information, execution, and no discretion the government is going to have to finally for the first time in history pass well written and concise laws and actually follow them themselves for fear of the AI, i.e. no more everyone commiting multiple crimes a day because the law is just intentionally poorly written.
Probably not in my lifetime but I can hope in my grandchildrens.
Sometimes the winds of destiny aka the cycles of civilization have a say that no one wants to admit. Those who deny it fail to realize that seasons are cyclical and predictable, and so is the cycle of a human life. But somehow societies are different. Denial is the drug that keeps on giving
Our elites in government, media, academia, and elsewhere, frightened at the prospect of rising popular rejection of their incompetent and corrupt dominion, are trying to turn everything into a "crisis" that demands normal constraint of law, custom and even morality be discarded so as to allow perpetuation of their rule of grift.
They do this by exaggerating to absurd levels any and all possible dangers. They have exemplify H.L. Mencken's statement that "The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." Even better for these purposes are hobgoblins that are not entirely imaginary, but which offer risks that can be greatly exaggerated,
I'm trying to imagine a world in which Trump didn't get three appointees to the Supreme Court. Either because he lost in 2016, or because three people died earlier and Obama got to pick.
I could imagine a Supreme Court full of Sotomayors keeping Trump off the ballot. I don't think you need to imagine much to imagine what the other rulings would be like.
Trump is a problem. His existence makes people lose their mind. However I see no Constitutional argument for disqualifying a person from being elected because his or her existence leads certain people to become irrational.
The irrationality of an official decree to keep Trump off a state ballot is obvious. If it were obvious Trump was unqualified to be elected than a vast majority of voters would concur and Trump would not win that state's electoral votes. A ban on Trump is a reflection of the delusion of the official. If anything warrants an emergency response it is in protecting society from such deranged government officials.
If the SC rules in favor of Colorado and Maine and simply states whatever excuse it chooses to make and despite all that you still don't agree with it, you'll still accept the results because rulings will simply be rationalized underneath an underlying acceptance that power is what makes decisions and rules are simply followed to avoid acknowledging this stark reality
You weaken your case by falsely claiming that Trump was disqualified because his “existence leads certain people to become irrational.” Trump was disqualified because rational people made a rational interpretation of the Constitution’s insurrection clause in the light of Trump’s actions before, on, and after J6. Their interpretation may well be wrong, as the fact that SCOTUS has agreed to hear the case suggests, but it is not insane.
Disagreeing with Trump or with your interpretation of the Constitution is hardly proof of either irrationality or derangement.
I understand the point you are making here, Richard, but I have asked the various supporters of this effort to remove Trump what they would think of a similar effort to remove Biden or any Democrat. I have also asked them, when they point me to the Colorado court's decision for the evidence of the legality of the action, what they are going say when SCOTUS over-rules these decisions and explains why- are they going to acknowledge that the Colorado court and the Maine SoS got it wrong afterall. I never get an answer to those two questions. I suspect that I don't get an answer because they really don't believe these inferior branches in state government have the right to make these decisions by matter of law, but because they think it is the right decision, they are going to support it full-throated regardless. I consider this a kind of madness at best, dishonesty at worst.
So Maine and Colorado are implementing federal law - but Abbott in Texas is being sued because he is trying, if extremely belatedly, to implement federal law.
No more dishonest than those who thought that the SCOTUS got Roe v Wade wrong and worked to get a different SCOTUS to overturn it.
1972 Roe v Wade was directly against the 10th Amendment
https://constitution.congress.gov/constitution/amendment-10/
Health and education and marriage laws should be at the state level.
Letting tyrannical judges rationalize grabbing federal power thru penumbras or other meaning twisting fake logic was and is wrong. Every state should be making their own laws, which might be… what is that word? Diverse.
OK, should they be making their own laws about election eligibility? (FWIW, I have no dog in this race. Curious what you say, though.)
I expect that SCOTUS will consider two preliminary issues: (1) Did J6 constitute an “insurrection”? (2) Is the President an “officer”? If the answer to either of these questions is no, then Trump stays on the ballots. If the answer to both is yes, then the Court will have to decide a third question: Was Trump part of the insurrection?
Perhaps a fourth question that the Court could decide is how much control do the states have over federal elections.
One problem that norm breakers like Obama, Trump, and Biden cause is how to clean up the messes that they create.
Possibly, equally I think they might take the easy way out and go the Michigan route and simply state "The insurrection clause only prevents holding office, it does not does prevent running for office. As such no state may bar someone from running for office period hard stop. Should said person be elected, normal succesion rules would be followed, so in this case, the president would be sworn, immediately be ineligible, and the VP mere seconds later would immediately assume power and be sworn in as president"
What is the "Due Process" for judging a person guilty of Rebellion / Sedition / Treason? What of Trump's actions constitute rebellion against the government? Is opinion sufficient proof? Or is actual legal determination needed?
Observe that Biden refuses to enforce the border and is literally enabling an invasion. Do you agree that a state official could unilaterally decide these actions of Biden constitute a rebellion and this justifies Biden being removed from the ballot?
What is the future of the United States if individual officials of each state can decree on their own regard who can and cannot be on the ballot?
The fact that this is all unfolding with an actual invasion going on in the background certainly doesn't incline one toward a generous interpretation of the actions of the Maine and Colorado Democrats.
It should be the other way around. The circus on Jan. 6th should be the background. The border should be the story.
Which just goes to show the who holds the real power:
Jan. 6 - round the clock coverage by MSM
The border - Bill Melugin. Full stop.
Ok, those are reasonable arguments that might sway someone who is on the fence. I don’t think that your original claims would have convinced anyone not already on your side. “You’re wrong because you’re insane,” is not a great way to win a debate.
I am relatively well read and reasonably intelligent and I want to see a rematch between Mr. Trump and President Biden.
If President Biden wins by 6 million votes, I will have my proof there was no shenanigans in 2020.
If not.......well?
It is a simple negative test.
Both Mr. Trump and President Biden are known quantities with most people having a firm, formed opinion of each man's character and abilities and are unlikely to switch and not vote for their candidate in 2020.
If President Biden beats Mr. Trump by 6 million votes then it proves there were no shenanigans in 2020.
If Mr Trumps wins the popular vote then it strongly suggest there were irregularities in 2020.
I have to agree with forumposter. I don't see how it proves anything.
If you thought it was stolen in 2020, why would you not think it will be stolen in 2024? Have there been substantial changes to the electoral process that would prevent this?
I don’t think that the election was stolen in 2020. Trump hired a team to investigate the election and they found no evidence of fraud large enough to affect the outcome.
I believe that Trump lost and lost largely through his own action and inaction. First and foremost, he handled the two big crises of his presidency - COVID and the BLM riots - badly. He told his supporters not to use mail-in voting, thereby putting himself at a disadvantage. He refused to prepare for the first debate. During the debate, he refused to keep his mouth shut while Biden was self-destructing.
Yes, a number of states - including states that Trump won - violated their own laws in the way they ignored procedures when altering the election rules. However, Trump failed to protest the changes prior to the election. Had he been competent, or had a competent legal team, he would have filed lawsuits well before the election. Instead he waited until after the election to protest, and then only in the states he lost. Condemning illegal rule changes only when you lose and ignoring them when you win is hardly a principled stance.
Yes, Joe Biden lied, and got fifty former officials to lie, about Hunter’s laptop, but Hunter’s foibles weren’t a key issue. Even now after all the revelations so far, the worst that has been revealed is that Joe might have taken money from foreign interests when he was not in office. Sleazy, but not illegal. That’s not to say that we won’t find out more, but right now, we don’t know that he broke any laws.
The bottom line is that Trump lost the election to a very weak candidate because of his own incompetence. Neither he nor his supporters are willing to admit that, so they’ve been casting around for another, any other, explanation, including North Korean frogmen wading ashore in Maine to stuff ballot boxes and claims that the ballots were counted in India.
I was asking the other guy. I'm trying to understand the mindset that if you thought it was stolen in 2020 that wouldn't happen again in 2024. If you don't think it was stolen that wouldn't really count.
Let's say you felt that election procedures in 2020 were "not on the up and up", Trump not challenging them doesn't really matter for this question. Which procedures and have they been changed?
Like, if you thought mail-in or absentee ballot procedure was wrong, in what states has this been changed since 2020? If you think drop boxes are wrong, in what states has this been changed since 2020?
I ask from genuine ignorance. I do not follow all this. I vaguely think that election procedures seem lax, and my preferred method of election would be paper ballots in person on Election Day requiring a government issued photo ID, with procedures in place to announce the results that night if possible and if not the next day.
Have any state election procedures become more like that compared to 2020? I don't know. You would think this would be a major issue and all over the news, but I haven't heard a thing.
Unless someone can give me a list of what's changed, I don't really understand why someone who thought it was stolen in 2020 would think it would not be stolen in 2024 (using as broad an understanding of stolen to include "legal in 2020 but probably shouldn't be legal".
"Neither he nor his supporters are willing to admit that"
Bro, did you see 2016? I'm fairly certain we are fighting a proxy war with Russia because people think Putin hacked the ballot machines.
They have a framing for all that! (I'm a little loopy from just now finishing Ben Lerner's long short story-ish thing "The Hofmann Wobble").
They are not changing procedures to change outcomes - they are "rocking the vote".
A phrase so silly there is no way to counter it ("Unrock the vote? Voting for The Rock?").
I think this victory is permanent.
Richard Fulmer, I thought that was an interesting, thoughtful comment but the Korea/India crack at the end made me discount it.
I didn’t make those up. Trump supporters really made those claims.
This isn’t entertainment. This isn’t a production of Hamlet in which, at the end, the actors who have been slaughtered in the course of the play stand up and take a bow. This is real life and the lives of a lot of real people will be affected - and possibly ended - as the result of who is elected in November.
Unfortunately, the election will likely be won by one of two men who are uniquely unfit for office. One who has pledged to dedicating his presidency to revenge, and the other who is visibly failing, both mentally and physically, every day.
We’re facing huge challenges at home and abroad. We need real leadership - leadership that we are very unlikely to get from either of the probable candidates.
I would certainly prefer a Trump vs Biden rematch to Biden being declared president by default.
Let's try to remember that Biden was THE BEST CANDIDATE that the DEMs put up in 2020. This isn't just a popularity thing (Biden has anti-charisma). The rest of the docket were a bunch of socialist and woke scolds that would have been a lot worse. If anything most of the disappointment with Biden is that he's a spineless senile old man letting those people run the show anyway.
Trump was the only non-RINO in 2016. The rest couldn't even admit the Iraq War was a mistake in the primary. All of them wanted to run Bush/Romney-ism over again.
I could maybe argue for this or that other candidate. DeSantis would have been my favorite, but he's also run a terrible campaign and doesn't seem to have any ideas what to do with the presidency. Overall I'd take Trump over the GOP establishment candidates in a second.
If DeSantis has won any primaries by the time of the CA primary, I’ll send my absentee Rep primary voting for him. Or the wild Ramaswamy (8 year term limits for bureaucrats). But I’m 90% sure Trump’s Rep popularity with the working class voters will have him dominate.
I think it’s some 60-80% chance Biden won’t be on Nov ballot.
Or should I say Dementia Hitler won’t be?
From the Essay Grader
Kissinger's Vietnam: Tragedy in Four Acts
https://www.washingtonpost.com/opinions/1985/04/09/vietnam-tragedy-four-acts/
Output:
Articulating Opinions and Opposing Viewpoints: The essay does a thorough job of articulating the author's perspective on the Vietnam War, particularly in terms of U.S. foreign policy decisions and their consequences. However, it lacks a clear articulation of the opposing viewpoint, especially regarding critiques of U.S. involvement in Vietnam and alternative interpretations of the war's legacy. The essay could benefit from a more balanced presentation of different historical perspectives on this complex issue.
Respect and Avoidance of Attacks: The essay maintains a respectful tone throughout and avoids name-calling or attacking motives. It demonstrates an understanding of the complexities of war and the challenges faced by leaders, though it could benefit from acknowledging the moral and ethical criticisms more explicitly.
Rebuttal of Opposing Arguments: The essay does not effectively address or rebut the strongest arguments of the opposing side. While it provides a detailed analysis from the author's point of view, it misses opportunities to engage directly with counterarguments about the war's justification, conduct, and consequences. A stronger essay would include a more nuanced discussion of these points, possibly acknowledging areas of valid criticism.
Overall, the essay presents a detailed and thoughtful analysis from one perspective but falls short in fully engaging with and respecting opposing viewpoints. It would benefit from a more balanced approach that includes a clearer presentation and rebuttal of the strongest counterarguments. This would enhance its intellectual humility and openness to diverse perspectives.
Grade: B-
The essay is strong in its detailed historical analysis and respectful tone but needs improvement in balancing perspectives and engaging with opposing arguments.
"Exceptions" are a continuum. Soap box, ballot box, jury box, cartridge box.
Jefferson himself said "Refresh the Tree of Liberty..."
Only wannabe totalitarian fears people's voice and demands "exception!"
It seems quite possible that sovereignty should reside with the States. But that got tested once before...
The argument is that Trump was inciting insurrection, which is violence to overthrow the govt. nobody was doing insurrection, and nobody has been charged with insurrection.
No matter how many times The NY Times lies and calls the Stop The Steal protest an insurrection, it wasn’t. Ashli Babbitt’s family just filed. 30 mln $ wrongful death lawsuit.
There are only two legal ways to bar Trump from the Presidency- the House can impeach him again, the Senate convict and then set the punishment of barring him from future office- this could have been done in January of 2021- it wasn't. Congress could do this again tomorrow if it chose, and while I would disagree with the action and vote accordingly, I would admit that this was an entirely legal method of barring him from the ballot- a decision I am sure SCOTUS would not attempt to overturn. The other legal way is to allow Trump to run and then have Congress, on January 6th of 2025, refuse to accept his electoral slate throwing the election into the House and choosing, in the end, someone else as President- I would also view that as entirely Constitutional, though I would again dislike the decision.
One of my conditional predictions for the coming year is that if Trump does win the election in November, the Democrats are going to do exactly the same thing Trump tried to do on January 6th 2021- get the VP to refuse to accept the electoral slate, only with a mob of armed Democrat protestors camped out in the Capitol building to make sure it is done this time.
But now there is a new law requiring the VP to submit the electoral slate. Passed, ?, Oct. 8.
Pence might not have been acting illegally, but Kamala Harris would certainly be. Tho that law could, of course, be declared unconstitutional by the SC if ever tested.
Congress is sitting right there and can throw out any rule it likes in that setting- no need to even have a president sign anything. The idea that Pence could act in that way was always silly- Congress would have simply overruled him that day and Biden still becomes the President. The legislation passed, such as all of the legislation governing elector counting, are almost certainly constitutionally invalid since it is one Congress seeking to bind another.
I promise you that if Trump wins, the Democrats will attempt to do exactly this- get Trump's electoral slate thrown out on January 6th 2025 and hope to win the Presidency in the House. The difference from 2021 is that the media will support this effort shamelessly and the rioters occupying the Capitol will be Democrats this time. Yes, Trump opened a door in 2021 that might well be used against him by more cunning politicians. However, I think this a scenario that is extremely unlikely- with mail-in-voting, the Democrats can't lose next November.
It’s not just the Left either. Here Jaffa in “Crisis of the House Divided” offers advice from Aristotle on true statesmanship:
“If . . . there be some one person, or more than one, although not enough to make up the full complement of a state, whose virtue is so pre-eminent that the virtues or political capacity of all the rest admit of no comparison with his or theirs, he or they can be no longer regarded as part of a state; for justice will not be done to the superior, if he is reckoned only as the equal of those who are so far inferior to him in virtue and in political capacity. Such a one may truly be deemed a god among men. Hence we see that legislation is necessarily concerned only with those who are equal in birth and capacity; and that for men of pre-eminent virtue there is no law—they are themselves a law.”
The law is for ordinary people, not for *you*, o wise leader.
There are circumstances in which that's exactly how it should be.
Specifically: You can't have Rule of Law if you don't already have Rule of Law.
By "Rule of Law" I mean a system that works in accordance with Lon Fuller's and Hayek's descriptive principles. I don't mean perfectly, but it's easy to imagine an 'index' or 'score' for such a thing. The score in the US used to be quite high and a justified source of national pride, but it didn't last, got really terrible, and has been continuously deteriorating for a long time.
It is really foolish to favor or insist on a particular application of the Rule of Law which relies on a system that can only be sustained by a widespread commitment of elites from all factions to scrupulous and good-faith honoring of norms, when the species of officials so committed has been endangered for decades and is nearing the verge of extinction.
And so when your Rule of Law index falls below a failing grade, then there's a solid argument that many laws should indeed *not* apply to officials.
There were a number of countries - for example in Latin America - which explicitly provided for this exact form of lifetime legal immunity for top elected leaders or certain senior-level public officials, because of very bad experiences with the common failure mode resulting from their lack of Rule of Law.
The failure mode of making public officials subject to ordinary law has two related elements.
First, that it makes those officials subject to malicious prosecution, selective application of rules only to ones enemies, bad faith abuse of discretion, results-oriented interpretation, and lawfare harassment when their political opponents are able to obtain control of or otherwise leverage those legal systems to produce such outcomes, with very little risk to themselves but potentially personally-ruinous risk to an innocent accused in the manner of "the process is the punishment".
The second part is what you might call Silverglate's "Three Felonies a Day" plus Beria's, "Show me the man and I'll show you the crime" on steroids, because the laws purporting to regulate political and public activity are extremely numerous and extremely vague and often - because the particular activity being regulated provides no good bright lines or limiting principles- operate as no more than a smokescreen enabling a deciding official to hand-wave away corrupt favoritism and double-standards, and to get away with treating the same behaviors differently depending on who did them.
In particular, every system claims it is justified in going after corruption on the one hand and threats on the other. People instinctively think this makes sense, but it often doesn't. That's because in reality the ways you can influence another person to get them to use power to do what you want fall along a whole vast spectrum of dangled carrots and menacing sticks, and any attempt to draw any line on what is allowed or not will be arbitrary, gamed, and impossible to capture in mere text without opening the door to all kinds of political mischief camouflaged as 'interpretation'.
Of course the trade-off is that lifetime immunity allows politicians to get away with all kinds of corrupt behaviors and, knowing this, most of them are not the sort of people who have sufficient character to resist those kinds of temptations. On the other hand, in a system where one faction dominates in terms of relative power to engage in lawfare, you end up with a system that *pretends* to be one of Rule of Law, but which, in reality and in effect, is guaranteed lawfare harassment for members of one faction, and lifetime immunity for members of the other.
It is really kind of depressing to watch the obscenity of American lawyers who have intimate familiarity with exactly how far the Rule of Law has collapsed in the US to somehow compose their arguments as if that wasn't true and to try to seriously argue with each other over what might make someone Constitutionally disqualifiable, but without starting every post and counter-post with, "Now, none of this matters because we don't, but, assuming for the sake of argument that we did had good Rule of Law in such matters in this country, then ... "
You can imagine the equally obscene - though much more excusable - case of some legal scholars in the early Soviet Union trying to have a serious argument about the proper way to interpret the rules of criminal procedure but without starting their legal notes with, "Now, see, there's Comrade Stalin, so, none of this should be read by anyone as if it described or would be properly applied to our actual legal reality because, duh, it doesn't and it wouldn't. But, like, imagine an alternative universe with a non-Stalin legal reality, and then one should say that the law is ... "
This political philosophy is the death of liberalism. Or is your argument that liberalism is already dead in the US?
"Political philosophy" could mean a few things, but I'll simplify and put it this way:
Assume: "Doing A is beneficial if and only if B."
In that case, there is no inconsistency between saying, (1) "If B, Doing A would produce Nice Things" and then pointing at the absence of B when adding, (2) "And this is why we can't have Nice Things." There is also no inconsistency with adding, (3) "We should try to establish B, so that we could then do A, and have Nice Things."
One doesn't favor or contribute to the death of liberalism when one wishes it were otherwise but nevertheless accepts that it has unfortunately become counterproductive in our current cultural equilibrium to implement a particular liberal program. It is likewise not necessarily the case that "liberalism is already dead" just because it's sick enough to make doing this one thing unwise.
That being said, l would indeed argue that liberalism is very, *very* ill in the US, with condition and prognosis deteriorating steadily all the time.
That being the case, we are just well past the point where it makes any sense whatsoever to discuss whether this or that liberal rule should or shouldn't apply. Those questions must be tabled so long as we still have to figure out how to revive the formerly high-trust equilibrium and then sustain it against the forces that led to its deterioration.
Reasonable take, though Trump tried to create a state of exception to hold onto power. 14A section 3 is part of the regular legal order in responding to some such attempts. Its mechanism, and its application here, are unclear and therefore problematic. So while I broadly agree with the post, the essay grader may find some fault.
The Constitution designates Congress with the authority to validate or invalidate a presidential election. The argument of Treason against Trump is that he illegally appealed for Congress to exercise its legal authority.
This is a simple First Amendment case. Is it Sedition / Treasin to make a political argument? The political Left is willing to argue Yes, which ought to put a chill in the heart of anyone who loves Freedom and loathes Tyranny.
That ship sailed long ago for anyone not a standing politician. People are routinely jailed for pure speech while in other cases speech is curtailed because the Courts have determined via writ and precedent that certain speech is strictly liable with the only intent needed to be proven was it was said, not the intent behind the words themselves.
“I forget which governor, but I recall that one county ordered a lockdown but was over-ruled by the governor of the state.”
Our own state of Maryland had a similar situation. In the late Summer of 2020, many private schools (mostly religious ones), were gearing up to return to in-person schooling full time, when Montgomery County’s board of education issued a decree prohibiting in-person schooling. Montgomery County public schools were going to be remote. I don’t think it takes a cynic to figure out what prompted the board to do so.
Then Governor Hogan had to overturn the board of education, but it had a chilling and disorienting effect, and a lot of private schools ended up doing a hybrid for the first couple of months.
The pandemic emergency opened a hornet's nest of of bad governance. In such situations where government officials argue over who has the right to destroy human liberty the proper answer is None. But if the majority of people want to be captive than politicians are inclined to oblige.
I think the ballot proposal along with many other actions fit better in the (also German) idea of “militant democracy.” This concept dates back to the decade before World War II when theorists looking back thought “it would have been much better to suppress the National Socialists even if it meant profound limits on civil liberties.” You have to risk destroying the village to save it, basically. See https://en.wikipedia.org/wiki/Defensive_democracy. As always, beware false positives, the incentives for such errors are significant.
It's amusing how so many people use the word democracy as if there is shared understanding of details, but with a nevertheless idiosyncratically-tweaked definition to mean "what would be done in the complete absence of democracy and everything were run by a totalitarian dictator, that is, me." That is, instead of meaning "rule of the people even with results I don't like" True Scotsman Democracy apparently means "rule by the people only allowed when the results are the ones I do like."
Confucius was right about the rectification of names. There is no possibility of intellectually constructive discussion when everyone is applying their own version of Humpty Dumpty linguistics.
sovereign is she who can convince the general public not to ignore her dictats
even the most absolute dictators ever depended on the majority accepting their orders
it always boils down to the consent of the governed
Thanks for these insights. Do we really know how dangerous a time these rogue state officials are creating when they unilaterally decide to abrogate authority based on an amendment to the U.S. constitution, not based on laws of their own state?
I think it’s understandable to be quagmired in a conflict between a state of non-conviction vs a political perspective about something that (did or didn’t) happen on the federal level.
Colorado and Maine have implied that Trump was guilty of something describe in the constitution against the federal interest but there was no ruling in the matter at the federal level. Time will tell. In my view, the debate would be more interesting if the ballot rejection were coming from Georgia after such time as its state supreme court might find him guilty of such behavior. At that point, things should get interesting.