Let’s not pussy foot around. Colorado was acting exactly in accordance with the provisions of the Constitution in determining that Trump is disqualified from the presidency. What terrifies everyone, including the liberals on the Court, is empowering the States to abuse that power, which is exactly what many red states threatened to do.
You can call it statesmanship. But what really happened is that the Court was cowered into emasculating the insurrection clause by the authoritarian right.
Frankly, I have no idea who you are or how I ended up subscribed to your substack but this is the best and most important piece I've read on Trump v. Anderson.
'Statesmanship' may not be the most apt framing of this decision.
Why is it, Adam, that the only 'practical consequences' evidently of concern to you and so many other commenters are ramifications of disqualification of a candidate pursuant to the constitution, and never the candidacy of one who grossly violated his oath in attempting to overthrow our constitutional order?
I'm prepared to accept SCOTUS' ruling--which appears dangerously close to nullifying Section 3--regardless of whether I agree with it, because I support this constitutional order, and Trump supporters ought to be equally prepared to accept a SCOTUS ruling that Trump is ineligible.
And, in a related vein, Adam, I would suggest that you seek to avoid bolstering your argument by casting aspersions on unnamed "progressives" and "supporters of the Colorado Supreme Court’s decision" whom you accuse of inconsistency in their thoughts. If there's a specific meaningful example you have in mind, cite to it. There will always be someone out there who thinks or says something dumb or hypocritical, but that doesn't mean it merits the attention of the rest of us. You cheapen your commentary by resort to this approach.
> If New Yorkers want to get guns off the streets, who cares whether Sir John Knight was acquitted of violating the Statute of Northampton in friggin’ 1686? Likewise, if the America of 2024 is best off permitting the election to proceed in an orderly fashion, shouldn’t we be able to just do that?
Doesn't this effectively turn judges into legislators? The theory is that legislators make laws, and judges just clear up any edge cases in existing laws. If judges are allowed to overturn old laws, that makes them strictly more powerful than legislators, who have to go through a more involved process to get laws changed.
100% correct. It's obvious that SCOTUS couldn't issue a decision that disenfranchised 75 million voters on the only vote they care about (President), and also obvious that SCOTUS couldn't allow inconsistent standards for disenfranchising voters in different states for the presidential election.
So they came up with this. It's fine. It does the job. And "getting the Constitution right" is not the singular value in constitutional adjudication. It never has been. (E.g., all stare decisis arguments are about the fact that it's better to have coherent rules than to be absolutely "right".)
I don't have any trouble with states being able to decide disqualification for state offices, or even for federal offices (like representative and Senators) that impact only the voters in that state for a particular office that is only applicable to that state. I do have a problem with allowing different states to come to different conclusions about an over-arching position--which is pretty much the presidency. How to fit that into the 14th Amendment?
I have no clue, of course. The problem is in the Amendment itself and its historical background. I doubt that the drafters ever contemplated a president who was an insurrectionist while in office. The only way to make the distinction is, ironically, the very weak argument that the word "office" doesn't mean President, which clearly makes no grammatical sense given all the other places that role is described as an "office."
The drafters had a clear target in mind--those who had actually seceded and fought. One can't blame them for not foreseeing an acting president himself trying to undo an election he just lost.
The difficulty with allowing states to decide for themselves on disqualification of a presidential candidate is chaos, but legal chaos, not the simple fear of Civil War 2.0. The key problem is what "insurrection" means in the absence of Civil War 1.0--that could be wildly different, leaving the country with no way to have an election that everyone COULD agree was "fair." I suspect that this is why the concurring liberal justices concurred instead of dissented. Some states could find that BIDEN committed insurrection by TAKING office despite the "Steal." They would be wrong--but the GOP is certainly in the business of pursuing what "impeachable" means. Can we have a situation where a state could bar a candidate without evidence? What would happen if "evidence" becomes so loosey-goosey as to allow wildly different interpretations of what IT means?
Basically, unfortunate drafting results in impossible interpretation no matter which way you go. The drafters simply didn't consider the difference between state-wide offices and the nation-wide office of president.
I am with the concurrence that the court had no business telling Congress what KIND of law they had to pass. I hope when Congress gets around to it, they will pass a law that MAKES the state/nation-wide distinction clear. Right now, I don't see how the 14th Amendment can rationally be applied to nation-wide office.
Yeah, idk. The opinion was hastily crafted and edited, and released unpolished before Super Tuesday. That state courts can't disqualify federal candidates without express delegation but can disqualify state candiates sounds about right to me: Do we want Texas or Florida disqualifying Biden (yes, that would happen)? Or worse: Do we want Alabama to decide that the sitting Senator from California is disqualified and refuse to follow laws Future Senator Shiff votes on? Any other decision by the Supreme Court would be the 16th Amendment controversy on steroids.
States run elections, but cant impose additional federal qualifications. Disqualification standards for Federal elections need to be uniform and objective (including the standard of evidence for a crime like insurrection). The Constitution imposes uniform standards. That's not "statesmanship," thats common sense. Is that explicitly written in the Constitution? Probably not to the degree of precision that satisfies the legal nerds who get paid by the word to obfuscate, but who cares. The whole point of a federal constitution is uniform federal standards. Some things are just obvious and dont need to be explicit.
Legal nerds can dress it up in whatever legal jargon and gobbledygook is the flavor of the day.I am sure many cv's were padded by the SSRN papers generated by this case (unironically, the SC cited none lol). The Supreme Court was never going to disqualify the candidate of choice of 75 million people on legal pencil shavings.
I personally wanted to see Trump defeated the old fashioned way, at the ballot box, in the primary, through the ancient alchemy of persuasion, a lost art in the halls of academia. Unfortunately, Democrats lawfare only enhanced and galvanized his support.
Let’s not pussy foot around. Colorado was acting exactly in accordance with the provisions of the Constitution in determining that Trump is disqualified from the presidency. What terrifies everyone, including the liberals on the Court, is empowering the States to abuse that power, which is exactly what many red states threatened to do.
You can call it statesmanship. But what really happened is that the Court was cowered into emasculating the insurrection clause by the authoritarian right.
Frankly, I have no idea who you are or how I ended up subscribed to your substack but this is the best and most important piece I've read on Trump v. Anderson.
'Statesmanship' may not be the most apt framing of this decision.
Why is it, Adam, that the only 'practical consequences' evidently of concern to you and so many other commenters are ramifications of disqualification of a candidate pursuant to the constitution, and never the candidacy of one who grossly violated his oath in attempting to overthrow our constitutional order?
I'm prepared to accept SCOTUS' ruling--which appears dangerously close to nullifying Section 3--regardless of whether I agree with it, because I support this constitutional order, and Trump supporters ought to be equally prepared to accept a SCOTUS ruling that Trump is ineligible.
Another take on statesmanship here: https://stevevladeck.substack.com/p/70-the-three-biggest-problems-with?utm_campaign=email-half-post&r=83rl2&utm_source=substack&utm_medium=email
And, in a related vein, Adam, I would suggest that you seek to avoid bolstering your argument by casting aspersions on unnamed "progressives" and "supporters of the Colorado Supreme Court’s decision" whom you accuse of inconsistency in their thoughts. If there's a specific meaningful example you have in mind, cite to it. There will always be someone out there who thinks or says something dumb or hypocritical, but that doesn't mean it merits the attention of the rest of us. You cheapen your commentary by resort to this approach.
> If New Yorkers want to get guns off the streets, who cares whether Sir John Knight was acquitted of violating the Statute of Northampton in friggin’ 1686? Likewise, if the America of 2024 is best off permitting the election to proceed in an orderly fashion, shouldn’t we be able to just do that?
Doesn't this effectively turn judges into legislators? The theory is that legislators make laws, and judges just clear up any edge cases in existing laws. If judges are allowed to overturn old laws, that makes them strictly more powerful than legislators, who have to go through a more involved process to get laws changed.
100% correct. It's obvious that SCOTUS couldn't issue a decision that disenfranchised 75 million voters on the only vote they care about (President), and also obvious that SCOTUS couldn't allow inconsistent standards for disenfranchising voters in different states for the presidential election.
So they came up with this. It's fine. It does the job. And "getting the Constitution right" is not the singular value in constitutional adjudication. It never has been. (E.g., all stare decisis arguments are about the fact that it's better to have coherent rules than to be absolutely "right".)
I don't have any trouble with states being able to decide disqualification for state offices, or even for federal offices (like representative and Senators) that impact only the voters in that state for a particular office that is only applicable to that state. I do have a problem with allowing different states to come to different conclusions about an over-arching position--which is pretty much the presidency. How to fit that into the 14th Amendment?
I have no clue, of course. The problem is in the Amendment itself and its historical background. I doubt that the drafters ever contemplated a president who was an insurrectionist while in office. The only way to make the distinction is, ironically, the very weak argument that the word "office" doesn't mean President, which clearly makes no grammatical sense given all the other places that role is described as an "office."
The drafters had a clear target in mind--those who had actually seceded and fought. One can't blame them for not foreseeing an acting president himself trying to undo an election he just lost.
The difficulty with allowing states to decide for themselves on disqualification of a presidential candidate is chaos, but legal chaos, not the simple fear of Civil War 2.0. The key problem is what "insurrection" means in the absence of Civil War 1.0--that could be wildly different, leaving the country with no way to have an election that everyone COULD agree was "fair." I suspect that this is why the concurring liberal justices concurred instead of dissented. Some states could find that BIDEN committed insurrection by TAKING office despite the "Steal." They would be wrong--but the GOP is certainly in the business of pursuing what "impeachable" means. Can we have a situation where a state could bar a candidate without evidence? What would happen if "evidence" becomes so loosey-goosey as to allow wildly different interpretations of what IT means?
Basically, unfortunate drafting results in impossible interpretation no matter which way you go. The drafters simply didn't consider the difference between state-wide offices and the nation-wide office of president.
I am with the concurrence that the court had no business telling Congress what KIND of law they had to pass. I hope when Congress gets around to it, they will pass a law that MAKES the state/nation-wide distinction clear. Right now, I don't see how the 14th Amendment can rationally be applied to nation-wide office.
Yeah, idk. The opinion was hastily crafted and edited, and released unpolished before Super Tuesday. That state courts can't disqualify federal candidates without express delegation but can disqualify state candiates sounds about right to me: Do we want Texas or Florida disqualifying Biden (yes, that would happen)? Or worse: Do we want Alabama to decide that the sitting Senator from California is disqualified and refuse to follow laws Future Senator Shiff votes on? Any other decision by the Supreme Court would be the 16th Amendment controversy on steroids.
States run elections, but cant impose additional federal qualifications. Disqualification standards for Federal elections need to be uniform and objective (including the standard of evidence for a crime like insurrection). The Constitution imposes uniform standards. That's not "statesmanship," thats common sense. Is that explicitly written in the Constitution? Probably not to the degree of precision that satisfies the legal nerds who get paid by the word to obfuscate, but who cares. The whole point of a federal constitution is uniform federal standards. Some things are just obvious and dont need to be explicit.
Legal nerds can dress it up in whatever legal jargon and gobbledygook is the flavor of the day.I am sure many cv's were padded by the SSRN papers generated by this case (unironically, the SC cited none lol). The Supreme Court was never going to disqualify the candidate of choice of 75 million people on legal pencil shavings.
I personally wanted to see Trump defeated the old fashioned way, at the ballot box, in the primary, through the ancient alchemy of persuasion, a lost art in the halls of academia. Unfortunately, Democrats lawfare only enhanced and galvanized his support.