"This guy is delusional."
An attorney sent me a link to the article below with that sole comment. The article argued that the Supreme Court should affirm the Colorado decision.
The article said that by the standards of "originalism" and "textualism" the Supreme Court should affirm the Colorado decision -- but it might not.
Trump and his allies assume that his appointees will vote in whatever way is best for the former president. They argue that, for democracy’s sake, the court shouldn’t deny voters the chance to choose the frontrunner for the Republican presidential nomination.
That is the familiar argument: America should ignore the Constitution in order to protect the supposed real purpose of the Constitution, democratic choice. Critics call out the presumed hypocrisy of Democrats who claim to want to protect democracy from Trump while they try to stop a democratic majority from voting for him if they so choose.
There is a problem with that argument. This is a republic. The Constitution was designed to protect itself by confounding democracy. It is full of prohibitions on majority rule, including on the issue of who is eligible to be president. Barack Obama was the most popular politician in America in 2016 -- far more popular than either Hillary Clinton or Donald Trump. But the Constitution blocked the popular will. There was a reason for that provision. After the long presidency of FDR, the public worried about the risk to our democracy of open-ended re-elections of a popular president.
A president must be aged 35. Age requirements eliminated a risk observed in Europe of father-son political dynasties, a timely concern. William Pitt the Younger took office as Prime Minister at age 24 in 1787, the year the Constitution was drafted in Philadelphia.
The native-born requirement for a president eliminated a democratic choice for the purpose of protecting us from famous or popular Europeans riding that popularity into America government.
Requirements for lifetime tenure for federal judges is profoundly un-democratic; the idea was to protect our the independence of the judiciary.
The Bill of Rights is all about stopping popular majorities to protect rights and liberties. We could not have a durable democracy without freedom of speech, of religious expression, a free press, and the right to assemble. Democratic majorities were forbidden to end the right of militias to bear arms, or to require citizens to quarter soldiers in homes, or to impose cruel and unusual punishment.
The 14th Amendment's Section Three is entirely consistent with the Constitution's effort to protect democracy from itself. After the civil war there was a practical risk that politically popular southern politicians, people who had proven themselves disloyal to the federal union, would re-enter government as southern states were re-admitted. They would repeat an oath of loyalty -- the one they had already broken. They were untrustworthy. Democracy might not survive if people willing to subvert democracy were voted back into the government.
I offer below links to two briefs sent to the Supreme Court in support of the decision by the state of Colorado. This first brief was submitted by a group of distinguished historians. They write that the historical record is clear that a disloyal former president is exactly what the Constitution protects itself from.
Two brothers, both law professors, Akhil Reed Amar and Vikram David Amar co-authored a brief that also closely examined the history of that amendment. In the months after the election of Lincoln, but prior to his inauguration, President Buchanan's Secretary of War, James B Floyd, carried out the first insurrection, one that took place prior to the Civil War. His goal was to scatter and weaken the army. The authors of the 14th Amendment understood there was more than one way to carry out an insurrection.
The Supreme Court will do what it will. I don't expect them to affirm Colorado's decision. The lunacy would be to presume this court would risk surprising and angering Americans.
Each of these briefs require a reader to invest more time and energy than fits a format like this blog. It is more of a "curl up with a good book" situation. But the briefs each make a point. There is a strong case to be made that the Supreme Court should affirm Colorado's decision for the simple reason that it is what the Constitution directs them to do.
Very well written. It was shocking to find out that 3 of the SCJ literally lied during their job interviews without repercussions, about Rowe vs Wade. It's shocking to have the evil that is Alito & his sick agenda against women unveiled. It's horrible that 2 of them sexually assaulted women & that the witnesses willing to testify against the appointments of Thomas & Kavenaugh were not even contacted during their considerations for appointments to the SCJ. It's shocking that Amy never performed the function of a judge in any court of law before she was crammed into this court. We have SCJs who openly lie & will probably support don the con. The future of our country is looking quite bleak for women & children. It's hard to have hope that they will make the right decision about this obviously ineligible & very dangerous candidate who clearly led an illegal insurrection & has continued, for 3 long years, to harangue & lie about our president.