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Patterico's avatar

I think you're right, David, but as a lawyer I can't help but notice that the default opinion of many (not you, necessarily, but many) seems to be as follows:

Yes, it looks like the 14th Amendment, read properly, disqualifies Trump from being elected president. Legislative history shows members of Congress discussing the fact that it applies to the presidency. Arguments about the difference between the oath taken by the president and by Congressional members and executive officers are plainly silly, as the wording of the Article II oath covers supporting the Constitution. Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to "remove" a disability means the disability is there until removed. Trump engaged in insurrection, as the historical interpretations cover incitement as engagement. And it's not a political question. But . . .

But it can't be enforced, obviously, no matter what the law actually says, because that would make people Big Mad. And make the Court look bad. And so it's important not only Section 3 not be enforced, but that the idea of its enforcement be resoundingly rejected in a manner that appears non-partisan.

(I am not attributing this position to you because you did not really express a view on the merits. But many have.)

I just think that's a weird position: that yes, the law is clear, but it can't be enforced because, well, of course it can't! And yet a lot of smart people on both sides say this. Enough that I think it is fair to call it the default position of smart lawyers.

And so we know that the Court will twist themselves (and the law) into pretzels to do the "adult" thing that preserves their perceived institutional legitimacy and keeps people from being Big Mad and maybe rioting or worse. And if that means pretending the law is something other than it is, well, we all have to be adults!

I dissent. I think the law here is clear and should be applied, and the public reaction and the institutional concerns about the Court's legitimacy be damned.

I know my view will never win the day. But it should.

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Michael's avatar

Even as I think you are probably right about how all of this happens, and maybe keeping Trump on the ballot is simply the right thing to do, all of the "what about his voters" and "what about democracy" talk frustrates me.

Why? Because in 2000, the people spoke and they wanted Al Gore. In 2016, the people spoke and they wanted Hillary Clinton. And the Gore and Clinton voters received no special consideration when the election victory was given to their opponents.

Of course, it is not that simple. We have a system of rules (Constitution and laws) governing our elections, and according to the rules, GWB and Trump won, not the peoples' preferred candidate. And we are a nation of rules, laws, and a constitution. Sometimes the expresssed preferences of the people must give way to the rules of the system. It's fair.

Or, rather, it's fair unless the rules of the system disadvantage the Republican. Then, and only then, can we elevate concerns of democracy over our rules-based constitutional order. It is a double standard.

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