Selective appeals
but are we kidding ourselves?
The Colorado Appellate decision last night ignited a major fire across our nation about the 'voters’ or the law (meaning court decisions) settling our slates of candidates. I am somewhat perplexed by this response.
When the conservative, card-carrying members of the Federalist Society began four months ago citing the Fourteenth Amendment prohibition of an insurrectionist from running for office, I had a hard time grasping the controversy behind this position. Donald Trump lost the popular vote in 2020, literally dozens of court challenges and recounts confirmed that he lost, numerous witnesses swore in statements that his legal counsel and government officials (including the Attorney General of the United States) personally explained this fact to him to assure his understanding that he lost, and yet he publicly advocated for groups to overturn the outcome he despised. He may have had employees (or erstwhile employees it now seems) tell him otherwise but the Attorney General does seem a pretty authoritative voice on this. I have no idea what more one could require for designating him an insurrectionist.
I absolutely support the former president’s right to appeal the Colorado ruling—in this case to the Supreme Court. I hope the Roberts Court, the one so enamoured with original intent defined as the Constitution and its twenty plus Amendments, will decide based on the law rather than on selective use of the law to forward politics. I am not naive that politics infuses into everything but this really does seem pretty clear. What I also don’t support is that the voters making the decision somehow delegitimises the legal reasoning for blocking him from the Colorado ballot.
We tend to ignore the voters’ will far more selectively in this country than we ever adhere to it these days.
Qualified citizens of any stripe or affiliation should only have the option to vote for individuals who meet the Constitution’s criteria set forth in Article II, Section 1, Clause 5 to run for president of the United States. That means any candidate needs be a natural born citizen at least 35 years old who has resided in this country for at least fourteen years. Pretty straight forward.
I grew up with lots of Colombians whose parents made sure their kids were born in the United States (usually New York back then) to make them eligible to be president. So far, none of them has run. Yes, people have loved this country for what it has always meant.
The revisions to the Constitution, those pesky little reconsiderations written into formal Amendments ratified by two thirds of the state legislatures or two thirds of the Senate and of the House, or by a brand new Constitutional convention, are also pretty important thoughts. After all, the Second Amendment that is so cherished by so many was an Amendment to the original body of the Constitution.
The Fourteenth Amendment, enacted in July 1868, talks about citizenship, due process, and in Section 3 covers the following concerns after the Civil War insurrectionists attempted to shred our nation.
‘No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.’ (italics added)
I simply don’t understand why Donald Trump qualifies to run as president.
I am not important but the people who raised this question are conservatives and loyalists of the Federalist Society, a fraternity of like-minded jurists who believe in serious application of the words of the Constitution. These are purveyors of many ideas put into effect over the past twenty years to eliminate ‘activist’ judges. They are mainstream conservative jurisprudence-loving guys.
Today, because a Colorado court upheld an appeal, based on these same conservatives (particularly Michael Luttig—a renowned retired conservative judge originally from Tyler, Texas), of a lower case ruling rejecting this Amendment, this is a partisan move by an activist court? Oh, please.
I am not a lawyer, don’t play one on television, nor want to be one. But I am an educated person who reads the words of the Constitution. I simply think the hypocrisy of turning some things back to the voters—women’s health care or gun restrictions on a state by state basis—to reverse protections while ignoring this fundamental evidence of an insurrectionist demanding we ignore his prior behaviour to allow him another run for the most powerful office in the land is insanity.
We are being worn down by preposterous arguments that the rest of the world sees as deliberate lunacy. It is exhausting to live here in the contemporary era. That constant gaslighting—causing sane people to question normalcy—is extinguishing our democracy. Don’t kid yourself. If this is not craziness, I don’t know what it is. But it is eroding trust in everything, precisely as those opposing rule of law desire.
What do you think as it matters so much? Why do you think as you do?
Thank you for taking time on this today. I appreciate your feedback as I do daily. This column is to expand our discussion so please feel free to educate me and others on how you see our nation progressing, regardless of those views as long as you express them respectfully.
The intrigue of the water pattern keeps me sane like so many aspects of light.
Be well and be safe. FIN
Amendment Fourteen, U.S. Constitution, 1787, retrieved at https://constitution.congress.gov/constitution/amendment-14/
Jackie Calms, ‘Column: Two conservative scholars say the case isn’t close—The Constitution bars Trump from running again’, LosAngelesTimes.com, 16 August 2023, retrieved at https://www.latimes.com/opinion/story/2023-08-16/donald-trump-constitution-federalist-society-14th-amendment-insurrection
Sudiksha Kochi, '“'Masterful’: Former conservative judge applauds decision to remove Donald Trump from Colorado ballot’, USAToday.com, 20 December 2023, retrieved at https://www.msn.com/en-us/news/politics/masterful-former-conservative-judge-applauds-decision-to-remove-donald-trump-from-colorado-ballot/ar-AA1lNXUW
Extremely thoughtful response, a portion of which I expect entirely matches the appeal ath will go to the Court. I simply don’t understand how it can remain an open question if one orchestrated a pen insurrection. Thank you so much, Z Jim. Also, I never thanked you for your comments a fortnight ago about Thailand. I want discuss with you further.
As those in Washington D.C. are so fond of saying... "this is a 3rd rail issue" meaning it's fully electrified and has the potential to kill you. Well, kill you may be an overstatement, but it certainly is dividing the country from the top to even casual conversation between neighbors and family. It does make for spirited talk over Thanksgiving and Christmas gatherings I'm sure...and has probably caused quite a few Facebook unfriending actions as well. Emotions are raw.
Words matter. And seems to me, this is what it's coming down to...the strict interpretation of the words of the Amendment.
"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President... Trump isn't running for any of those.
"or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States,"
Well Trump has held a civil "office" under the U.S. and he did take an Oath. The Presidential Oath reads: "I do solemnly swear (or affirm) that I will faithfully execute the "Office" of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." This Oath does indicate faithful execution of "the Office" so that's again, pretty solid. "preserve, protect and defend the Constitution" seems pretty straight forward as well. Unlike the miliary oath of office which includes "against all enemies foreign and domestic..." that's not specified in the Presidential Oath which is more of a generalized statement.
Who does the Amendment apply to? "as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State," I suppose the argument here is whether or not the President is "an officer of the United States"... if not, it seems this would not apply to the President.
Finally, it sets the condition of "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." So that goes back to whether or not Trump's actions were determined to be insurrectionist. However, if you go by the fruit-of-the-poison-tree doctrine, the first elements would have to be satisfied before you get to the insurrectionist aspects. If it's determined the Amendment doesn't apply to the office of the President, then whether he's an insurrectionist or not would seem to be moot. I assume this is what the Colorado Supreme Court and most likely the U.S. Supreme Court will be considering as well.
In August of 1998 we had a similar lesson in "words matter" by another President. When questioned by a grand jury regarding Bennett's knowledge of Bill Clinton's relationship with Monica Lewinsky...the question ended with "Is that correct?" President Clinton's immortalized reply was "It depends on what the meaning of the word 'is' is."
There is no doubt that our litigious society will never be satisfied by solving things through discourse. Sadly, it seems to be even more rampant in recent years with many political races being decided by lawyers and courts vs. the voice of the people. The real concern here is what all of this does to erode our faith in a fair, objective, democratic elective system.