Insurrectionists and the Supreme Court

The Colorado Supreme Court has ruled by a vote of 4-3 that Donald Trump cannot appear on the Republican primary ballot in that state because he is disqualified under the 14th Amendment to the U.S. Constitution.

The relevant part of the 14th Amendment says:

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.

It’s a long ruling – 134 pages for the majority opinion alone – and very thorough. It even quotes a ruling by Justice Gorsuch from back when he was a judge on the U.S. Court of Appeals for the Tenth Circuit. Of course, it’s only the opinion of one state supreme court out of fifty.

Even the legal analysts who think the Colorado court is right are pretty sure the U.S. Supreme Court is going to overturn it. And many of them are also arguing that even if the Colorado court is right on the facts and on its interpretation of the Amendment – and I think they are – it would still be better to defeat Trump’s authoritarian extremism at the ballot box rather than in the courts.

They have a point, but I disagree. I don’t think it’s good for the country to allow a vote on its destruction and that is precisely what we get if Trump is allowed to run.  Our fundamental democracy should not be put up for a vote.

We settled this matter by putting down the rebellion in our Civil War that ended in 1865. We passed the 14th amendment after that to make sure that those who were part of an insurrection could not hold political office. We also passed it, along with the 13th and 15th, to change some of the fundamental rules of our country that were adopted in compromise with enslavers when the Constitution was first written.

We should not have to fight that battle again. The fact that we are struggling with these issues 150 years after the decisive victory over the rebel states in the Civil War is due to our politicians and our courts not following through on either Reconstruction or those three significant amendments that expand the rights of all Americans. Continue reading “Insurrectionists and the Supreme Court”

Rethinking All the Rules

On the first day of our constitutional law class, a hundred or so of us assembled in a large classroom set up something like a theater, with two long rows of steps down to the platform and podium used by the teacher. It was the beginning of the second semester of our first year and we had survived thus far, so we were cocky enough to be talking noisily.

Then the professor came in: Charles Alan Wright, whose name graced various textbooks, who argued regularly before the Supreme Court, and who was particularly noted at the University of Texas law school for coaching the aggressive intramural football team the Legal Eagles. By the time he reached the front of the room, you could have heard a pin drop.

He looked around at us and then said, in a mild voice, “Would someone please give us the case of Marbury v. Madison?”

Now anyone in that room could have explained Marbury v. Madison. Hell, we learned about it in high school. Plus we were law students, legal nerds by definition.

For those who’ve forgotten high school or who aren’t from the US, it’s the case where Chief Justice John Marshall ruled that the Supreme Court can weigh in on the constitutionality of laws and actions by other branches of government. It’s a gimme question. Wikipedia has a good explainer on the case.

Yet everyone else in the room breathed a sigh of relief when Mr. Timmons raised his hand and gave the answer. That’s just how intimidated we were by the professor and by the importance of constitutional law.

Here’s the thing, though. The one thing that didn’t occur to any of us was to question whether Marbury was a good idea. I mean, it would have been like questioning the gospels in a Baptist Sunday school.

Professor Wright certainly didn’t raise the point. I doubt he ever questioned it. But after the last few rulings of the current Supreme Court, it’s pretty clear that allowing a group of unelected lifetime political appointees to be the sole arbiters of what’s constitutional is one of many flaws in our system. Continue reading “Rethinking All the Rules”