Flipping on the 14th

They are the hardest words to say in a marriage: Harder than “I was wrong.” I had to say, “You were right.“

Worse, when I said them, the wife barely acknowledged my solemn confession. A nod. Maybe a grunt (or it could have been gas). Then nothing.

It started in Colorado. Then spread to Maine.

“They should kick him off every ballot,” the wife said of the orange traitor. ”I hope he ends up broke and in jail, and Melanie has to go back to turning tricks on the street.”

A nuanced and subtle political opinion I know…

“It feeds the victim narrative,” I said. ”Using the courts sounds like deep state stuff. It’s going to drive the right-wing nut jobs to do something crazy. The Supreme Court is going to find a loop hole anyway — like that first judge in Colorado. Better to give up the court battles — beat him at the ballot.”

She said nothing. Waved her hand like royalty dismissing a servant and went back to crushing candy on her iPad and asking every five minutes what is happening in the show we are supposed to be watching… Surprise Detective Sergeant Morse figures it all out in the end. But after he explained it, complete with subtitles on the TV, I had to explain it to her as she continued to look down and fiddle with multi-colored candied pixels on her iPad.

It’s Black and White

Last year, I first read about the 14th Amendment arguments for Trump. Of course he is an insurrectionist. Of course by the plain language of the amendment he cannot serve and should therefore be off the ballot. 

I don’t necessarily fully agree with “originalism” and “textualism” — the 9th Amendment makes it clear that we have more rights than what’s on the paper, so it was designed to be a “living document” that changes with people’s understanding of a “more perfect union”. But the 14th amendment was designed to keep the seditionists from returning to power. There’s no room for interpretation of that intent and the benefits of such a rule now.

You can’t have the fox guard the henhouse. Even if he honestly believed the election was stolen (and he didn’t), he had more than 60 attempts in court to prove it. All the “evidence” faded away under the law because there is no evidence. Only bullshit.

Protecting and defending the Constitution and rule of law means standing by it especially when you lose (ask Al Gore) — otherwise you are just using the law to justify your own wins. He swore to protect and defend the Constitution. He didn’t. He can’t be trusted to do it again — unless two-third of Congress says so.

I read the first “brief” by the two federalist society members. Baude and Paulson were trying to prove there are some intellectual roots to “originalism” and “textualism.” Look at the words – look at Trump’s actions. The case is black and white:

Section 3 of the 14th Amendment

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.

https://www.law.cornell.edu/constitution/amendmentxiv

Even if you don’t believe he led an insurrection, (and he did — ohh he clearly planned and called for the insurrection to stop the transfer of power) he also gave “aid and comfort” by not telling the seditionists and insurrectionists to leave the Capitol for nearly 3 hours. He didn’t call the cops. He didn’t call the national guard. He didn’t even ask them to leave for 3 hours. When he finally asked; they left. He did not follow his “oath” to protect and defend the Constitution.

If we are a nation of laws, Trump is ineligible. Allowing Trump back in makes a mockery of the oath of office and presidential duties.

Trump: (With his fingers and toes crossed) “Yeah, yeah, sure I swear to preserve, protect and defend, blah, blah blah… as long as I stay in power.”

I persisted

Even after the first set of essays, I persisted. Better at the ballot. Courts can’t pick our leaders. How would this even work? We can’t have bureaucrats picking presidents.

Then I read Judge Luttig and Lawrence Tribe’s take.

More of the same on intent and meaning and history of the 14th amendment. But clearer in how the 14th amendment goes into effect. No new laws needed. No other trials needed. Election officials can remove Trump just like they would someone born outside the US or someone under 35 years old.

Yet, I persisted. For the good of the country — beat Trump at the Ballot box… That’s how we preserve our democracy. I read a metric shit ton of other political opinions — mostly reinforcing my own opinion — that’s how you can tell a political writer is “smart.”

Then I read Timothy Snyder’s essay on “pitchfork politics.”

Snyder is a history professor at Yale who specializes in Eastern Europe. He has carefully studied how democracies rise and more importantly how they fall. Think Poland, Ukraine, Slovakia, Czech Republic, Austria, Germany, Italy, Romania, Hungry, Turkey and Russia over the last 150 years… The many cycles of kings then democracy or communism or fascism, then democracy, then autocracy or fascism (Putin), and sometimes democracy again…

There’s a predictable pattern of how democracies fall. Including: threats of political violence, and the courts becoming a “joke” because they only make politically expedient decisions and refuse to uphold the law. Making the law meaningless.

The Flip

After weeks of semi-serious reading, reflection and contemplation. I’m flipping.

Before I was against using the 14th amendment. Now I’m all for it.

We can not be cowed into letting Trump on the ballot. Then the bullies win. The law must win over the threat of political violence. If we break the law, give in to the threats and let Trump on the ballot, how will we “enforce” an election? What’s to stop him from claiming victory and taking power even after he lost. The threats and lies will only be greater then.

If we ignore the 14th Amendment, we can ignore the rest of the election laws. That was the point of Jan. 6. The law doesn’t matter — only political threats matter. But we prosecuted those criminals. We are prosecuting Trump for those crimes.

Better to take the traitor off the ballot to begin with. 

For the Trumpers who say enforcing the 14th amendment is bad “for democracy”, why don’t we ignore the Electoral College and just let the majority pick – that’s democracy. But Trump is highly unlikely to ever win a popular vote, so they would never say we should ignore that part of the law.

For those who say he was found “No Guilty” of insurrection at the the impeachment, so he should run… That’s a political show not a legal one. Even his supporters in the Senate (see Mitch McConnell) voted to acquit and said Trump should be held responsible in the courts.

For those who say banning him from the ballot is “undemocratic,” the founders left a remedy. They can vote in two-thirds of Congress that would let him back on the ballot. The same bar to convict him is the same bar to let him back in. Seems fair to me.

For those who only support Trump. Why the cult of personality? If Trump is ineligible, there has to be another Republican who could be a good President. Barring one person is not barring a political party. 

If Biden were barred tomorrow, the Democrats would probably pick someone better by March. Remember Lyndon Johnson, then Robert F. Kennedy and then Humbert Humphrey? We can pick a new presidential candidate in weeks.

It’s best to enforce the 14th Amendment at a national level through the Supreme Court.

Better that this Supreme Court actually stand for the law and follow its own philosophies of textualism and originalism. Otherwise they will become even more of a joke. Corrupt politicians who won’t follow their own ethics rules in robes with lifetime appointments is not what the founders had in mind for our highest court.

But they won’t. They will find some loophole:

• Presidency is not an office of government (WTF)
• Trump was acquitted by the Senate (not related)
• Congress didn’t enact a law to put the 14th Amendment in practice (the kind of legalese crap that makes us all hate lawyers)

Or treat it like abortion and “throw it to the states” to create chaos.

Or just declare that “insurrection” only stands for Civil War and you need hundreds or thousands of dead to have an “insurrection.” (But that’s bullshit too — see Europe for how many democracies have fallen into authoritarian states without bloodshed in the last two centuries).

So I’ve spent months, reading, writing, twisting and turning and finally flipping to my wife’s opinion. But it won’t change the outcome from the courts or the election. Worse, it didn’t even earn me a “win” at home.

I should have just kept my fucking mouth shut and agreed with her in the first place. It saves a lot of my time and a few of my brain cells…