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The constitutional questions left unanswered with Trump's fourth indictment... [1]

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Date: 2023-08-25  

indictment

Indicted! again… The continuing crisis brought on by events surrounding January 6 and Donald Trump’s mad dash through the justice system persists— last stop, Fulton County mugging for attention and dollars. The nagging trauma that has gripped the nation for a time now may be reaching a climax. The low-life criminal behavior of the Trump political circus has transfixed us. Even his requisite mugshot glowers with rage and petulance unbecoming a former president. His behavior is more suited to a fallen mobster or pouting four-year-old. The exploits of a president whose time in power was noted for his attempts at skirting constitutional constraints, in defeat turned to undoing it. The Constitution written by imperfect men contained checks and balances to temper the imperfections within human nature by making it subservient to the rule of law. Clearly, they had failed to reckon with the likes of Donald Trump for whom the law is a tiresome restraint to be bent to his will. The Constitution and its rule of law that had survived the British, the Confederate rebellion, and two World Wars that threatened Democracy, must now deal with a villain worthy of a Marvel Comics script.

originalist sin

The Trump insurrection many consider a failure lives on. It has morphed and exposed weaknesses lurking within a Constitution whose words, written in the 18th century, may seem arcane to some in the 21st. Interpreting the founders’ intentions is an argument for those who maintain that the Constitution needs to keep up with the times. After all, in order to remain consistent with the spirit of the founders’ undertaking they should be relieved of their forgivable inability to know the future:

“It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies.” — Ulysses S. Grant, Personal Memoirs

Today originalist jurists, like Clarence Thomas and Samuel Alito argue the Constitution’s “letter” possesses a preternatural foresight that could predict the future. Their response is generally inflexible and promotes solutions that are similarly inflexible and wrong. Philosophically, their rulings and dissents are regressive relying on the letter of the document blind to its spirit. They ignore the archaic remnants of a bygone era when slavery was protected and only men with property held full citizenship. When “all men” referred to them and those like them. For originalists, these are simply anachronisms, men simply beholden to their times. Surely, the spirit of the words given our current understanding should have precluded the need for the 19th Amendment, Brown v. Board, the ERA, or Civil and Voting Rights. But even modernity escapes their judgment.

An originalist interpretation of our founding documents is not only limiting in its scope and reach but creates a moribund set of principles that allows its descendants the ability to promote and extend the ignorance and biases of past generations. There are advantages to maintaining precedent. However, precedents are best viewed as benchmarks that protect currently accepted norms. When our Constitution was ratified, it was meant to be a pragmatic guide for a new form of governance. Madison in his wisdom proposed a hedge against a consideration that their proposed document would be rigidly dogmatic by fighting for an amending process that allowed for reconsideration and review reflecting changing norms. Madison’s fight for a Bill of Rights introduced considerations that changed the interpretation of the document by clarifying that, unlike an organization steeped in ritualized doctrine and saddled down with tradition, our government was to be au courant:

“During the congressional debate on that amendment, states’ rights advocates wanted it to read “the powers not expressly delegated” by the Constitution would be reserved for the states. James Madison objected to “expressly.” He reasoned that there must necessarily be powers by implication, “unless the constitution descended to recount every minutia.” Madison won that vote, leaving the Tenth Amendment more general and subject to conflicting interpretation. The first amendments therefore continued the spirit of the original Constitution, mixing specificity with ambiguity, a combination that has allowed the Constitution to govern a vastly expanded nation with very few amendments.” — United States Senate, “Congress Submits the First Constitutional Amendments to the States.”

Originalists’ claim to the limits of the concept of judicial review, rests in great part on the 1803 Marbury v. Madison decision handed down by then Chief Justice John Marshall. Marbury established the role of the judiciary as a balance as a check power of the other branches of government. Judicial Review established the court’s role as arbiter in matters of dispute among the branches. Before Marbury, the requirements of an onerous amendment process or of legislative solutions, often partisan, were the only vehicles for “clarifying” the meaning of the Constitution’s original text.

A better view of the framers’ uncertainty of the role of the court in interpreting law is found in Alexander Hamilton’s discussion in Federalist Paper 78 in which Hamilton argues that the law over which the courts can interpret is not limited to those passed by the legislative branch:

Hamilton, arguably the most full-throated proponent of judicial review, similarly wrote that “the interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It, therefore, belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.” (emphasis mine) — Politico, “How the Founders Intended to Check the Supreme Court’s Power”, by Joshua Zeitz

The Section 3 argument

Contrary to the strident views of modern originalists, those present in ”the room where it happened” were less certain that they had enumerated all the rights and privileges, all the protections their document contained. They viewed themselves as pragmatic rather than prophetic. They understood that what they had written could not be all that was possible, that their limitation was more to identify and grant rights as opposed to delimiting them. In this view, the right to privacy endorsed by a modern court’s ruling in Roe v. Wade goes unmentioned as a fundamental right not because it is a modern conception but because at the time it was not recognized. The argument for civil and voting rights for all citizens is an even clearer example of constitutional misperception given the racist beliefs of some founders and the reluctance of others to confront their discomfort in pointing out the hypocrisy in their colleagues’ arguments. At the time they preferred to entertain the risk of a “compromised” agreement that later would fester and threaten our very existence as a democracy.

That brings us to the current issue at hand in which scholars and pundits argue that Donald Trump may be constitutionally disqualified from office due to the 14th Amendment:

Disqualification from Holding Office 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. — Fourteenth Amendment, Section 3

For textualists, the text-as-written of the 14th Amendment should be clear and direct. Ratified after the Civil War, the 14th Amendment is a reconsideration of the original document. It follows the 13th Amendment’s clear and direct abolition of slavery.

The 14th Amendment reads like a “housecleaning” measure that reaffirms and broadens the Due Process rights in Article 5 to strengthen the equal protections provisions while also clarifying issues related to the confederate rebellion in Section 3. It goes beyond the routine age and citizenship status required for consideration to add a disqualification-- a dimension that the founders would have understood as having taken arms against the British king. In their case what differentiated them as patriots rather than traitors was the conviction of their cause. The king had denied them their rights and had abrogated his authority over them. The same measure can be used to determine that in Trump’s case, his actions have been definitive in determining that he “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies.” His behavior has rescinded his right to govern.

Section 3 is obviously a clarification of an ambiguity legislators recognized in the original that included only qualifying attributes for office, and as for its influence, it bears all the weight and gravity of the original. After the Civil War, it became clear that those who advocated for an end to the Union were not qualified to lead it after their defeat so they could effect their disloyalty from within. The same logic stands for the current situation in an even more blatant manner since Trump has promised to populate his government with obstructionists and promised pardons to convicted insurrectionists. Many have noted the Constitution is not and was never meant to be, a suicide pact. Codifying the consequences of rebellion and betrayal from within eliminated the chilling effect on justice and fairness had they been allowed to participate in the post-war governments of the South. A reprobate South could hardly be allowed a second bite of the apple by returning partisan legislatures and courts to continue the struggle from within. Section 3 made certain that those involved in the confederacy would not serve under the color of law. It also set in stone a prescription for the disqualification of traitors from seats of power in the state into the future. In effect, the disqualification paragraph provides a mechanism for handling an unthinkable, and certainly unintentional, self-sabotage.

In an opinion article in the NYTimes last week, David French cited the Baude and Paulsen paper published in the University of Pennsylvania Law Review, which claimed that the provisions of Section 3 are self-executing. The point has been referenced in several diaries here. French makes the point that destroys critics who fear that the very act of holding Trump and his associates accountable will create a political crisis unlike any we have faced so far:

Trump and his allies are already advertising their plans for revenge. But if past practice is any guide, Trump and his allies will abuse our nation whether we hold him accountable or not. The abuse is the constant reality of Trump and the movement he leads. Accountability is the variable — dependent on the courage and will of key American leaders — and only accountability has any real hope of stopping the abuse. — NYTimes, “Appeasing Donald Trump Won’t Work,” by David French

The fear of reprisal argument is a strawman as French notes because whether or not they are held accountable by constitutional provisions, their recalcitrance will persist. If the courts are to be employed in arbitrating the controversy, it should be invoked by the perpetrators arguing their loyalty and affection for the Constitution. Section 3 requires no review to ascertain the clear statement of disqualification within its provision.

The long and secretive attempt at an electoral coup that was stymied when Congress certified the election of Joe Biden in the wee hours of January 7 is no longer in question. Courts have litigated the issue and have delivered verdicts. Whether Donald Trump authored the coup or aided the plotters is also not in question as his words and actions as the plot unfolded and afterward demonstrate clearly that his interests were the beneficiary of the plot. In the weeks and months afterward and before he declared his candidacy for president in 2024 his promise to pardon those who were criminally indicted and imprisoned for their crimes on his behalf only reinforces the position that the insurrection is ongoing and if he regained power he would aid and abet those who betrayed their nation for him. We are left to wonder how long should he be allowed to evade the constitutional sanction of disqualification under the Fourteenth Amendment.

That he is allowed to continue his shameless run for office is a perversion of justice and an indictment of the lack of resolve of Republican politicians in office and in the courts who choose to neglect responsibility for an obvious obscenity because they deem a constitutional remedy a relic:

“It was actually Thomas Jefferson himself who said 'we might as well ask a man to wear the coat that fitted him when he was a boy' as expect future generations to live under what he called 'the regime of their barbarous ancestors.' So even the founders that these kind of dead-hand originalists claim fidelity to understood better than their ideological descendants — today's judicial so-called conservatives — the importance of keeping with the times. And we deserve judges and justices who understand that.”

― Pete Buttigieg

To those who would rather ignore the dangers inherent in a Trump candidacy, a caveat; to offer him another opportunity to complete his coup using the very levers of democracy— free and fair elections which he chose to subvert— is asking too much of the ballot. The ballot box is an expression of our freedoms and not their savior.

Democracy deserves better than a 50/50 chance of survival.

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[1] Url: https://www.dailykos.com/stories/2023/8/25/2188957/-The-constitutional-questions-left-unanswered-with-Trump-s-fourth-indictment

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