The "Originalism is More a Vibe" Edition
It turns out the Supreme Court is less “calling balls and strikes” and more “hey, let’s make this soccer!”
The Supreme Judicial Council’s ruling in the Colorado 14th Amendment case compels me to reflect on it a bit, in light of the time I put into reviewing the case last October with “Section 3 and Me.” What’s this mean for stability? Aside from letting an insurrectionist run for the Presidency—it’s actually much worse than that. Surprisingly, I find Clarence Thomas’s role one of the less troubling aspects of the ruling. It’s that bad.
Yes, they did decide unanimously and correctly that we can’t have states making independent judgments about who is or isn’t eligible to be on a presidential ballot—at least when it comes to the constitutional eligibility questions like age or citizenship. Otherwise, Colorado could have decided Greta Thunberg can be on the ballot—or red states could have kept Barack Obama off their ballots in 2008 and 2012 over the birther conspiracy.
I thought the question the Council would seek to answer would be, “was Colorado right to determine Trump is ineligible by virtue of being an insurrectionist?” This could have led them to a) yes, Trump led an insurrection (they didn’t say he didn’t!), b) yes, Colorado was right to conclude that, so c) he is ineligible nation-wide. I expected the Council to find a way to say that 1/6 wasn’t an insurrection as the Framers would have understood it, or that Trump’s behavior wasn’t clearly insurrectionist enough, or at least not by court-of-law standards of evidence—after all, Jack Smith didn’t charge Trump with the crime of insurrection.
Instead, they asked us not to believe our own lying eyes in a different way: they said that only Congress may decide someone is disqualified under Section 3 of the 14th Amendment, even though the plain text of the amendment states that the disqualification exists independent of Congress: it is not Congress that creates the disqualification, but rather Congress that, by a two-thirds vote, can lift it. If we accept the standard meaning of “Congress doing something,” that’s passing a law—a majority of both houses pass a bill (the Senate filibuster is a rule the Senate can change), and the President signs it.
Just like this guy.
This is a pretty scary Pandora’s box Chief Ayatollah Roberts has opened. If Trump wins in November and Magas take House and Senate, what’s to stop them from voting that all Democrats in Congress are insurrectionists and hereby expelled? Or if Dems win full power, why not vote that Alito, Thomas, Gorsuch, Kavanagh, and Coney Barrett are all insurrectionists? In effect, the Council just dangerously lowered the bar for impeachment.
This is even more surprising considering that one thing Roberts’s Council has been very good at is enhancing its own power. That’s a common theme to his jurisprudence. My guess is the five ayatollahs who made this ruling bet that only Magas ever will use it; that Democrats are so soft, weak, and institutionalist that they wouldn’t even conceive of such a thing. They’re probably right. Considering that the judiciary is the branch of government most dependent on faith in institutions for its power, that’s a pretty dramatic statement of these men’s (and the gender divide here is striking to me) true radicalism.
The danger of this ruling goes even further than the insurrection clause, though. To date, the three “Reconstruction Amendments”—13th, 14th, and 15th—have been considered self-executing, not needing particular congressional action to have force of law. This is the first time a court has said otherwise, and while this ruling limited that to this particular clause of this particular amendment, these ayatollahs have a long history of making a ruling saying it’s narrow and tailored, and then using that “narrow and tailored” ruling as precedent for a later ruling. There’s nothing to stop these extremists from declaring that the amendments aren’t self-executing and have no force without legislation, in which case they’re effectively nullified, and with them most Americans’ civil rights protections.
It’s pretty clear that so-called “Originalists” aren’t big fans of the constitutional amendments after those of the original framers—the first twelve. They consistently fail to accord the same deference to the framers of the Reconstruction amendments, or later ones like the 19th (women’s suffrage), 22nd (presidential term limits), 24th (poll taxes), or the 26th (voting at age 18). A blatant re-writing of black-and-white text like this means no part of the Constitution is safe from our new ruling quinquevirate (rule by a group of five—I had to look it up). Yet they’ve ultimately set themselves up to be usurped by a dictator whose only question in any future disagreement with the ayatollahs will be, “how many divisions does John Roberts have?”
So as many before me have said, our institutions won’t save us—too many actually are working against us. Donate, organize, volunteer, and vote!