The Big Idea
The growing discussion over the summer about the implications of Section 3 of the 14th Amendment in relation to Former Second Confederate President Donald Trump’s eligibility to run for reelection seemed to me like a fairly abstruse argument until multiple conservative legal scholars began asserting his ineligibility in no uncertain terms. It seems almost certain at this point at least one state will refuse to put his name on the ballot, and that issue almost certainly would rise to the Supreme Court. Excluding him from the ballot would be both constitutional and utterly disenfranchising to a huge number of fellow-citizens who sincerely want to elect him. Would it make America more stable or less to exclude him from the ballot, and is that even the right question?
Let’s start with some basics:
1. The most stable outcome would be for Trump to be repudiated decisively by the Republican Party in its nomination phase (good luck with that!), or at least in the general election;
2. That’s true, but arguably irrelevant.
What do I mean? The Constitution is the rulebook for the game of peaceful governance that we play—we may want to change the rulebook, but this is where we stand today. As of 1868, it lays out four ironclad rules for being President:
1. Must be born a citizen of the U.S.;
2. Must be over 35;
3. Must be a U.S. resident for 14 years; and
4. Must have not, after previously having taken an oath as an officer of the government, have participated in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof.
Three of these are very easy to verify. The fourth certainly was in 1868. There is no formal process outside of a court to affirm that someone is or isn’t an insurrectionist or rebel, but the Constitution doesn’t say “be convicted of insurrection or rebellion in a court of law,” so does that even matter? Jan. 6 participants were convicted of “seditious conspiracy;” is that “insurrection or rebellion?” Does it matter?
Let’s do a thought experiment: let’s say Greta Thunberg, a Swedish citizen aged 20, was the most popular person in America, bigger than Beyonce and Taylor Swift combined. 80 percent of the country adores her. She announces she’s running for President in 2024. The Democratic Party (I mean, it wouldn’t be the Magas!) embraces her wholeheartedly, totally indifferent to her ineligibility, and picks her to top their ticket by acclaim. Across America, state secretaries of state, election officials, and judges say, “Who are we to stand in the way of democracy? Let the people speak!” She wins in a landslide, state electors convene to cast their symbolic votes for her, and those votes are duly endorsed by Congress on January 6, 2025, as a crowd of thousands on the Capitol grounds peacefully cheer her ascension. Supreme Judicial Council Chief Justice John Roberts is beaming as he swears her in on January 20, and we all can’t wait to see her all-electric armored limo.
But is Greta President? Or can any election on Earth make a 20-year-old Swede President of the United States when the Constitution says she can’t be?
There are roughly 4.5 million American civil servants and military personnel who’ve taken an oath to “support and defend the Constitution of the United States.” What are we supposed to do when the pictures of “President” Thunberg start going up on federal office walls? Aren’t we violating our oaths if we obey the orders of someone the Constitution says can’t be President no matter what the rest of you 295 million idiots say?
Maybe this is okay! I’ve said repeatedly that the Constitution is obsolescent. Maybe something like this would let us relegate the old parchment to something like the King of England: the thing we all swear oaths to and say we are obeying, while in fact we actually follow the laws democratically passed through government no matter what the old parchment (Constitution or Charles III, take your pick) says. This may be for the best—but it’s not the constitutional system of government under which we live today, and I think if we’re going to change it we need to do it consciously, not because we’ve all become infatuated with a particular person. That unquestionably is counter to the Framers’ intent, whether those of 1787 or 1868.
January 6 was as much an insurrection as the Confederacy’s secession was to the men who chose that word for it in 1868, and we all saw Donald Trump’s role in it live on TV, and we’re going to watch more of the facts about it play out in court over the next year. He’s as much an insurrectionist and “aider and comforter of” insurrection as Greta Thunberg is a 20-year-old Swede.
Spare me the casuistries of “the President isn’t an ‘officer’” and “Section 3 isn’t ‘self-activating.’” If the holder of the highest office in the land isn’t an “officer,” what are we even doing here? Parsing what is an isn’t “self-activating” in the black-and-white text of the Constitution is legal argle-bargle, as Antonin Scalia would have put it.
At some point, one of these suits to bar Trump from a ballot will go to court, and probably to the Supreme Judicial Council itself, if it can find the time between its various luxury vacations with rich rent-seekers. But reflection really shows a court can’t resolve this: first, that “Independent State Legislature Doctrine” so-called “originalists” claim to love would indicate state officials have final say over who ends up on their ballots; second, more fundamentally, the courts can say they don’t care that Donald Trump is an insurrectionist, but they can’t say he’s not an insurrectionist, any more than they could say Greta Thunberg is a 35-year-old natural-born American, or that the sun rises in the west. A court that says Trump is not an insurrectionist is a court saying January 6 never happened.
For those of us Oath-Takers (not to be confused with Insurrectionist Stewart Rhodes and his “Oathkeepers”), the next year needs to be a time of deep reflection: how do we serve, or can we serve, in an administration led by someone our own oath tells us is illegitimate? Can any court tell us not to believe our lying eyes, and not worry our pretty heads about it? I don’t know the answer to any of this, so don’t ask me.
For the rest of you, you might want to just try to beat Trump at the polls and hope that constitutes the final repudiation of Trumpism, but that just ain’t how it’s gonna be. I’ve said before the American Third Republic has ended; Trump merely making the ballot in flagrant violation of the Constitution is just further proof of the end of our constitutional order, and the need to somehow create a new one.
The Republican Provisional Authority
As I write about whether it’s even possible to serve honorably in a second Trump(ist) administration, the Heritage Foundation has gone out and published “Project 2025,” an impressively-large effort by several hundred conservative activists to shape a strategy to eradicate “leftist” thinking in the federal government and fill it with loyal Magas. Famously, the last time the Heritage Foundation tried to recruit people to populate a government was the Coalition Provisional Authority in Iraq in 2003, and we all know that went just fine!
Sadly, they’ve put even more work into fucking up this country than they put into fucking up Iraq, and that’s saying a lot. Combined with the widespread implementation of “Schedule F” across the Government—a personnel system designed to strip civil service protections from government employees—this is a path to personalist government as America hasn’t experienced since the mid-1800s. If I could single out anything else in particular, it would be Hamilton Nolan’s deep-dive into Project 2025’s labor policy. Judging from Project 2025, Magas appear to believe America was last “great” in the Gilded Age. I don’t care who you are, only billionaires would be better off in an America like the 1890s. For the rest of us, that’s a nastier, brutish-er, and shorter life.
But we have to accept Fascism because Joe Biden’s too old, right? Look, 1. He’s exceeded my expectations dramatically; 2. Kamala Harris is uninspiring but certainly competent to take the reins if needed; and 3. Did you notice Donald Trump is an insurrectionist who wants to kill and imprison his enemies? And on Harris, you know who else didn’t inspire a whole lot of confidence as Vice President to a President considerably sicker than Joe Biden? Harry Truman. So quit your bitching, quit dreaming wistfully of alternative candidates, and get behind the man (and woman) in the middle of the fight. Taylor Swift will thank you, and what’s better than that?
It’s good to see organized religious groups starting to rally against Christian nationalism. I worry it’s way too late in the game, but better late than never.
Amanda Moore’s recounting of how she infiltrated the Far Right was one of my favorite summer reads.
The Georgia Legislature is trying to figure out how to kneecap Fani Willis. This is “lawfare.”
Did you know September 15 was “Democracy Day?” Dan Froomkin points out how the media sure didn’t tell you, and goes through how it’s failing democracy—and how it could change its ways.
Security Sector Reform
Politico makes an interesting observation that blue cities keep electing progressive DAs, then turn on them if crime goes up. If I have two takeaways from studying the American security sector for MSU, they are: 1) crime’s rises and falls appear unconnected to security sector policies—i.e., crime rises and falls the same in red and blue areas; and 2) cops sabotage reform efforts anywhere they can.
Meet Charles Haywood, the shampoo magnate who fancies himself a warlord. You also can read about his ties to DeSantis advisor Chris Rufo, and his admiration for Franco and Pinochet. But if you really want to be a warlord, getting elected sheriff in a rural county is your best bet.
Speaking of warlords, Coffee County, Texas apparently didn’t notice they had a 50-officer “police force” shaking down their 250-person town until an investigative reporter found out. Best of all, many of the cops had been fired already from other jurisdictions!
A group of armed “boogaloos” showed up on a schoolyard, and no one did a thing. Every single state has laws against militia activity; they don’t get enforced because cops are too supportive or too afraid.
Texas’s post-Uvalde legal mandate to have one armed cop at every school is turning out to be just the shit-show you’d expect. But the real joke is, the government has no way of knowing how well this law is being executed, because they didn’t mandate reporting in the law!
RICO is a funny law. It’s being used most prominently in Georgia against Trump, but you should be very concerned with how it’s being used against the opponents of “Cop City,” the domestic counterinsurgency training center I’ve warned you about before. They’re saying the Cop City protests originate in anarchists protesting George Floyd’s murder, even though Cop City hadn’t been under development at that time. Any protest movement could be a racket under this definition.
Bill Bratton is best known as the originator of “Broken Windows” policing, which he claims here is mistakenly conflated with “Zero Tolerance” policing. Giving Bratton the benefit of the doubt here, and looking at Robert Peel’s unobjectionable principles of policing, the only conclusion I can reach is that most people who want to be cops shouldn’t be entrusted with the job, because they just can’t or won’t measure up to Bratton’s and Peel’s standards. This takes me back to conscripting police—if pros can’t do the job, we have to step up and do it ourselves as citizens. Incidentally, this is the same problem we had with counterinsurgency—it only works for geniuses, but the “geniuses” themselves weren’t smart enough to recognize that.
Keep an eye out for “Active Clubs.” They’re not there for physical fitness.
Good Reads
I started MSU in the belief there was a risk we were going to fall into a period of protracted political violence like The Troubles, or Italy’s Years of Lead. Adrienne LaFrance makes a strong argument that we’re there now, and it’s not at all clear when we’ll come out—or how.
Nicholas Grossman has a great “understand Biden voters” counterweight to the constant and often shallow media efforts to understand Trump voters. Why does the media do it so much? I think it’s part of grieving—we’ve all “lost” someone to Trumpism, and a lot of us struggle to understand how we might have prevented it. We just don’t have The New York Times to work out our issues in.
Hamilton Nolan has an interesting piece on “The Cannibal South,” where he says (I don’t disagree) that the South makes itself attractive to businesses by “eating its own.” I don’t know if he knows of the Confederate George Fitzhugh, who wrote “Cannibals All!” in 1857 as a critique of northern labor practices, asserting that slavery was kinder than free-labor capitalism (don’t ask). I think the important point for us is, the entire Republican Party believes this is the optimal approach for all of us.
I have a beef with Colin Woodard’s concept of America as a set of 11 distinct nations, because he basically says these patterns were set before the Civil War, and the later migrant waves were more affected by them than shaped them. But I gotta admit, he musters some impressive empirical data for his argument, both for life expectancy and for gun violence.
I talk about gerrymandered red states a lot, but Democracy Journal has a great look at Massachusetts, where even the most generous map edges Republicans out of power, because their one-third of the population is too evenly spread across the state. Gerrymandering, the Electoral College, and single-member districts disenfranchise millions of Americans of both parties and we’d all benefit from eliminating them.
Finally, some excellent analysis of what we’re seeing of contemporary politics as we watch Ahsoka or the most recent season of The Mandalorian: compromises and complacency doom democracies every time.
I’ve moved to the good place! I’m still on Twitter for now (I’ll be damned if I’ll call it “X”), but you also can follow me on Bluesky @morestableunion.bsky.social. If you have thoughts, ideas or contributions for MSU, I’d love to get them at monganjh1@gmail.com, and have you follow MSU on Twitter @MoreStableUnion. Share with all your friends so they can subscribe at morestableunion.substack.com.