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Tag: 14th amendment

Trump's Supreme Court States The Obvious: He Owns Them

Yesterday morning the Supreme Court ruled on the Colorado case striking Donald Trump from its election ballot because, as the Colorado Supreme Court held, he is an insurrectionist as defined under paragraph 3 of the 14^th Amendment. As expected, they threw the case out, effectively deciding for Trump and against Colorado. The decision was interpreted as a huge win for Trump practically everywhere: “A massive victory for Trump” screamed CNN; “The U.S. Supreme Court handed Donald Trump a major victory,” chorused Reuters.

Donald Trump himself, like the megalomaniac he is, cruised over to his social media lie-factory and yelled from whatever rooftop it’s under, “BIG WIN FOR AMERICA!!!”

The vote on the court was 9-0, meaning that all nine justices voted for Trump’s position that a single state, Colorado, cannot throw a candidate off its ballot under the 14^th Amendment. The decision for the court as a whole was unsigned, but there were two concurrences disagreeing with the decision on a somewhat less than subtle ground we’ll get to in a moment.

One of them, written by Justice Amy Comey Barrett of all people, uttered the quiet part out loud. She openly said what the whole court wouldn’t – that the case was so terrifying, they just pushed it off their desks. “In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”

She may as well have begun with “Oh, my goodness!”

You have to wonder what it would take to shock this Supreme Court into taking action -- maybe a decision by a court in a state like Alabama ruling that in some circumstances it’s okay to murder Black people in cold blood?

I guess what Justice Barrett said was a version of Bush v. Gore, another “politically charged issue in the volatile season of a Presidential election,” when the Supreme Court told the world they didn’t really mean it as they installed George W. Bush as president even though Al Gore was ahead in the vote count. Remember how, having injected themselves into the election, the Supreme Court said that’s not what they were doing by trying to limit the damage when it held that the case was not to set a precedent? That was like saying, “Oh, that body over there with democracy on its forehead? Whatever you do, don’t pay attention to that.” Barrett’s concurrence did something of the same thing. She said she agreed with the result of the decision – her favorite president gets to stay on the ballot – but not with the, uh, methodology of how the majority got there.

What the five justices in the majority did was this: they, and the rest of the court for that matter, utterly ignored the finding by the Colorado Supreme Court that Donald Trump had committed insurrection. How could they do that when the whole purpose of paragraph 3 of the 14^th Amendment was to deal with the results of the insurrection which had just taken place, namely the Civil War? Well, the Supreme Court said it’s not our job to enforce the 14^th Amendment. That’s up to Congress.

Which is like saying, oh, we’ll just leave that problem up to the snarling pack of rabid dogs over there. They’ll get together and do it for us.

To call this position taken by the court bullshit isn’t sufficient. It’s a gigantic, muciferous, glob of a lie. Besides dealing with the scourge of insurrection, the 14^th Amendment was written after the Civil War to confer citizenship rights on former slaves and to ensure that the Southern states, which had treated them like property, afforded former slaves and every other citizen “equal protection under the laws.” Brown v. Board of Ed is just one example of when the Supreme Court enforced the 14^th Amendment’s guarantee of equal rights under the law, and many, many other similar cases have addressed the rights guaranteed by the 14^th Amendment without the help, if it could be called that, of Congress.

So, why is the court at this juncture pointing over there across First Street on Capitol Hill and saying, in effect, “it’s their problem"? Because they know the Congress can’t get itself together to keep the fucking government open by passing a budget, much less address the issue of the damn insurrection that took place right there in front of them and forced them from their offices and chambers and left five dead.

Donald Trump did that, and the three justices on the court appointed by him, along with the other three Republican justices in his thrall, will not be the ones who uphold the law in the Constitution which so clearly disqualifies him from holding a federal office. They’re scared of offending Trump and his violent followers. Why, if they did that, it might interrupt the vacation they’re planning this summer at one billionaire’s Adirondack camp or another billionaire’s salmon fishing stream.

I have become accustomed to reading these appeals court decisions. Hell, it has become a major part of my job. But I have trouble finding the words to describe what a profile in cowardice this Supreme Court decision is. If they use this decision as precedent and continue washing their hands of enforcing the 14^th Amendment, it spells the end of equal enforcement of the laws in this country. To leave enforcement of basic rights up to the Congress is to disavow the responsibility the Supreme Court took upon itself in Marbury v. Madison to be the final arbiter of what the Constitution says and what the law means. Leaving those decisions up to the band of yahoos who are running things in the nation’s legislature is like asking the thieves who just robbed the bank to toss us a few pennies as they divide up their ill-gotten gains.

This decision negating the insurrection clause in the 14^th Amendment, raises the question of whether the three post-Civil War amendments -- ending slavery, conferring the right to vote, and ensuring equal protection of the laws without regard to race, creed, or national origin -- will have any force at all in the coming years. The Supreme Court already eviscerated the rights of Black people to vote with Shelby County v. Holder. What is next on the right-wing agenda? Allowing segregated schools? Enforced labor for immigrants seeking citizenship?

Steel yourselves. I’m afraid this is just the beginning.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter , from which this is reprinted with permission.

Imagine If Salvador Dali Painted A Surreal Supreme Court Appeal

That’s the way Donald Trump’s appeal to the Supreme Court reads, as his team of expert lawyers attempts to take on Colorado’s ban of Trump from the state’s presidential ballot based on the 14^th Amendment. I mean, the word surreal will not suffice. Under Trump’s reading of the Constitution, the 14^th Amendment’s ban on anyone who has violated their oath to the Constitution by committing insurrection applies only to those who already “hold” office, not to those seeking office. So, Donald Trump is telling the court that the 14^th Amendment demands that a person who has committed insurrection must be elected to office before he can be disqualified.

Constitutional scholars such as Lawrence Tribe of Harvard and the distinguished conservative jurist J. Michael Luttig have argued that Section Three of the 14^th Amendment is “self-executing,” that it “requires no legislation, criminal conviction, or other judicial action in order to effectuate its command.” Grounds are found for this interpretation in the amendment’s final sentence, which states that “Congress may by a vote of two-thirds of each House, remove such disability,” the disability, of course being the ban against holding office if you are an insurrectionist.

Trump’s legal eagles read this provision upside down and backwards, that the Constitution is requiring that an insurrectionist achieve office before the 14^th Amendment kicks in. The amendment was written after the Civil War to ban former Confederates from holding elective office, not just in the Federal government, but “under any state” in the words of the amendment. Now, I guess you could make an argument that the Constitution is overstepping its powers in that demand. Under a so-called states' rights reading of the Constitution, it should be up to the individual states to decide who gets to serve in their legislatures or be elected governor, or even be appointed to any “office.”

But there it is. Not only does the 14^th Amendment ban insurrectionists from serving in federal office, it bans them from election to office in their own states. That is how seriously the writers of the 14^th Amendment took the crime committed by Confederates, who fought a war against the government of the United States and in so doing violated the oaths taken by anyone who had served in federal office or who had been soldiers in the army of the United States.

You are out, the 14^th Amendment in effect says. It’s a lifetime ban.

But not Trump, says his appeal. “The Constitution requires that the President qualify under section 3 only during the time that he holds office,” reads the appeal. So, at the time that the 14^th Amendment was written, what Trump and his lawyers are saying is that the writers meant for former Confederates to have to run for office and be elected in order for the provision banning them from office to take effect.

Hey, Jefferson Davis! Why don’t you run for governor of Mississippi so we can ban you from office? Or maybe what we’ll do, because we’ve decided that you have adequately made amends for having been the president of the Confederacy, we’ll decide to pass a law, by a vote of two-thirds in the House and the Senate, allowing you to serve. How about that, Jeff?

Absurdist enough for you? Trump’s appeal goes on to assert that the 14^th Amendment does not apply to him for two more surreal reasons: because the president is not an “officer of the United States” under the 14^th Amendment, and because Trump, as president, did not take an oath to, in the words of the amendment, “support the Constitution of the United States,” but rather to “preserve, protect, and defend the Constitution,” in the words of the presidential oath.

Now, we could call Trump’s Supreme Court appeal hair-splitting, but that wouldn’t be fair to inadequately conditioned and treated hair, would it?

Two hundred Republican members of Congress weighed in with an amicus brief on Thursday asserting that the state of Colorado had “trampled the prerogatives of members of Congress.”

Of course they did.

Any normal Supreme Court, which is to say, any other sitting Supreme Court in the history of the United States, would throw this out of control assemblage of legal table scraps out with the garbage.

This Supreme Court will hear oral arguments on February 8. It’s too bad Dali isn’t alive to be there and sketch the proceedings, because I’m sure it would take his talents to put it across.

Please consider subscribing to Lucian Truscott Newsletter , from which this is reprinted with permission.

That Wondrous, Thunderous 14th Amendment Down On Trump With Vengeance

With the ruling by the Colorado Supreme Court that Donald J. Trump is ineligible to appear on the presidential ballot of that state because he was found to be an insurrectionist, if the 14^th Amendment to the Constitution was a book you had to check out of the library, it would be so tattered and thumbed and smudged and worn it would be unreadable. We’ll get to the relevant part of the 14^th, Section 3, in just a moment, but for right now, let us pause to wonder at the amendment itself.

The 14^th Amendment is one of the three Reconstruction Amendments proposed and passed in the heat of the end of the Civil War. The United States – that is, the Northern states that had remained in the Union – had just fought and defeated an insurrection of the southern states. The South had seceded from the Union in order to protect themselves from what they knew was coming – a legal mandate ending the institution of slavery, which those states saw as their sovereign right, and which they thought they needed for their economies. The war went on for four years and was the bloodiest conflict this nation has ever fought, costing the lives of more than 600,000 Americans.

Let’s put it this way: the winners, the North, were pissed, and they wanted revenge. The Reconstruction Amendments were aimed directly at the losers in the South. The 13^th, 14^th and 15^th Amendments abolished slavery, awarded citizenship to former slaves, and provided equal protection under the law to them and all other citizens, and prohibited discrimination in the right to vote on the basis of “race, color, or previous condition of servitude.”

The Reconstruction Amendments were the North’s never-again laws, passed to prevent the South from ever fomenting an insurrection again. The wording of their text does not reflect the anger in which they were written, but reading them today, the rage of the North at the insurrection against the United States strikes like a lightning bolt in each of them.

Section 1 of the 14^th Amendment is a clear example of the force its framers intended. Having ended and outlawed slavery in the 13^th Amendment, Section 1 proceeds to order what the Southern states had refused to do for more than 70 years – it grants citizenship to former slaves and gives them the same rights under the law that any other citizen has, guaranteeing that the “privileges” of citizenship will not be abridged without due process of law. Everything you had been able to do to slaves before, Southerners, you can do no longer.

Section 2 rescinds wholly and completely the so-called “three-fifths compromise” the writers of the Constitution made in order to gain the signatures of the Southern states to the Constitution. It wasn’t a compromise at all; it was rather a death sentence not only to slaves but to the nation under which the Constitution was founded. The three-fifths compromise increased the representation of southern states in the House of Representatives by allowing them to count each slave in their populations as three-fifths of a person, in addition to the number of the full citizens of those states.

Section 2 threw that piece of shit betrayal of Black human beings on the trash heap of history by ordering that representatives would be apportioned according to the count of “the whole number of persons in each State, excluding Indians not taxed.” Let’s leave aside for the moment the awful exclusion of native Americans from the manner of representation and address the other slap against the Southern states in the amendment. The final clause in Section 2 penalizes any state in the allocation of its representatives if it denies or abridges the right to vote of any citizen “except for participation in rebellion, or other crime.” Get it? It’s only okay to deny the right to vote to insurrections and criminals, not other citizens.

Interesting, huh? The North wasn’t going to permit Southern states to give the vote to insurrectionists and rebels without paying a cost. Any Southern State thinking they could reward their Confederate “heroes” and somehow maintain their status in the Union, well, they would suffer the punishment of having their power slashed.

And now we come to the part of the 14^th Amendment which may as well henceforth be called the Trump clause. Section 3 bluntly and forcefully bans from office anyone who “shall have engaged in insurrection or rebellion against the [United States] or given aid or comfort to the enemies thereof.” That includes anyone who has “previously taken an oath…to support the Constitution of the United States.” The meaning is clear: Section 3 bans anyone who betrayed his oath from ever again serving the country he had sworn to defend.

Let’s take a moment to discuss the “given aid or comfort to the enemies” clause. If you betray your oath to the Constitution and commit insurrection against your country, you are, perforce, an enemy of the United States. That’s what they’re talking about here. This isn’t some afterthought in Section 3. It is yet another slap against those who fomented insurrection and sought to overthrow the U.S. government. In the context of Donald Trump, the Colorado Supreme Court has found that he qualifies as an insurrectionist by his own actions, and by the support he gave those he inspired to assault the Capitol in his name. Remember that little video he tweeted out late in the day on January 6 when he told his followers it was time to go home? He made a point to tell them that “we love you.” What’s that you said, Mr. President? He didn’t say, you did a bad thing, you committed crimes, and I’m mad as hell at you. He gave them aid and comfort in clear, unambiguous language.

Section 4 takes yet another shot at former Confederates. It says that “debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” You know who they’re referring to there: former soldiers who served in the Union army. Section 4 says to the South, we’re going to take some of your tax dollars from here on out and use them to pay the pensions of loyal soldiers of the North who lived up to their oaths. Additionally, Section 4 says that the United States will not “pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” So, take that, insurrectionists. We’re not paying you back for losing your livelihood when you were betraying your country.

Some brave court could find that this clause applies to you-know-who. Trump could be denied his presidential pension because it was during his time in office that he instigated an insurrection against the country and the Constitution to which he swore an oath. He should not benefit from his service in office after that.

Section 5 drives in the final nail: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” It’s the same clause tagged onto the back of the 13^th Amendment ending slavery, and onto the tail end of the 15^th Amendment, guaranteeing the right to vote and barring any state from abridging it because of race, color, or previous condition of servitude.

The reconstruction amendments were conceived of and ratified in the reflected heat of the Civil War. The Southern states, at which they were aimed, fought their ratification forcefully. When the amendments became part of the Constitution, Southern states instituted what came to be known as “massive resistance” to block them with state laws, violence, arrests, lynchings, the Ku Klux Klan, and everything else they could throw at them. It wasn’t until the Warren Court decided Brown v. Board of Education and the passage of the Civil Rights Act and Voting Rights Act in the mid-1960’s that the massive resistance of the South was penetrated with the force of law.

Today, with the Supreme Court Trump and others have forced on us, we are still fighting for the rights guaranteed by the Reconstruction Amendments. The Voting Rights Act is in peril, and I wouldn’t put it past this court to overturn Brown v. Board of Education.

The 14^th Amendment still stands in all its thunderous glory with the word “insurrection” appearing again and again in its text. There is at least a chance that the wisdom of the framers in the mid-1800’s may help to rid us of a an insurrectionist who tried to overturn the results of the 2020 election. Donald Trump held in contempt the oath he took to support and defend the Constitution. Now that oath may bite him in the ass. The words of the 14^th Amendment, written 155 years ago, may help to defend our democracy today.

Please consider subscribing to Lucian Truscott Newsletter , from which this is reprinted with permission.

Federal Appeals Court Says Insurrectionists Could Be Disqualified From Election

Joining an insurrection against the United States is grounds for disqualifying a public official from continuing to hold office, a federal appeals court ruled on Tuesday.

The decision is a significant blow for Rep. Madison Cawthorn (R-NC), who suffered a not-so-surprising trouncing in the GOP primary for his seat in North Carolina’s 11th District.

Before the defeat, Cawthorn, an extremist Republican and staunch Trump ally, was challenged by North Carolina voters who argued that the lawmaker’s role in inciting the violent mob that later stormed the Capitol on January 6, 2021 was enough reason to ban him from ever holding public office again under the 14th Amendment.

No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … 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," the amendment states clearly.

Cawthorn sued the North Carolina State Board of Elections in February to stop officials from entertaining any requests to re-examine his eligibility to run for reelection. The Republican lawmaker argued that an amnesty law Congress passed in 1872 meant that the disqualification language in the 14th amendment didn’t apply to future insurrectionists, according to BuzzFeed.

On Tuesday, a panel of judges at the Fourth Circuit Court of Appeals sided with the plaintiff voters and ruled against Cawthorn. One of the court's three-judge panel, Judge Toby Heytens, wrote, “The issue currently before us is whether that same 1872 legislation also prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct. To ask such a question is nearly to answer it.”

“The available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness,” Heyten added.

“We hold that the 1872 Amnesty Act removed the Fourteenth Amendment’s eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment,” the ruling read.

Cawthorn argued that the case was moot because he had long since lost and conceded the race to his rival, but the court disagreed because the election results hadn’t been certified yet; therefore, the issue could reappear in another campaign, per the Daily Mail.

However, the court didn’t include any language in its ruling that indicated the judiciary considered the January 6 riot an insurrection, or whether the efforts of Trump and his allies to overturn the 2020 election results could disqualify them from holding office.

Free Speech for People, an advocacy group that backed the voters' challenges to Cawthorn, hailed the ruling as a major victory in its statement. “This ruling cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of 6 January 2021 – including Donald Trump – from the consequences of their actions.”

The group has brought similar cases against other Republicans closely tied to the horrific events of January 6: Reps. Marjorie Taylor Green (R-GA), Paul Gosar (R-AZ), Andy Biggs (R-AZ), and Mark Finchem, an Arizona state representative.

Neither of these cases has been successful.

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Smart. Sharp. Funny. Fearless

Start your day with The National Memo Newsletter

Trump's Supreme Court States The Obvious: He Owns Them

Imagine If Salvador Dali Painted A Surreal Supreme Court Appeal

That Wondrous, Thunderous 14th Amendment Down On Trump With Vengeance

Federal Appeals Court Says Insurrectionists Could Be Disqualified From Election

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